As filed with the Securities and Exchange Commission
on November 29, 1999
May 30, 2008
Registration No. 333-78603
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333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC
Washington, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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UNITY BANCORP, INC.
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(Exact name
(Exact Name of Registrant as Specified in Itsits Charter)
DELAWARE
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(State
New Jersey
(State or other jurisdictionOther Jurisdiction of incorporationIncorporation or organization)
Organization)
22-3282551
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(I.R.S.
(I.R.S. Employer Identification Number)
64 OLD HIGHWAYOld Highway 22, CLINTON, NEW JERSEYClinton, New Jersey 08809
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(Address, including zip code,
(908) 730-7630
(Address, Including Zip Code, and telephone number, including
area code,Telephone Number, Including Area Code, of agentRegistrant's Principal Executive Offices)
Alan J. Bedner, Chief Financial Officer
Unity Bancorp, Inc.
64 Old Highway 22
Clinton, New Jersey 08809
(908) 730-7630
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Agent for service)
----------------------
KEVIN KILLIAN, CHIEF FINANCIAL OFFICER
UNITY BANCORP, INC.
64 OLD HIGHWAY 22
CLINTON, NEW JERSEY 07416
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(Name, address, including zip code and telephone number,
including area codes, of agent for service)
WITH A COPY TO
ROBERTService)
with a copy to:
Robert A. SCHWARTZ, ESQ.
JAMIESON, MOORE, PESKINSchwartz, Esq.
Windels Marx Lane & SPICER
177 MADISON AVENUE
MORRISTOWN, NEW JERSEY 07960
Mittendorf, LLC
120 Albany Street Plaza
New Brunswick, New Jersey 08901
(723) 448-2548
Proposed sale will commence as soon as practicable after this registration
statement becomes effective.
(Approximate date of commencement of proposed sale to the public: as soon as
practicable after this Registration Statement becomes effective.
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public)
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_]
[X]
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 (the "Securities Act"), other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X]
[ ]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_]
[ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_][ ]
If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434, please462(e) under the Securities Act, check the following box. [_]
The registrant hereby amends[ ]
If this Form is a post-effective amendment to a registration statement on such datefiled pursuant to General Instruction I.D. filed to register additional securities or dates as may be necessaryadditional classes of securities pursuant to delay its effective date untilRule 413(b) under the registrant shall
fileSecurities Act, check the following box. [ ]
Indicated by check mark whether the registration is a further amendment which specifically states that thislarge accelerated filer, and accelerated filer, a non-accelerated filer, or a small reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [X]
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
| Title of Securities to be registered | Amount to be registered | Proposed maximum offering price per unit | Proposed maximum aggregate offering price | Amount of registration fee (1) |
Common Stock, no par value | 200,000 shares | $7.26 | $1,452,000.00 | $57.06 |
___________
(1) Estimated solely for the purpose of determining the registration statement shall thereafter become effectivefee, in accordance with Section 8(a) ofRule 457 under the Securities Act of 1933, or untilbased upon the registration statement shall become
effectiveaverage of the reported high and low sales prices of the Common Stock report on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUSNasdaq on May 28, 2008.
UNITY BANCORP, INC.
UP TO 102,459 SHARES OF
COMMON STOCK
We are a New Jersey based bank holding company. Our bank, Unity Bank, is
headquartered in Clinton, New Jersey. The
DIVIDEND REINVESTMENT PLAN
WITH OPTIONAL CASH INVESTMENT
Common Stock
(no par value)
This Prospectus relates to shares of common stock, thatno par value (the "Common Stock") of Unity Bancorp, Inc. (the "Company") available for purchase under the Unity Bancorp, Inc. Dividend Reinvestment Plan with Option Cash Investment (the "Plan"). The Plan provides each holder of Common Stock with a method of purchasing additional shares of Common Stock without payment of any brokerage commissions or other administrative fees of any kind.
The Plan consists of a dividend reinvestment component and a cash purchase component. The dividend reinvestment component permits a participant in the Plan to use such participant's cash dividends to purchase additional shares of the Common Stock. The cash purchase component allows a participant to make optional cash payments to purchase additional shares of Common Stock.
Shares of Common Stock available under the Plan may be sold pursuantobtained, at the option of the Company, on the open market or from the legally authorized but unissued shares of Common Stock held by the Company. The purchase price for shares obtained under the Plan will be based upon the market price of the Common Stock.
Each participant in the Plan should recognize that neither the Company nor Registrar and Transfer Company, the transfer agent administering the Plan for the Company, can provide any assurance that shares of Common Stock purchased under the Plan will, at any time, be worth more or less than their purchase price.
The Plan does not represent a change in the dividend policy of the Company, which will continue to depend upon earnings, financial requirements and other factors, and which will be determined by the Company's Board of Directors from time to time. Stockholders who do not wish to participate in the Plan will continue to receive cash dividends as declared. It is suggested that this Prospectus are owned by certain selling shareholders, and
are not being sold by us.
Our common stock is listed on the NASDAQ National Market under the
symbol "UNTY." We anticipate that the selling shareholders will offer the common
stockbe retained for resale at prevailing prices on the NASDAQ National Market from
time-to-time. We will pay the expenses for registering the common stock with the
Securities and Exchange Commission. The selling shareholders will pay all
selling and other expenses incurred by the selling shareholders.
Before purchasing the common stock, you should read the Risk Factors beginning
on page 1.
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Neither the SEC nor any State Securities Commission has approved the common
stock or determined that this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
The shares of common stock are not bank deposits and are not insured or
guaranteed by the Federal Deposit Insurance Corporation or any other government
agency.
future reference.
The date of this Prospectus is November 29, 1999.
TABLEMay 30, 2008.
INCORPORATION OF CONTENTS
RISK FACTORS.............................................................. 1
WHERE YOU CAN FIND ADDITIONAL INFORMATION................................. 8
UNITY BANCORP, INC........................................................ 9
USE OF PROCEEDS........................................................... 10
SELLING SHAREHOLDERS...................................................... 10
PLAN OF DISTRIBUTION...................................................... 10
TRANSFER AGENT ........................................................... 11
LEGAL MATTERS............................................................. 11
EXPERTS .................................................................. 11
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS.......................... 13
SIGNATURES................................................................ 16
RISK FACTORS
You should consider the following risk factors, in addition to other
information contained or incorporatedCERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this prospectus before
deciding to purchase our common stock.
RISKS ASSOCIATED WITH THE COMPANY:
WE HAVE RECENTLY INCURRED SIGNIFICANT LOSSES WHICH COULD ADVERSELY AFFECT THE
COMPANY.
We have incurred net losses of $375 thousand and $1.7 million in the
second and third quarter of 1999, respectively. There can be no assurance that
we will be able to grow the core deposits of the bank, restructure the funding
mix and restore the company to profitability.
IT MAY BE DIFFICULT FOR US TO MANAGE OUR GROWTH AND TO RESTRUCTURE THE COMPANY'S
FUNDING MIX.
In the past twelve months, we opened ten new branches, more than
doubling our branch network. This expansion has significantly increased our
expenses contributing to the losses we incurred in 1999. In order to grow these
branches and restore the company to profitability, we must generate an
increasing level of low cost core deposits in order to restructure the company's
funding mix. Our ability to do this will be affected, at least in part, by
factors beyond our control, such as economic conditions and interest rate
trends. There can be no assurance that we will be able to increase the amount of
deposits at existing branches to the level necessary for them to contribute to
our profitability.
OUR RELIANCE ON MUNICIPAL DEPOSITS COULD ADVERSELY AFFECT OUR LIQUIDITY.
The bank presently relies on a high concentration of deposits from
municipalities. These deposits have short maturities and are historically
sensitive to competitive market rates of interest. There can be no assurance
that these deposits will remain with the bank. Withdrawal of these deposits
could cause liquidity problems for the bank.
A PERIOD OF RISING INTEREST RATES, AN ECONOMIC SLOWDOWN OR RECESSION COULD
REDUCE THE DEMAND FOR MORTGAGES AND ADVERSELY IMPACT OUR MORTGAGE BANKING
SUBSIDIARY.
Rising interest rates generally reduce the demand for consumer credit,
including mortgage loans. In a period of rising interest rates or an economic
slowdown, we will originate and sell fewer loans. Accordingly, a period of
rising interest rates, an economic slowdown or a recession would adversely
affect our business and the results of operations of our mortgage banking
subsidiary.
1
OUR MORTGAGE BANKING BUSINESS MAY SUFFER IF WE CANNOT ATTRACT OR RETAIN
QUALIFIED LOAN ORIGINATORS.
We depend on our loan originators to generate customers by, among other
things, developing relationships with consumers, real estate agents and brokers,
builders, corporations and others, which we believe leads to repeat and referral
business. Accordingly, we must be able to attract, motivate and retain skilled
loan originators. The market for such persons is highly competitive and
historically has experienced a high rate of turnover. Competition for qualified
loan originators may lead to increased costs to hire and retain them. We cannot
guarantee that we will be able to attract or retain qualified loan originators.
If we cannot attract or retain a sufficient number of skilled loan originators,
or even if we can retain them but at higher costs, our business and results of
operations of our mortgage banking subsidiary could be adversely affected.
CURTAILMENT OF THE SMALL BUSINESS ADMINISTRATION LOAN PROGRAM COULD NEGATIVELY
AFFECT THE COMPANY.
The bank has generally sold the guaranteed portion and has occasionally
sold part of the unguaranteed portion of SBA loans in the secondary market.
There can be no assurance that the bank will be able to continue originating
these loans, or that a secondary market will exist for, or that the bank will
continue to realize premiums upon the sale of, the guaranteed and unguaranteed
portions of the SBA loans. The federal government presently guarantees 75% to
90% of the principal amount of each qualifying SBA loan. There can be no
assurance that the federal government will maintain the SBA program, or if it
does, that such guaranteed portion will remain at its current funding level.
Furthermore, there can be no assurance that the bank will retain its preferred
lender status, which, subject to certain limitations, allows the bank to approve
and fund SBA loans without the necessity of having the loan approved in advance
by the SBA, or that if it does, that the federal government will not reduce the
amount of such loans which can be made by the bank. In addition, the bank relies
on the expertise of a few key officers in its SBA lending. The retention of such
officers is important to the success of the SBA lending and the amount of income
the bank derives from SBA lending. The bank believes that its SBA loan portfolio
does not involve more than a normal risk of collectability. However, since the
bank has sold the guaranteed portion of substantially all of its SBA loan
portfolio, the bank incurs a pro rata credit risk on the non-guaranteed portion
of the SBA loans since the bank shares pro rata with the SBA in any recoveries.
In the event of default on a SBA loan, the bank's pursuit of remedies against a
borrower is subject to SBA approval, and where the SBA establishes that its loss
is attributable to deficiencies in the manner in which the loan application has
been prepared and submitted, the SBA may decline to honor its guarantee with
respect to the bank's SBA loans or it may seek the recovery of damages from the
bank. The SBA has never declined to honor its guarantees with respect to the
bank's SBA loans, although no assurance can be given that the SBA would not
attempt to do so in the future.
2
WE DO NOT CURRENTLY HAVE AN EXPERIENCED BANKING PROFESSIONAL AS PRESIDENT.
Our President and Chief Operating Officer, who also served as the
President of our bank subsidiary, recently resigned. Mr. Robert J. Van
Volkenburgh, our Chief Executive Officer, is currently serving as interim
President of the bank. Mr. Van Volkenburgh is not an experienced banking
professional. Although we recently hired an Executive Vice President and Chief
Operating Officer, we do not currently have an experienced banking professional
as President.
WE MAY INCUR SIGNIFICANT DAMAGES AS A RESULT OF POTENTIAL LEASE OBLIGATIONS.
In August, 1999, the bank entered into leases or subleases for five (5)
potential branch locations. Under the terms of these agreements, the annual
lease obligation in the base year of the leases is $428 thousand in the
aggregate, $471,000 on a fully phased in basis beginning in the fourth year of
the lease term, and increases thereafter based on increases in the consumer
price index and the lease terms range from 12 to 18 years. Payments on the
leases were to commence on January 1, 2000. Subsequent to September 30, 1999,
the bank provided the landlord under the leases and sublease with notice to
terminate each of the leases and the sublease. Although no legal action has been
commenced, the landlord, through its counsel, has indicated that it does not
agree with the bank's right to terminate the leases. If the bank were found to
be liable for improperly terminating these agreements, the bank could incur
significant damages.
WE MAY BE SUBJECT TO HIGHER OPERATING COSTS AS A RESULT OF GOVERNMENT
REGULATION.
We are subject to extensive federal and state legislation, regulation
and supervision which is intended primarily to protect depositors and the
Federal Deposit Insurance Corporation's Bank Insurance Fund, rather than
investors. Legislative and regulatory changes may increase our costs of doing
business or otherwise adversely affect us and create competitive advantages for
non-bank competitors.
WE CANNOT PREDICT HOW CHANGES IN TECHNOLOGY WILL IMPACT OUR BUSINESS.
The financial services market, including banking services, is
increasingly affected by advances in technology, including developments in:
o telecommunications;
o data processing;
o automation;
o Internet-based banking;
o telebanking; and
o debit cards and so-called "smart cards."
3
Our ability to compete successfully in the future will depend on
whether we can anticipate and respond to technological changes. To develop these
and other new technologies we will likely have to make additional capital
investments. Although we continually invest in new technology, we cannot assure
you that we will have sufficient resources or access to the necessary
proprietary technology to remain competitive in the future.
CHANGES IN LOCAL ECONOMIC CONDITIONS COULD ADVERSELY AFFECT OUR LOAN PORTFOLIO.
Our success depends to a certain extent upon the general economic
conditions of the local markets that we serve. Unlike larger banks that are more
geographically diversified, we provide banking and financial services primarily
to customers in the four counties in central New Jersey markets in which we have
branches, so any decline in the economy of New Jersey could have an adverse
impact on us.
Our loans, the ability of borrowers to repay these loans and the value
of collateral securing these loans, are impacted by economic conditions. In
addition, a large portion of our income is generated from gains on the sale of
SBA loans and from the generation and sale of mortgage loans and the related
servicing. Our financial results, the credit quality of our existing loan
portfolio, and the ability to generate new loans with acceptable yield and
credit characteristics may be adversely affected by changes in prevailing
economic conditions, including declines in real estate values, changes in
interest rates, adverse employment conditions and the monetary and fiscal
policies of the federal government. Although economic conditions in our primary
market area are strong and have aided our recent growth, we cannot assure you
that these conditions will continue to prevail. We cannot assure you that
positive trends or developments discussed in this Memorandum will continue or
that negative trends or developments will not have a significant adverse effect
on us.
FAILURE BY US OR OUR SUPPLIERS AND CUSTOMERS TO ENSURE THAT COMPUTER SYSTEMS ARE
YEAR 2000 COMPLIANT COULD HAVE AN ADVERSE EFFECT ON US.
We face significant business issues regarding how existing application
software programs and operating systems can accommodate the date value for the
year 2000. Many existing software application products, including software
application products used by us and our suppliers and customers, were designed
to accommodate only a two-digit date value, which represents the year. The
interruption to our business could be substantial if our current data processor
fails to become year 2000 compliant. In addition, failure by our suppliers and
customers to modify and convert their own computer systems could have a
significant adverse effect on the suppliers' or customers' operations and
profitability, thus inhibiting their ability to provide services or repay loans
to us.
4
OUR ALLOWANCE FOR LOAN LOSSES MAY NOT BE ADEQUATE TO COVER ACTUAL LOSSES.
Like all financial institutions, we maintain an allowance for loan
losses to provide for loan defaults and nonperformance. Our allowance for loan
losses may not be adequate to cover actual losses, and future provisions for
loan losses could materially and adversely affect results of our operations.
During the quarters ended June 30, 1999 and September 30, 1999 we made
substantial additional provisions to our allowance. Risks within the loan
portfolio are analyzed on a continuous basis by management, by an independent
loan review function and by the audit committee. A risk system, consisting of
multiple grading categories, is utilized as an analytical tool to assess risk
and the appropriate level of loss reserves. Along with the risk system,
management further evaluates risk characteristics of the loan portfolio under
current and anticipated economic conditions and considers such factors as the
financial condition of the borrowers, past and expected loan loss experience,
and other factors management feels deserve recognition in establishing an
adequate reserve. This risk assessment process is performed at least quarterly,
and, as adjustments become necessary, they are realized in the periods in which
they become known. The amount of future losses is susceptible to changes in
economic, operating and other conditions, including changes in interest rates,
that may be beyond our control, and these losses may exceed current estimates.
State and federal regulatory agencies, as an integral part of their examination
process, review our loans and allowance for loan losses and have in the past
required an increase in our allowance for loan loss. Although we believe that
our allowance for loan losses is adequate to cover anticipated losses, we cannot
assure you that we will not further increase the allowance for loan losses or
that regulators will not require us to increase this allowance. Either of these
occurrences could adversely affect our earnings.
WE MAY BE UNABLE TO MANAGE INTEREST RATE RISKS THAT COULD REDUCE OUR NET
INTEREST INCOME.
Our profitability is in large part a function of the spread between the
interest rates earned on assets and the interest rates paid on deposits and
other interest-bearing liabilities. We manage this interest rate spread while
attempting to stay within risk guidelines established by our Board of Directors.
At September 30, 1999, our simulation model showed that we were not in
compliance with these guidelines, and that upon a 300 basis point increase in
interest rates over the next twelve months, our net interest income would show a
13.8% decline and our net income would decline by $1.8 million. Although we are
attempting to reorganize our balance sheet to reduce our exposure to interest
rate risk, we can give you no assurance that we will be able to reduce this risk
or that our performance will not be negatively impacted during the
restructuring.
WE ARE UNDERCAPITALIZED.
The bank is deemed "undercapitalized" under federal regulations because
our total risk based capital ratio at September 30, 1999 of 6.29% is less than
the 8% required under federal regulation. Because we are undercapitalized, the
bank is required to submit a capital plan to the FDIC by December 15. In
addition, the bank is generally prohibited from making capital distributions to
us, paying management fees to any entity that controls the bank or increasing
its
5
average assets until the capital plan has been approved. The Board of Governors
of the Federal reserve System, our primary regulator, could also seek to take
regulatory action against us, including requiring a capital plan or prohibiting
us from expanding through acquisitions or otherwise, until we meet all capital
guidelines. In addition, in connection with our branch expansion the New Jersey
Department of Banking and Insurance imposed a tier 1 capital to total assets
ratio of 6%. At September 30, 1999, the bank's leverage ratio of tier 1 capital
to average assets was 4.28%, less than the 6% required by the New Jersey
Department of Banking and Insurance. The bank may not pay dividends to us until
its tier 1 capital ratio is above 6%.
RISKS ASSOCIATED WITH THE BANKING INDUSTRY:
WE ARE IN COMPETITION WITH MANY OTHER BANKS, INCLUDING LARGER COMMERCIAL BANKS
WHICH HAVE GREATER RESOURCES THAN US
The banking industry within the State of New Jersey is highly competitive.
The bank's principal market area is served by branch offices of large commercial
banks and thrift institutions. A number of these institutions have substantially
greater resources than we do to expend upon advertising and marketing, and their
substantially greater capitalization enables them to make much larger loans. Our
success depends a great deal upon our judgment that large and mid-size financial
institutions do not adequately serve small businesses in our principal market
area and our ability to compete favorably for such customers. In addition to
competition from larger institutions, we also face competition for individuals
and small businesses from recently formed banks seeking to compete as "home
town" institutions. Most of these new institutions have focused their marketing
efforts on the smaller end of the small business market we serve.
THERE IS A RISK THAT WE MAY NOT BE REPAID IN A TIMELY MANNER, OR AT ALL, FOR
LOANS WE MAKE
The risk of nonpayment (or deferred or delayed payment) of loans is
inherent in commercial banking. Such non payment, or delayed or deferred payment
of loans to the bank, if they occur, may have a material adverse effect on our
earnings and overall financial condition. Additionally, in compliance with
applicable banking laws and regulations, the bank maintains an allowance for
loan losses created through charges against earnings. As of September 30,
1999, the bank's allowance for loan losses was $2.2 million. The bank's
marketing focus on small to medium-size businesses may result in the assumption
by the bank of certain lending risks that are different from or greater than
those which would apply to loans made to larger companies. We seek to minimize
our credit risk exposure through credit controls which include evaluation of
potential borrowers, available collateral, liquidity and cash flow. However,
there can be no assurance that such procedures will actually reduce loan losses.
6
THE LAWS THAT REGULATE OUR OPERATIONS ARE DESIGNED FOR THE PROTECTION OF
DEPOSITORS AND THE PUBLIC, BUT NOT OUR STOCKHOLDERS
The federal and state laws and regulations applicable to our operations
give regulatory authorities extensive discretion in connection with their
supervisory and enforcement responsibilities, and generally have been
promulgated to protect depositors and the deposit insurance funds and not for
the purpose of protecting stockholders. These laws and regulations can
materially affect our future business. Laws and regulations now affecting us may
be changed at any time, and the interpretation of such laws and regulations by
bank regulatory authorities is also subject to change. We can give no assurance
that future changes in laws and regulations or changes in their interpretation
will not adversely our the business.
7
WHERE YOU CAN FIND MORE INFORMATION
We have incorporated by reference into this prospectus the following documents weheretofore filed with the Securities and Exchange Commission under the Securities Exchange Act of
1934:
o(the “Commission”): (i) the audited financial statements of Unity Bancorp, Inc. as of and for the years ended December 31, 2006 and 2007 included in the Company's Annual Report on Form l0-KSB10-K and the unaudited financial statements as of and for the fiscal yearthree months ended DecemberMarch 31, 1998,
o2007 and 2008 included in the Company's Quarterly Report on Form 10-Q; and (ii) the Proxy Statement for the 1999 Annual Meeting of
Shareholders,
o (iii) the description of the common stockCompany's Common Stock which is contained in ourthe Company's Registration Statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report
filed under the Exchange Act for the purpose of updating that
description,
o (iv) the Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999.
8-A.
In addition, anyall documents which we filesubsequently filed by the Company with the Commission underpursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectusProspectus and prior to the termination of this offering are alsoshall be deemed incorporated by reference into this prospectus. You may readProspectus and copy anyto be a part hereof from the date of filing of such documents. Any statement contained herein or in a document we file at the Commission's publicincorporated or deemed to be incorporated by reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0300herein shall be deemed to be modified or superseded for further information on the public reference rooms. Our
SEC filings are also availablepurposes of this Prospectus to the public atextent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus.
The Company has filed with the SEC's web site at
http://www.sec.gov.
YouCommission a Registration Statement on Form S-3 (together with the exhibits and any amendments thereto, the “Registration Statement”) under the Securities Act of 1933, as amended, of which this Prospectus is a part. This Prospectus does not contain all the information set forth in the Registration Statement, to which reference is hereby made, copies of which may obtainbe obtained from the Commission as specified above.
The Company will provide without charge to each person to whom a copy of this Prospectus is delivered, upon such person's written or oral request, a copy of any and all of the documents which are incorporated by reference into this prospectus, except for
theherein (other than exhibits to such documents, unless thesuch exhibits are specifically incorporated by reference into this prospectus. Your requestsuch documents). Such requests should be sentdirected to Kevin Killian, Chief
Financial Officer, Unity Bancorp, Inc., 64 Old Highway 22, Clinton, New Jersey 08809.
8
UNITY BANCORP, INC.
We are a New Jersey business corporation and a holding company for
THE COMPANY
The Company was organized in February, 1994 by the Board of Directors of Unity Bank which engages in(the "Bank"). The Bank is a commercial banking business in Hunterdon, Middlesex,
Morris, Somerset and Union counties, New Jersey. We direct the policies and
coordinate the financial resourceswholly owned subsidiary of the bank.Company. The bankBank is a New Jersey state-charteredstate chartered commercial bank which commenced businessformed in 1991. The bank currently operates from its main office inoffices of the Company and the Bank are located at 64 Old Highway 22, Clinton, New Jersey 08809.
As a bank holding company, the Company is subject to regulation and from sixteen branch offices located in Berkeley Heights, Colonia, Cranford,
Flemington, Highland Park, Linden, North Plainfield, South Plainfield, Edison,
Springfield (2 offices), Scotch Plains, Kenilworth, East Brunswick, Union and
Whitehouse, New Jersey. The depositssupervision by the Board of Governors of the bank are insuredFederal Reserve System under the Bank Holding Company Act of 1956, as amended. In addition to the Federal Reserve, the Bank is subject to regulation by the Bank
Insurance Fund of the FDIC up to applicable limits. The operations of the bank
are subject to the supervision and regulation of the New Jersey Department of Banking and Insurance and the FDIC.
We lendFederal Deposit Insurance Corporation. The principal source of funds for dividend payments by the Company is dividends paid by the Bank to individualsthe Company. The amount of dividends paid by the Bank is limited by state and businesses for personalfederal laws and commercial
purposes. We emphasize the origination of loans with adjustable rates of
interest tied to our Prime Rate. regulations.
The interest rates on our adjustable rate loans
are repriced from time-to-time to reflect changes, up or down, in our cost of
funds. In order to be competitive with other established banking institutions in
our trade area, we charge rates which are generally comparable to those charged
by other lenders.
In addition, we have been very active in providing loans to small
businesses through the United States Small Business Administration guaranteed
loan program. Under the SBA program, loans are available to small businesses
which meet certain criteria. Up to 90%provisions of the principalCompany's Dividend Reinvestment Plan with Option Cash Investment (the "Plan") are presented herein in a question and answer format. Those stockholders who do not participate in the Plan will continue to receive cash dividends, if and when declared.
THE PLAN
The Plan provides stockholders with a simple method of a loan to a qualified
business mayobtaining additional shares of Common Stock by reinvesting their cash dividends or making optional cash payments without payment of any brokerage commission or administrative commissions or fees. The Plan will be guaranteedadministered by the United States Government. We sellCompany's stock transfer agent, Registrar and Transfer Company.
DESCRIPTION OF THE PLAN
The following provides a description of the guaranteed portionPlan in question and answer format.
1.WHAT IS THE PURPOSE OF THE PLAN?
The purpose of our SBA loans into the secondary marketPlan is to provide stockholders of the Company with an opportunity to increase their investment in the Common Stock without paying brokerage commissions or other administrative fees of any kind. Stockholders may purchase additional shares of the Common Stock under the Plan.
2.WHO ADMINISTERS THE PLAN?
The Plan is administered by Registrar and derive premium
income. Our ability to offer SBA loansTransfer Company ("R&T"), the Company's transfer agent acting as agent for each participant. R&T will apply cash dividends on an ongoing basis depends on among
other factors, appropriation of funds by the federal governmentCommon Stock subject to the SBA
program. We have been designated a "preferred lender" forPlan (including shares held in the states of New
Jersey, Delaware, New Yorkparticipant's name and Pennsylvania byshares accumulated under the SBA. This means that we may
originate SBA guaranteed loans without prior SBA approval, although the
guaranteed portion of this loan will be 80% for loans upPlan), together with any optional cash payments received from such participant, to $100,000 and 75% for
loans over $100,000 and up to $1,000,000.
Our commercial loans are generally secured by business assets, personal
guarantees of the principals of closely-held businesses and often by the
personal assets of such principals. The loans are made to small and mid-sized
businesses in our trade area. Federal and state law and regulations restrict how
much any bank may lend to a single customer with the restrictions stated as a
percentage of the bank's primary capital. We believe that we can attract
commercial borrowers by providing competitive rates, superior services, local
decision-making and flexibility in loan structure. The Board of Directors
believes that small and mid-sized businesses are not always of primary
importance to larger banking institutions for commercial lending purposes,
but those businesses represent the main portion of our commercial loan
business.
We grant both secured and unsecured personal loans to finance the purchase of automobiles, durable goodsadditional whole and fractional shares of Common Stock for such participant.
Any questions and correspondence concerning the Plan should be directed to: Registrar and Transfer Company, 10 Commerce Drive, Cranford, NJ 07016-3572.
Any written correspondence sent to R&T should refer to Unity Bancorp, Inc. or include the bottom portion of a participant's account statement with such correspondence.
3. WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?
All stockholders of record of the Company are eligible to participate in the Plan. Any stockholders whose shares are registered in names other consumer goods. than their own (i.e. the name of a brokerage firm, bank or nominee) must either become stockholders of record by having their shares transferred into their own names. Once a stockholder becomes a registered stockholder of record, he or she will be eligible to participate in the Plan and may do so by completing an authorization card.
4.HOW DOES A STOCKHOLDER ENROLL IN THE PLAN?
Stockholders may enroll in the Plan by completing an authorization card. If R&T receives the signed authorization card at least 20 days prior to the date on which a dividend will be paid ("Dividend Payment Date"), the Plan will become effective for the participant as of that Dividend Payment Date. Otherwise, the Plan will be effective for such participant as of the next Dividend Payment Date. Once a participant has enrolled in the Plan, the participant may begin making optional cash payments immediately. Optional cash payments may only be made during the 30 business day period preceding a Dividend Payment Date.
5.WHAT ARE THE INVESTMENT OPTIONS UNDER THE PLAN AND THE PURCHASE PRICE FOR SHARES UNDER EACH OPTION?
The BoardPlan consists of Directors believesa dividend reinvestment component and an optional cash purchase component.
DIVIDEND REINVESTMENT COMPONENT. Participants under the Plan may reinvest their cash dividends to purchase additional shares of Common Stock, which will be credited to their accounts. Dividends on the shares of Common Stock credited to participants' accounts under the Plan will also be reinvested for the participants, thereby compounding their investments. All shares of Common Stock purchased pursuant to the Plan will be purchased either directly from the Company, in which case the shares will be issued by the Company out of its legally authorized but unissued shares of Common Stock, or on the open market at then current market prices. The choice of whether shares will be purchased from the Company or on the open market will be determined by the Company in its discretion, based on the best interests of the Company.
The purchase price for Common Stock purchased from the Company will be the average market price of Common Stock for the five (5) business days preceding the Dividend Payment Date. The market price will be the closing price for the Common Stock, as reported by the Nasdaq. The purchase price for Common Stock purchased through the Plan on the open market will be R&T's actual purchase price for the Common Stock.
OPTIONAL CASH PURCHASE COMPONENT. Participants may purchase additional shares of Common Stock by sending R&T any amount between $100 and $2,500 per dividend period. These cash payments will be used to purchase additional shares of Common Stock at of current market prices. Optional cash payments must be received by R&T no more than 30 business days and no less than five (5) business days prior to a Dividend Payment Date. Payments that our competitiveare not received within this period will be returned to a participant.
Payments received from a participant within the above-described time period will be held by R&T and combined with funds from that participant's cash dividend for purchase of Common Stock under the Plan. No interest rateswill be paid on these funds. Optional cash payments should be made by check or money order made payable to R&T. At the discretion of the Company, all shares will be purchased either directly from the Company and superior service
(which includes, among other things, convenience,
9
personal attentionissued out of the Company's legally authorized but unissued shares, or purchased on the open market.
The purchase price for Common Stock purchased through optional cash purchases will be the average market price of the Common Stock for the five (5) business days preceding the Dividend Payment Date, if the shares are issued directly from the Company. The average market price will be the closing price for the Common Stock, as reported by the Nasdaq. The purchase price for Common Stock purchased through optional cash purchases on the open market will be R&T's actual purchase price.
6.WHAT ARE THE LIMITS ON OPTIONAL CASH PAYMENTS?
Optional cash payments are limited to a minimum of $100 and prompt local decision-making)a maximum of $2,500 per quarter. No interest will be paid on voluntary cash payments held by R&T prior to their investment. Cash payments must be received by R&T no more than 30 business days and no less than five (5) business days prior to a Dividend Payment Date. Payments that are important competitive
factorsnot received within this period will be returned to the participants.
7.WHEN WILL PURCHASES OF SHARES BE MADE?
R&T will make every reasonable effort to invest all dividends and optional cash payments as promptly after receipt as possible. Participants' funds held by R&T prior to purchase during this period will not bear interest. Investment in attracting personal loansthe Common Stock will then be completed as soon as possible.
8.HOW WILL PURCHASES UNDER THE PLAN BE MADE?
All purchases of Common Stock under the Plan will be made, at the discretion of the Company, either directly from credit-worthy consumers.
Wethe Company and issued out of the Company's legally authorized but unissued shares or on the open market.
9.HOW MANY SHARES OF COMMON STOCK WILL BE CREDITED TO PARTICIPANTS?
For each participant in the Plan, the entire amount of such participant's dividend and any optional cash payment will be used to purchase the Common Stock. If the amount purchased is not equal to an exact whole number of shares, the participant's account will be credited with a fractional share (calculated to four (4) decimal places).
10.WILL CERTIFICATES BE ISSUED FOR COMMON STOCK PURCHASES?
The shares of Common Stock purchased under the Plan will be held by R&T in a participant's account without charge. Upon receipt of a written request from a participant, the Company will issue a certificate or certificates representing the whole shares of Common Stock in such participant's account.
11.CAN A PARTICIPANT ADD SHARES TO HIS OR HER ACCOUNT BY TRANSFERRING STOCK CERTIFICATES THAT HE OR SHE POSSES?
Yes. A participant may increase the number of shares held n his account by depositing certificates representing shares of Common Stock with the Plan Administrator. Such certificates must be presented in transferable form and must be accompanied by a written request that the shares be added to the participant's account.
12.WHAT HAPPENS IF A PARTICIPANT SELLS ALL OF THE SHARES FOR WHICH THE PARTICIPANT HAS RECEIVED A CERTIFICATE?
Participation in the Plan will apply to all shares of Common Stock that are registered to a Participant at the time of enrollment, plus all shares of Common Stock that the Participant acquires while his or her authorization remains in effect. If a participant sells all the shares for which he has a certificate, but his participation in the Plan is not terminated, dividends on the shares of Common Stock held in such participant's account under the Plan will continue to be reinvested.
13.ARE THERE ANY FEES OR EXPENSES INCURRED BY PARTICIPANTS IN THE PLAN?
There are no additional fees or expenses charged to stockholders who participate in the Plan. The Company will pay all administrative fees connected with a stockholder's participation in the Plan. The only cost to a participant is a termination fee if the participant decides to withdraw from the Plan. (See DESCRIPTION OF THE PLAN--HOW DOES A PARTICIPANT WITHDRAW FROM THE PLAN)
14.HOW DOES A PARTICIPANT WITHDRAW FROM THE PLAN?
A participant may withdraw from the Plan at any time and for any reason. The participant must give R&T written notice of withdrawal from the Plan at least 30 days before a Dividend Payment Date. The notice should include a termination fee of $3.00. Upon termination, the Company will provide the participant with a certificate for the total number of whole shares credited to such participant's account under the Plan and a check for any fraction of a share of Common Stock, or a check for the total shares held in the Plan valued at the then current market price of the Common Stock. R&T may also make residentialterminate a participant's account at any time in its discretion by notice in writing mailed to the participant.
15.HOW WILL A PARTICIPANT'S COMMON STOCK BE VOTED AT MEETINGS OF STOCKHOLDERS?
Each participant will have the sole right to vote any whole shares (but not fractional shares) purchased for such participant's account under the Plan on the record date for a vote. Shares for which no voting instructions are received will not be voted.
16.WHO INTERPRETS THE PLAN?
R&T, as transfer agent for the Company, will interpret the Plan. The terms, conditions, and commercial real estate loansoperations of the Plan are governed by the laws of the State of New Jersey.
17.WHAT REPORTS WILL BE SENT TO PARTICIPANTS IN THE PLAN?
R&T will provide each participant with an account statement each time shares of Common Stock are purchased for the participant under the Plan. The statement will show the total number of whole and fractional shares in the participant's account as of a certain date, as well as the amount of the most recent dividend, any optional cash payments concurrently invested, the number of shares of Common Stock purchased and the price per share. The price per share is the average price of all shares purchased under the Plan for all participants in connection with a given dividend, including shares purchased with any optional cash payments.
Dividends on the accumulated shares and any fees paid on a limitedparticipant's behalf by the Company will be included in an information tax return filed with the Internal Revenue Service. A copy of this return will also be supplied to participants.
18.MAY THE PLAN BE AMENDED, SUPPLEMENTED OR TERMINATED?
The Plan may be amended, supplemented or terminated by R&T or the Company at any time by the delivery of written notice to each participant at least 30 days prior to the effective date of the amendment, supplement or termination. Any amendment or supplement shall be deemed to be accepted by the participant unless prior to its effective date, R&T receives written notice of termination of the participant's account under the Plan.
19.WHAT IS THE RESPONSIBILITY OF THE COMPANY AND R&T UNDER THE PLAN?
Neither the Company nor R&T shall have any responsibility beyond the exercise of ordinary care for any action taken or omitted pursuant to the Plan; nor shall they have any duties, responsibilities or liabilities except as are expressly set forth herein; nor shall they be liable for any act done in good faith or for any good faith omission to act; nor shall they have any liability in connection with an inability to purchase shares or with respect to the timing or the price of any purchase.
20.HOW IS A RIGHTS OFFERING, STOCK DIVIDEND, OR STOCK SPLIT HANDLED UNDER THE PLAN?
Any stock dividend or stock split applicable to shares of Common Stock held by a participant under the Plan, whether held in the participant's account or in the participant's own name, will be credited to the participant's account. In the event the Company makes available to stockholders the rights to purchase additional shares or securities, participants under the Plan will receive a subscription warrant for such rights directly from R&T.
21.WHAT IS THE TAX STATUS OF REINVESTED CASH DIVIDENDS AND SHARES OF COMMON STOCK ACQUIRED THROUGH THE PLAN?
ACQUISITION OF COMMON STOCK UNDER THE PLAN: For federal income tax purposes, participants in the Plan who have their cash dividends reinvested in Common Stock under the Plan will be treated the same as nonparticipants with respect to the cash dividends on their shares of Common Stock. All participants in the Plan will be treated as having received on each Dividend Payment Date the full amount of the cash dividend for that Dividend Payment Date, regardless of whether the cash dividends are actually received or are applied to the purchase of shares of Common Stock under the Plan.
Participants in the Plan who have their cash dividends reinvested in Common Stock will also be treated as if they actually received a cash dividend to the extent and in the amount that any administrative fees are paid by the Company on their behalf. Each participant in the Plan will have a tax basis construction loans.
Our principal executive offices are located at 64 Old Route 22, Clinton,
New Jersey 08809, and our telephone number is (908) 730-7630.
in the shares of Common Stock purchased equal to the amount of cash dividends applied to the purchase of such shares of Common Stock plus any administrative fees.
USE OF PROCEEDS
We
The Company does not know precisely the number of shares of its Common Stock that it will not receive anyultimately sell under the Plan or the prices at which those shares will be sold. The net proceeds from the sale of Common Stock offered pursuant to the common stock byPlan will be used for general corporate purposes, including without limitation, investments in and advances to the selling shareholders.
SELLING SHAREHOLDERS
Barry Habib, Norman HunterBank and Craig Frankel areany other subsidiaries which the selling
shareholders. They acquired the sharesCompany may form or acquire.
INDEMNIFICATION
Article Nine of the common stockCompany's Certificate of Incorporation requires the Company to indemnify its officers, directors, employees and agents and former officers, directors, employees and agents, and any other persons serving at the request of the Company as an officer, director, employee or agent of another corporation, association, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys' fees, judgments, fines and amounts paid in settlement) incurred in connection with any pending or threatened action, suit, or proceeding, whether civil, criminal, administrative or investigative, with respect to which such officer, director, employee, agent or other person is a party, or is threatened to be made a party, to the salefull extent permitted by the New Jersey Business Corporation Act.
The Company's Certificate of Incorporation also provides that the Company may purchase and maintain insurance on behalf of any person or persons enumerated in Article Nine thereof against any liability asserted against or incurred by such person or persons arising out of their company, Certified Mortgage Associates, Inc., tostatus as corporate directors, officers, employees, or agents whether or not the Company in February, 1999. Mr. Habib owns 90,164 shareswould have the power to indemnify them against such liability under the provisions of this article.
With respect to possible indemnification of officers, directors, employees and agents of the common stock, Mr. Frankel
owns 10,246 sharesCompany for liabilities arising under the Securities Act, the Company has been informed that in the opinion of the common stockSecurities and Mr. Hunter owns 2,049 sharesExchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
EXPERTS
The consolidated balance sheet of the common stock.
PLAN OF DISTRIBUTION
The common stock may be sold from time to time by the selling
shareholders in one or more transactions on the NASDAQ market or otherwise.
Alternatively, the selling shareholders may from time to time offer the common
stock through underwriters, dealers or agents. The distribution of the common
stock by the selling shareholders may be effected from time to time in one or
more transactions that may take place in the over-the-counter market including
ordinary broker's transactions, privately negotiated transactions, pledges, or
through sales to one or more broker/dealers for resale of such securities as
principals, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices. Usual and customary or
specifically negotiated brokerage fees or commissions may be paid by these
holders in connection with those.
We are registering the common stock as part of an agreement between the
selling shareholders and us in which we agreed to pay all expenses incident to
the registration of the common stock. We will not pay, among other expenses,
commissions and discounts of underwriters, dealers or agents or the fees and
expenses of counsel for the selling shareholders. In some cases, the company has
agreed to indemnify the selling shareholders against certain liabilities.
There can be no assurance that any of the selling shareholders will sell
any or all of the common stock offered by them hereunder.
TRANSFER AGENT
Our transfer agent for the common stock is FCTC Transfer Services, LLP,
with an office at 111 Wood Avenue South, Suite 206, Iselin, New Jersey.
10
LEGAL MATTERS
Jamieson, Moore, Peskin & Spicer, Morristown, New Jersey has passed
upon the validity of the common stock being offered.
EXPERTS
We have incorporated by reference into our 1998 Annual Report on Form
10-KSB our audited financial statementsCompany as of December 31, 19982006, and 1997the consolidated statements of income, changes in shareholders' equity and cash flows for each of the three years in the two-year period ended December 31, 1998 along with Arthur
Andersen LLP's audit report on these financial statements. Our 1998 Annual
Report is2006, have been incorporated by reference intoherein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The audit report covering the December 31, 2006 financial statements refers to the Company’s adoption of SEC Staff Accounting Bulletin No. 108, “Considering the Effects of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statements” on January 1, 2006.
The consolidated balance sheet of the Company as of December 31, 2007, and the consolidated statements of income, changes in stockholders' equity and cash flows for the year then ended, incorporated by reference in this registration statement on Form S-3
and prospectus. Arthur Andersenhave been audited by McGladrey & Pullen, LLP, issuedindependent public accountants, as indicated in their report as independent auditorswith respect thereto, and are included herein in reliance upon the authority of said firm as experts in accounting and auditing in giving said reports.
LEGAL OPINION
The validity of the shares of Common Stock offered hereby is being passed upon for the Company by Windels Marx Lane & Mittendorf, LLP, 120 Albany Street Plaza, New Brunswick, New Jersey, 08901.
No dealer, salesperson or other person has been authorized to give any information or to make any representations other than those contained in this Prospectus, and, accounting.
11
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR DOCUMENTS
TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT DOES NOT CONSTITUTE AN OFFER TO
SELL, OR THE SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES OFFERED
HEREBY TO ANY PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
WOULD BE UNLAWFUL. THE AFFAIRS OF if given or made, such information or representation must not be relied upon as having been authorized by the Company. This Prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any of the securities offered hereby in any jurisdiction in which, or to any person to whom, such offer or solicitation may not lawfully be made. Neither the delivery of this Prospectus nor any sales made hereunder shall, under any circumstances, create any implication that the information contained herein is correct as of any time subsequent to the date hereof.
UNITY BANCORP, INC. OR UNITY BANK MAY CHANGE
AFTER THE DATE OF THIS PROSPECTUS. DELIVERY OF THIS DOCUMENT AND THE SALES OF
SHARES MADE HEREUNDER DOES NOT MEAN OTHERWISE.
----------
UNTIL THE LATER OF DECEMBER 27, 1999 OR 25 DAYS AFTER COMMENCEMENT OF THE
OFFERING, ALL DEALERS EFFECTING TRANSACTIONS IN THESE SECURITIES, WHETHER OR NOT
PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS
IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITER AND
DIVIDEND REINVESTMENT PLAN
WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
UNITY BANCORP, INC.
Up to 102,459 Shares of
COMMON STOCK
----------
PROSPECTUS
----------
November 29, 1999
OPTIONAL CASH INVESTMENT
PART II. II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC Registration Fee ........................... $ 289.00
Accounting FeesOther Expenses of Issuance and Expenses ................... 5,000.00Distribution.
| SEC Registration Fee | $ | 57.06 |
| Legal Fees and Expenses | 1,000.00 | |
| Accounting Fees and Expenses | 25,000.00 | |
| Miscellaneous | 500.00 | |
| Total | $ | 26,557.06 |
Item 15. Indemnification of Directors and Expense ......................... 5,000.00
Transfer Agent Fees ............................ 2,000.00
Miscellaneous Expenses ......................... 7,711.00
----------
Total .......................................... $20,000.00
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Officers.
Article NinthNine of the Certificate of Incorporation of the Registrant and Section 145 of the Delaware GeneralNew Jersey Business Corporation Law ("DGCL"Act (the “BCA”) providesprovide that the corporation shall indemnify itsit's present and former officers, directors, employees, and agents and persons serving at its request ("corporate agents") against expenses, including attorney's fees, judgments, fines or amounts paid in settlement, incurred in connection with any pending or threatened civil or criminal proceeding involving the corporate agent by reason of his being or having been a corporate agent if (a) the agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation, and (b) with respect to any criminal proceeding, the corporate agent had no reasonable cause to believe his conduct was unlawful.
With respect to any derivative action, the Registrant is empowered to indemnify a corporate agent against his expenses (but not his liabilities) incurred in connection with any proceeding involving the corporate agent by reason of his being or having been a corporate agent if the agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. However, only the court in which the proceeding was brought can empower a corporation to indemnify a corporate agent against expenses with respect to any claim, issue or matter as to which the agent was adjudged liable for negligence or misconduct.
Under Section 145 of the DGCL,BCA, the Registrant may indemnify a corporate agent in a specific case if a determination is made by any of the following that the applicable standard of conduct was met: (i) the Board of Directors, or a committee thereof, acting by a majority vote of a quorum consisting of disinterested directors; (ii) by independent legal counsel, if there is not a quorum of disinterested directors or if the disinterested quorum empowers counsel to make the determination; or (iii) by the shareholders.
II-1
Section 145 of the DGCL
The BCA further provides that a corporate agent is entitled to mandatory indemnification to the extent that the agent is successful on the merits or otherwise in any proceeding, or in defense of any claim, issue or matter in the proceeding. In advance of the final disposition of a proceeding, the Registrant may pay an agent's expenses if the agent agrees to repay the expense unless it is ultimately determined he is entitled to indemnification.
Article NinthNine of the Certificate of Incorporation of the Registrant also provides that such indemnification shall not exclude any other rights to indemnification to which a person may otherwise be entitled, and authorizes the corporation to purchase insurance on behalf of any of the persons enumerated against any liability whether or not the corporation would have the power to indemnify him under the provisions of Article Ninth.
Nine.
With respect to possible indemnification of officers, directors, and other corporate agents for liabilities arising under the Securities Act, the Registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
ITEM
Item 16. EXHIBITS
Exhibit No. Description
----------- -----------
5 Opinion of Jamieson, Moore, Peskin & Spicer as to the legality
of the securities to be registered.*
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of Jamieson, Moore, Peskin & Spicer (Included in
Exhibit 5 hereto)Exhibits.*
- ----------
* Previously filed.
ITEM
| Exhibit No. | Description |
| (5) | Opinion of Windels Marx Lane & Mittendorf, LLP |
| (23)(a) | Consent of Consent of McGladrey & Pullen, LLP |
| (23)(b) | Consent of KPMG LLP |
| (23)(c) | The consent of Windels Marx Lane & Mittendorf, LLP is contained in their opinion filed as Exhibit(5) to this Registration Statement. |
Item 17. UNDERTAKINGS
Undertakings.
The undersigned Registrant hereby undertakes to file during any period in which it offers or sells securities,sales are being made, a post-effective amendment to this registration statementRegistration Statement to include any additional or changed material information onwith respect to the plan of distribution.
distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
The undersigned Registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to treat each post
effective amendment asSection 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement ofrelating to the securities offered therein, and the offering of thesuch securities at that time shall be deemed to be the initial bona fide offering and to file a post effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
II-2
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
thereof.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements of filing on Form S-3 and has duly caused this AmendmentRegistration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Clinton, State of New Jersey, on this 29th30th day of November, 1999.
May, 2008.
UNITY BANCORP, INC.
(Registrant)
By: /s/Robert J. Van Volkenburgh
------------------------------
Robert J. Van Volkenburgh
Chairman of the Board and
Chief Executive Officer
| By: | /s/ James. A. Hughes |
| James A. Hughes | |
| President and CEO | |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 has been signed below by the following persons in the capacities indicated on this 29th30th day of November, 1999.
May, 2008.
| Name | Title | Date |
| /s/ | Chairman of the Board | May 30, 2008 |
| David D. Dallas | ||
| /s/James A. Hughes | President, CEO and Director | May 30, 2008 |
| James A. Hughes | ||
| /s/ | Chief Financial Officer (principal financial and accounting officer) | May 30, 2008 |
| Alan J. Bedner |
| Name | Title | Date |
| Frank Ali | Director | May 30, 2008 |
| Frank Ali | ||
| /s/Mark S. Brody | Director | May 30, 2008 |
| Mark S. Brody | ||
| /s/ Wayne Courtright | Director | May 30, 2008 |
| Wayne Courtright | ||
| /s/Robert H. Dallas, II | Director | May 30, 2008 |
| Robert H. Dallas, II | ||
| /s/Charles S. Loring | Director | May 30, 2008 |
| Charles S. | ||
| /s/ | Director | May 30, 2008 |
| Peter E. Maricondo | ||
| /s/Allen Tucker | Director | May 30, 2008 |
| Allen Tucker |
Exhibit Index
| Exhibit No. | Description |
| (5) | Opinion of Windels Marx Lane & Mittendorf, LLP |
| (23)(a) | Consent of Consent of McGladrey & Pullen, LLP |
| (23)(b) | Consent of KPMG LLP |
| (23)(c) | The consent of Windels Marx Lane & Mittendorf, LLP is contained in their opinion filed as Exhibit(5) to this Registration Statement. |