As filed with the Securities and Exchange Commission on April 26, 2005
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE BANCORP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 23-3016517
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
405 Silverside Road, Wilmington, DE 19809
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(Address of Principal Executive Offices) (Zip Code)
THE BANCORP BANK 2003 STOCK OPTION PLAN
STOCK OPTION AGREEMENTS OF THE BANCORP BANK
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(Full title of the plan)
Betsy Z. Cohen
Chief Executive Officer
The Bancorp, Inc.
405 Silverside Road
Wilmington, DE 19809
____________________________
(Name and address of agent for service)
(302) 385-5000
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(Telephone number, including area code, of agent for service)
Copy to:
J. Baur Whittlesey, Esquire
Ledgewood
1521 Locust Street - Eighth Floor
Philadelphia, PA 19102
(215) 731-9450
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE
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Common Stock, par value $1.00
per share 576,150 $13.89 $8,002,723.50 $941.92
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended, this registration statement also shall be deemed to cover an
indeterminate number of additional shares of common stock issuable in the
event the number of outstanding shares of the Company is increased by stock
split, reclassification, stock dividend or the like.
(2) Estimated solely for purposes of determining the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 based upon the
average of the high and low sales prices of the registrant's common stock
as reported on the Nasdaq National Market on April 21, 2005.
EXPLANATORY NOTE
Pursuant to the Agreement and Plan of Merger dated as of July 8, 2004 between
The Bancorp Bank and the registrant, a reorganization occurred whereby The
Bancorp Bank became a wholly-owned subsidiary of the registrant. Pursuant to
this Agreement and Plan of Merger, options to acquire 501,000 shares of The
Bancorp Bank's common stock were converted into options to acquire 576,150
shares of the registrant's common stock. These options had been issued pursuant
to The Bancorp Bank's 2003 Stock Option Plan. This registration statement
registers 576,150 shares of the registrant's common stock issuable pursuant to
these options.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with the
Explanatory Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with the
Explanatory Note to Part I of Form S-8.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the registrant filed with the SEC are
incorporated by reference in this registration statement:
o Annual Report on Form 10-K for the fiscal year ended December 31,
2004 filed on March 31, 2005.
o Current Report on Form 8-K filed on January 6, 2005.
o Current Report on Form 8-K/A filed on March 9, 2005.
o Current Report on Form 8-K filed on April 22, 2005.
o The description of registrant's common stock contained in the
Registration Statement on Form 8-A filed on November 10, 2004.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment to this registration statement which
indicates that all securities offered pursuant to this registration statement
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the provisions of Section 145 of the Delaware General Corporation
Law, the registrant is required to indemnify any present or former officer or
director against expenses arising out of legal proceedings in which the director
or officer becomes involved by reason of being a director or officer if the
director or officer is successful in the defense of such proceedings. Section
145 also provides that the registrant may indemnify a director or officer in
connection with a proceeding in which he is not successful in defending if it is
determined that he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the registrant or, in the case of a
criminal action, if it is determined that he had no reasonable cause to believe
his conduct was unlawful. Liabilities for which a director or officer may be
indemnified include amounts paid in satisfaction of settlements, judgments,
fines and other expenses (including attorneys' fees incurred in connection with
such proceedings).
The registrant's Certificate of Incorporation provides for
indemnification of directors and officers of the registrant to the full extent
permitted by applicable law. Under the provisions of the registrant's Bylaws,
the registrant is required to indemnify officers or directors to the same extent
as under the current provisions of Section 145 of the Delaware General
Corporation Law.
The foregoing standards also apply with respect to the indemnification
of expenses incurred in a stockholder derivative suit. However, a director or
officer may only be indemnified for settlement amounts or judgments incurred in
a derivative suit to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
In accordance with the Delaware General Corporation Law, the
registrant's Certificate of Incorporation contains a provision to limit the
personal liability of the directors of the registrant for violations of their
fiduciary duty. This provision eliminates each director's liability to the
registrant or its stockholders for monetary damages except (i) for breach of the
director's duty of loyalty to the registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions or (iv) for any transaction
from which a director derived an improper personal benefit. The effect of this
provision is to eliminate the personal liability of directors for monetary
damages for actions involving a breach of their fiduciary duty.
The registrant maintains directors' and officers' liability insurance
against any actual or alleged error, misstatement, misleading statement, act,
omission, neglect or breach of duty by any director or officer of itself or any
direct or indirect subsidiary, excluding certain matters including fraudulent,
dishonest or criminal acts or self-dealing.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits furnished as part of this registration statement on Form
S-8 are identified in the Exhibit Index immediately following the signature
pages of this registration statement. Such Exhibit Index is incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
Undertakings required by Item 512(a) of Regulation S-K
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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the SEC
by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, (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.
(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.
Undertakings required by Item 512(b) of Regulation S-K
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of 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 the initial bona fide offering
thereof.
Undertakings required by Item 512(h) of Regulation S-K
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted for 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 SEC 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. 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 Wilmington, State of Delaware, on April 26, 2005.
THE BANCORP, INC.
By: /s/ Betsy Z. Cohen
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Betsy Z. Cohen
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Betsy Z. Cohen, Frank M. Mastrangelo and
Martin F. Egan, or any of them, as his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him or her
and in his or her name, place, and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the SEC, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or of his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ Betsy Z. Cohen Date: April 26, 2005
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BETSY Z. COHEN, Chief Executive Officer and Director
(principal executive officer)
/s/ Frank M. Mastrangelo Date: April 26, 2005
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FRANK M. MASTRANGELO, President, Chief Operating
Officer and Director
/s/ Martin F. Egan Date: April 26, 2005
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MARTIN F. EGAN, Senior Vice President, Chief Financial
Officer and Secretary (principal financial and accounting
officer)
/s/ D. Gideon Cohen Date: April 26, 2005
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D. GIDEON COHEN, Chairman of the Board of Directors,
Chairman of the Executive Committee
/s/ Walter T. Beach Date: April 26, 2005
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WALTER T. BEACH, Director
/s/ Matthew Cohn Date: April 26, 2005
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MATTHEW COHN, Director
/s/ Linda Schaeffer Date: April 26, 2005
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LINDA SCHAEFFER, Director
/s/ William H. Lamb Date: April 26, 2005
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WILLIAM H. LAMB, Director
/s/ James J. McEntee III Date: April 26, 2005
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JAMES J. MC ENTEE III, Director
/s/ Joan Specter Date: April 26, 2005
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JOAN SPECTER, Director
/s/ Steven Stein Date: April 26, 2005
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STEVEN STEIN, Director
/s/ Leon A. Huff Date: April 26, 2005
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LEON A. HUFF, Director
/s/ Michael J. Bradley Date: April 26, 2005
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MICHAEL J. BRADLEY, Director
EXHIBIT INDEX
The following exhibits are filed herewith:
EXHIBIT DOCUMENT
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4.1(1) Certificate of Incorporation of Registrant
4.2(1) Bylaws of Registrant
4.3(2) Specimen copy of Common Stock Certificate
4.4 2003 Stock Option Plan of The Bancorp Bank (the "Bank Plan")
4.5 Form of Grant of Non-Qualified Stock Options under the Bank Plan
4.6 Form of Grant of Incentive Stock Options under the Bank Plan
4.7(1) Form of Agreement and Plan of Merger between registrant and The Bancorp Bank
5.1 Opinion of Ledgewood, a professional corporation, as to
the legality of the securities to be offered
23.1 Consent of Grant Thornton LLP
23.2 Consent of Ledgewood, a professional corporation
(included as part of Exhibit 5.1)
24.1 Power of Attorney (included as part of signature page)
(1) Filed previously as an exhibit to registrant's Registration
Statement on Form S-4 dated July 15, 2004 and by this
reference incorporated herein.
(2) Filed previously as an exhibit to registrant's Registration
Statement on Form S-4/A dated September 28, 2004 and by this
reference incorporated herein.