AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBURARY 3, 2006
REGISTRATION NO. 333-128793
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Sun Bancorp, Inc.
(Exact name of registrant as specified in its charter)
New Jersey 52-1382541
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
226 Landis Avenue
Vineland, New Jersey 08360
(Address of Principal Executive Offices)
Advantage Bank 1999 Stock Option Plan
Advantage Bank 1999 Stock Option Plan for Non-Employee Directors
Advantage Bank 2001 Stock Option Plan for Non-Employee Directors
Advantage Bank 2002 Stock Option Plan for Non-Employee Directors
(Full Title of the Plans)
Dan A. Chila
Chief Financial Officer
226 Landis Avenue
Vineland, New Jersey 08360
(856) 691-7700
(Name and address of agent for service)
Copies to:
Richard Fisch, Esq.
Malizia Spidi & Fisch, PC
901 New York Avenue, NW
Suite 210 East
Washington, DC 20001
(202) 434-4660
CALCULATION OF REGISTRATION FEE
========================================================================================================
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Aggregate Offering Registration
be Registered Registered (1) Price Per Share(1) Price (1) Fee
- ------------- -------------- ------------------ --------- ---
Common Stock
$1.00 par value 160,862 shares N/A N/A (2)
per share
(1) The maximum number of shares of Common Stock issuable upon awards granted
under: (i) the Advantage Bank 1999 Stock Option Plan, (ii) the Advantage
Bank 1999 Stock Option Plan for Non-Employee Directors, (iii) the Advantage
Bank 2001 Stock Option Plan for Non-Employee Directors, and (iv) the
Advantage Bank 2002 Stock Option Plan for Non-Employee Directors ((i)-(iv),
collectively, the "Stock Option Plans") consists of 160,862 shares along
with an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) All filing fees payable in connection with the registration of the issuance
of these securities were paid in connection with the filing of the
Registrant's Form S-4 Registration Statement (333-128793) on October 3,
2005.
This amendment shall become effective in accordance with the provisions
of Rule 464 promulgated under the Securities Act of 1933.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 on Form S-8 amends the Registration
Statement (File No. 333-128793) previously filed on Form S-4 (together with
Pre-Effective Amendment No. 1, the "Original Registration Statement") by Sun
Bancorp, Inc. (the "Company") in connection with the merger (the "Merger") of
Advantage Bank ("Advantage") with and into Sun National Bank, a wholly owned
subsidiary of the Company ("Sun Bank"). The Original Registration Statement as
amended by this Post-Effective Amendment No. 1 is referred to herein as the
"Registration Statement."
In connection with the filing of the Original Registration Statement,
1,159,880 shares of the common stock, par value $1.00 per share, of the Company
("Company Common Stock") were registered with the Securities and Exchange
Commission (the "Commission") and the applicable filing fee was paid. The number
of shares so registered pursuant to the Original Registration Statement were
those shares expected to be distributed to the holders of common shares of
Advantage ("Advantage Common Stock") and those shares which are necessary to be
distributed, or reserved for issuance, to Advantage employees and directors in
connection with (i) the Advantage Bank 1999 Stock Option Plan, (ii) the
Advantage Bank 1999 Stock Option Plan for Non-Employee Directors, (iii) the
Advantage Bank 2001 Stock Option Plan for Non-Employee Directors and (iv) the
Advantage Bank 2002 Stock Option Plan for Non-Employee Directors ((i)-(iv),
collectively, the "Stock Option Plans").
Pursuant to the Agreement and Plan of Merger, dated as of August 25,
2005, by and among the Company, Sun Bank and Advantage (the "Merger Agreement"),
each option to purchase Advantage Common Stock granted under the Stock Option
Plans and outstanding as of the effective time of the Merger was converted into
an option to purchase shares of Company Common Stock on substantially the same
terms and conditions applicable under the Advantage Option Plans and related
award agreement, except that the number of shares of Company Common Stock
subject to each such option was adjusted to equal (a) the number of Advantage
Common Stock subject to such option multiplied by (b) 0.87 (rounded down to the
nearest whole share), and the exercise price per share was adjusted to equal (x)
the exercise price of the shares of Advantage Common Stock that were purchasable
pursuant to such option divided by 0.87 (rounded to the nearest whole cent).
The Merger was completed on January 19, 2006.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information
Documents containing the information required by Part I of this
Registration Statement will be sent or given to participants in the Advantage
Stock Option Plans in accordance with Rule 428(b)(1). In accordance with Rule
424 and in reliance on Rule 428, such documents are not filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements. The Company will maintain a file of such documents for a
period of five years after the date on which such documents are last used as
part of the prospectus used to offer or sell shares of the Company Common Stock
pursuant to the Stock Option Plans. Upon request, the Company will furnish the
Commission or its staff a copy of any or all such documents included in this
file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission under the Securities Exchange Act of 1934 are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2004.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2005, June 30, 2005 and September 30, 2005.
(c) The Company's Current Reports on Form 8-K filed on January 25,
2005, January 25, 2005, March 17, 2005, April 14, 2005, May 18, 2005, June 17,
2005, July 21, 2005, August 12, 2005, August 26, 2005, October 18, 2005,
December 9, 2005, December 20, 2005, January 20, 2006 and January 25, 2006.
(d) The description of the Company Common Stock set forth in its
Registration Statement on Form 8-A filed with the Commission on June 28, 1996.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
of the shares of common stock offered have been sold or which deregisters all
such shares then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
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 such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 14A:3-5 of the New Jersey Business Corporation Act describes
those circumstances under which directors, officers, employees and agents may be
insured or indemnified against liability which they may incur in their
capacities as such.
Article VI of the Bylaws of the Company, requires indemnification of
directors, officers, employees or agents of the Company to the full extent
permissible under New Jersey law.
The registrant believes that these provisions assist the registrant in,
among other things, attracting and retaining qualified persons to serve the
registrant and its subsidiary. However, a result of such provisions could be to
increase the expenses of the registrant and effectively reduce the ability of
stockholders to sue on behalf of the registrant because certain suits could be
barred or amounts that might otherwise be obtained on behalf of the registrant
could be required to be repaid by the registrant to an indemnified party.
Under a directors' and officers' liability insurance policy, directors
and officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act of 1933.
The Company may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee, or agent of the Company or is or
was serving at the request of the Company as a director, officer, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against the person and incurred by the
person in any such capacity or arising out of his status as such, whether or not
the Company would have the power to indemnify the person against such liability
under the provisions of the Articles of Incorporation or the Bylaws.
Additionally, the Company has in force two directors and officers
liability policies for claims directly against directors and officers and for
claims where the Company is required to indemnify directors and officers. The
first policy is underwritten by Fidelity and Deposit Company of Maryland with a
$15.0 million aggregate limit of liability and an aggregate deductible of
$150,000 per loss. The second policy is underwritten by Gulf Insurance Company
with a $5.0 million aggregate limit of liability in excess of the first $15
million, with no additional deductible.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 ("1933 Act") may be permitted to directors, officers, or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 1933 Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
For a list of all exhibits filed or included as part of this
Registration Statement, see "Index to Exhibits" at the end of this Registration
Statement.
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act"); (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act, 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; and
(3) 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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report on Form 10-K pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
that is incorporated by reference in the registration statement 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 6 above 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 Securities 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Vineland, State of New Jersey, on February 3, 2006.
SUN BANCORP, INC.
By: /s/Dan A. Chila
----------------------------
Dan A. Chila
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities on February 3, 2006.
/s/Dan A. Chila, Power of Attorney /s/Dan A. Chila, Power of Attorney
- ---------------------------------- ----------------------------------
Bernard A. Brown Thomas A. Bracken
Chairman President, Chief Executive Officer and
Director
/s/Dan A. Chila, Power of Attorney /s/Dan A. Chila, Power of Attorney
- ---------------------------------- ----------------------------------
Ike Brown Sidney R. Brown
Director Vice Chairman, Secretary and Treasurer
/s/Dan A. Chila, Power of Attorney /s/Dan A. Chila, Power of Attorney
- ---------------------------------- ----------------------------------
Jeffrey S. Brown Peter Galetto, Jr.
Director Director
/s/Dan A. Chila, Power of Attorney /s/Dan A. Chila, Power of Attorney
- ---------------------------------- ----------------------------------
Douglas J. Heun Charles P. Kaempffer
Director Director
/s/Dan A. Chila, Power of Attorney /s/Dan A. Chila, Power of Attorney
- ---------------------------------- ----------------------------------
Anne E. Koons Eli Kramer
Director Director
/s/Dan A. Chila, Power of Attorney /s/Dan A. Chila, Power of Attorney
- ---------------------------------- ----------------------------------
Alfonse M. Mattia Audrey S. Oswell
Director Director
/s/Dan A. Chila, Power of Attorney /s/Dan A. Chila, Power of Attorney
- ---------------------- -------------------------------
George A. Pruitt Anthony Russo, III
Director Director
/s/Dan A. Chila, Power of Attorney /s/Dan A. Chila, Power of Attorney
- ---------------------------------- ----------------------------------
Edward H. Salmon Howard M. Schoor
Director Director
- ----------------------------------
John A. Fallone
Director
/s/Dan A. Chila
- ----------------------------------
Dan A. Chila
Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
- ----------------------
* Signed pursuant to power of attorney.
EXHIBIT INDEX
The following exhibits are filed as part of this registration
statement:
2 Agreement and Plan of Merger by and among Sun Bancorp, Inc., Sun
National Bank and Advantage Bank (included as Exhibit A to the proxy
statement/prospectus filed as part of this registration statement).**
3(a) Amended and Restated Certificate of Incorporation of Sun Bancorp, Inc.*
3(b) Amended and Restated Bylaws of Sun Bancorp, Inc. *
5 Opinion of Malizia Spidi &Fisch, PC as to the legality of the
securities being registered **
8 Tax Opinion of Malizia Spidi &Fisch, PC **
23.1 Consent of Deloitte &Touche LLP (with respect to Sun Bancorp, Inc.)
23.2 Consent of Sandler O'Neill &Partners, L.P.**
23.3 Consent of Malizia Spidi &Fisch, PC (included in Exhibits 5 and 8)**
24 Powers of Attorney (reference is made to the signature page)**
99(a) Opinion of Sandler O'Neill &Partners, L.P. (included as Exhibit B to
the proxy statement/prospectus filed as part of this registration
statement)**
- -----------------------
* Incorporated by reference to Sun Bancorp's Registration Statement
on Form S-3 (Registration No. 333-109636).
** Previously filed.