Form S-8 FLUSHING FINANCIAL CORP

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

FLUSHING FINANCIAL CORPORATION

(Exact Name of Registrant as Specified in Its Charter)

220 RXR Plaza

Uniondale, New York 11556

(Address of Principal Executive Offices)

2014 Omnibus Incentive Plan

Flushing Bank 401(k) Savings Plan

(Full Title of the Plan)

John R. Buran

President and Chief Executive Officer

Flushing Financial Corporation

220 RXR Plaza

Uniondale, New York 11556

(718) 512-2704

(Name, Address, and Telephone Number of Agent For Service)

Copies of all communications to:

Gary J. Simon, Esq.

Hughes Hubbard & Reed LLP

One Battery Park Plaza

New York, NY 10004

212-837-6000

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b‑2 of the Exchange Act.

 

CALCULATION OF REGISTRATION FEE

Title of Securities To be Registered	Amount to be Registered (1)	Proposed Maximum Offering Price Per Share (2)	Proposed Maximum Aggregate Offering Price (2)	Amount of Registration Fee
2014 Omnibus Incentive Plan Common Stock, par value $0.01 per share	1,100,000 shares	$22.36	$24,596,000	$2,684
Flushing Bank 401(k) Savings Plan Common Stock, par value $0.01 per share	1,000,000 shares	$22.36	$22,360,000	$2,440
Aggregate amount to be registered	2,100,000 shares			$5,124

 

 

 

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

 

The following documents filed by Flushing Financial Corporation (the “Company”) under the Securities Exchange Act of 1934 (the “Exchange Act”) are incorporated herein by reference:

 

 

 

 

 

 

All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters securities 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 the filing of such documents.

 

Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in a subsequently filed document which is also incorporated by reference herein modifies or supersedes such statement.

 

 

Not applicable.

 

 

Not applicable.

 

 

Section 145 of the Delaware General Corporation Law (“DGCL”) empowers a Delaware corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Similar indemnification is authorized for such person against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of any threatened, pending or completed action or suit by or in the right of

the corporation if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and provided further that (unless a court of competent jurisdiction otherwise provides) he shall not have been adjudged liable to the corporation. Any such indemnification (unless ordered by a court) may be made by the corporation only as authorized in each specific case by the corporation upon a determination that indemnification of the present or former director, officer, employee or agent is proper because such person has met the applicable standard of conduct, which indemnification shall be made in the case of a director or officer at the time of the determination by the shareholders, a majority vote of disinterested directors, a committee of disinterested directors or by independent legal counsel in a written opinion, if there are no such directors or if such directors so direct.

Section 145 of the DGCL also authorizes a corporation to pay the expenses (including attorneys’ fees) incurred by an officer or director in defending any such proceedings in advance of their final disposition.  Such advance payment of expenses, however, may be made only upon delivery to the corporation by the indemnified party of an undertaking to repay all amounts so advanced if it shall ultimately be determined that the person receiving such payments is not entitled to be indemnified pursuant to Section 145 of the DGCL.  The DGCL also provides that its provisions regarding indemnification and advancement of expenses are not exclusive of other rights which may be provided by bylaw, agreement, or otherwise.

 

Section 145 of the DGCL further authorizes a corporation to purchase and maintain insurance, at its expense, on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against or incurred by such person in any such capacity, or arising out of such status, whether or not the corporation would otherwise have the power to indemnify such person against such liability under Section 145 of the DGCL.

 

Article TENTH of the Company’s Certificate of Incorporation limits the personal liability of directors in specified circumstances and sets forth circumstances under which directors, officers, employees and agents of the Company may be indemnified against liability which they incur in their capacities as such.  Article TENTH provides as follows:

 

TENTH.

 

(A) No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation 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, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended after the date of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation law, as so amended.

 

(B) The Corporation shall indemnify to the fullest extent permitted by the laws of the State of Delaware as from time to time in effect any person who was or is a party or is threatened to be made a party to, or otherwise requires representation by counsel in connection with, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation (a “Proceeding”), by reason of the fact that such person is or was a director or officer of the Corporation, or, while serving as a director or officer of the Corporation, is or was serving, in any capacity, at the request of the Corporation, any other corporation, partnership, joint venture, trust, association or other enterprise, including service with respect to an employee benefit plan, or by reason of any action alleged to have been taken or omitted in such capacity, against judgments, fines, penalties, amounts paid in settlement, and expenses (including attorneys’ fees and expenses, expenses and cost of investigations, and expenses of enforcement of such person’s rights under this Article TENTH) incurred by such person in connection with such Proceeding; provided, however, that no

such indemnification shall be required for amounts paid in any settlement or other nonadjudicated disposition of any Proceeding unless the Board of Directors of the Corporation has given its prior consent to such settlement or disposition.

(C) The right to indemnification conferred by this Article TENTH shall also include the right of such persons to be paid in advance by the Corporation for their expenses to the full extent permitted by the laws of the State of Delaware as from time to time in effect. The right to indemnification conferred on such persons by this Article TENTH shall be a contract right and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.

 

(D) The Corporation may, to the extent authorized from time to time by the Board of Directors, indemnify to the fullest extent permitted by the laws of the State of Delaware as from time to time in effect any person who was or is party or is threatened to be made a party to, or otherwise requires representation by counsel in connection with, any Proceeding, by reason of the fact that such person is or was an employee (other than an officer) or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, or by reason of any action alleged to have been taken or omitted in such capacity.

 

The rights and authority conferred in this Article TENTH shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation or the By-Laws of the Corporation, agreement, vote of stockholders or disinterested directors or otherwise.

 

Notwithstanding anything to the contrary contained in this Article TENTH, the Corporation shall not indemnify any person in connection with any Proceeding initiated by such person against any other person or entity other than the Corporation or any Subsidiary unless such Proceeding was authorized by the Board of Directors of the Corporation.

 

Neither the amendment nor repeal of this Article TENTH, nor the adoption of any provision of the Certificate of Incorporation or By-Laws or of any statute inconsistent with this Article TENTH, shall eliminate or reduce the effect of this Article TENTH in respect of any acts or omissions occurring prior to such amendment, repeal or adoption of an inconsistent provision.

 

The Company has entered into Indemnity Agreements with each of its directors and executive officers, which provide for mandatory indemnification for each such person to the full extent permitted by law against judgments, fines, amounts paid in settlement in connection with any claim arising out of such person’s service to the Company unless he was adjudicated to have acted in bad faith, deliberate dishonesty or for personal gain.  The agreements provide for advancement of expenses and specify procedures for determining entitlement to indemnification in a particular case.

 

The Company maintains insurance coverage under which the Company’s officers and directors (as well as the Company) are indemnified under certain circumstances with respect to litigation and other costs and liabilities arising out of actual or alleged misconduct of such officers and directors.

 

Item 7.

Exemption from Registration Claimed

 

Not applicable.

 

Item 8.

Exhibits

 

See Exhibit Index.

 

 

 

 

 

 

Provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in 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.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Company 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 Uniondale, New York, on June 17, 2021.

 

Pursuant to the requirements of the Securities Act of 1933, the Flushing Bank 401(k) Savings Plan administrator has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Uniondale, New York, on June 17, 2021.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated.  In addition, we the undersigned directors and officers of the Company hereby severally constitute and appoint John R. Buran, Susan K. Cullen and Maria A. Grasso, or any one of them acting alone, as our true and lawful attorneys and agents, to do any and all things in our names in the capacities indicated below which he or she may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, including specifically, but not limited to, power and authority to sign for us in our names in the capacities indicated below the registration statement and any and all amendments (including post-effective amendments) thereto; and we hereby approve, ratify and confirm all that he or she shall do or cause to be done by virtue thereof.

 

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

Flushing Financial Corporation

Uniondale, New York

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Flushing Financial Corporation of our reports dated March 16, 2021, relating to the consolidated financial statements of Flushing Financial Corporation and the effectiveness of Flushing Financial Corporation’s internal control over financial reporting, appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2020.

/s/ BDO USA, LLP

BDO USA, LLP

New York, New York

June 17, 2021

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

Flushing Financial Corporation

Uniondale, New York

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Flushing Financial Corporation of our report dated June 23, 2020, with respect to the financial statements and supplemental schedule of Flushing Bank 401(k) Savings Plan, which  report appears in the December 31, 2019 annual report on Form 11-K of Flushing Bank 401(k) Savings Plan.

/s/ BDO USA, LLP

BDO USA, LLP

New York, New York

June 17, 2021

Exhibit 99.3
Execution Version

FOURTH AMENDMENT

TO THE

FLUSHING BANK 401(k) SAVINGS PLAN

January 1, 2016 Restatement

The Flushing Bank 401(k) Savings Plan, originally effective as of September 1, 1987, as presently maintained under an amendment and restatement made effective as of January 1, 2016, is hereby amended as follows, effective for Profit Sharing and Retirement Account Contributions made for Plan Years beginning on or after January 1, 2020:

 

 

“An "Eligible Employee" means: (1) for purposes of 401(k) Contributions and Rollover Contributions, any Covered Employee who has met the eligibility requirements for making such contributions under Article III; and (2) for purposes of Matching and Special Annual Company Contributions, any Covered Employee who has met the eligibility requirements for receiving allocations of such contributions under Article III; and (3) for purposes of Profit Sharing and Retirement Account Contributions made for Plan Years beginning on or before January 1, 2019, any Covered Employee who has met the eligibility requirements for receiving allocations of such contributions under Article III; and (4) for purposes of Profit Sharing and Retirement Account Contributions made for Plan Years beginning on or after January 1, 2020, any Grandfathered Covered Employee who has met the eligibility requirements for receiving allocations of such contributions under Article III.”

 

 

“A "Grandfathered Covered Employee" means, for purposes of Profit Sharing and Retirement Account Contributions made for Plan Years beginning on or after January 1, 2020, a Covered Employee who either (1) was a Covered Employee on December 31, 2019 and has continued to be a Covered Employee at all times since December 31, 2019; or (2) had an outstanding offer letter from an Employer as of December 31, 2019, was hired by an Employer as a Covered Employee during January 2020, and has continued to be a Covered Employee at all times since such January 2020 date of hire.  Notwithstanding any other provision of the Plan, a Grandfathered Covered Employee who, for any reason, ceases to be a Covered Employee on or after January 1, 2020 shall also cease to be a Grandfathered Covered Employee as of the date he ceases to be a Covered

 

Employee and shall not again become a Grandfathered Covered Employee even if he again becomes a Covered Employee.”

 

 

“A Covered Employee shall become an Eligible Employee eligible to receive allocations of Matching and Special Annual Company Contributions as of the Enrollment Date next following the calendar month in which the Covered Employee has both attained age 21 and completed one year of Eligibility Service.

Prior to January 1, 2020, a Covered Employee shall become an Eligible Employee eligible to receive allocations of Profit Sharing and Retirement Account Contributions made for Plan Years beginning on or before January 1, 2019 as of the Enrollment Date next following the calendar month in which the Covered Employee has both attained age 21 and completed one year of Eligibility Service.

Effective January 1, 2020, a Grandfathered Covered Employee who was eligible to receive allocations of Profit Sharing and Retirement Account Contributions under the Plan immediately prior to January 1, 2020 shall continue to be an Eligible Employee eligible to receive allocations of such contributions on January 1, 2020.  Each other Grandfathered Covered Employee shall become an Eligible Employee eligible to receive allocations of Profit Sharing and Retirement Account Contributions as of the Enrollment Date next following the calendar month in which the Grandfathered Covered Employee has both attained age 21 and completed one year of Eligibility Service.  Notwithstanding any other provision of the Plan, in no event shall anyone other than a Grandfathered Covered Employee be an Eligible Employee eligible to receive allocations of Profit Sharing and Retirement Account Contributions made for Plan Years beginning on or after January 1, 2020.”

 

 

“Notwithstanding the preceding paragraph, if, on or after January 1, 2020, an Employee is transferred directly from employment with an Employer or with a Related Employer in a capacity other than as a Covered Employee to employment as a Covered Employee, he shall become an Eligible Employee (for all purposes of the Plan other than Profit Sharing and Retirement Account Contributions) as of the date he is so transferred if prior to such transfer date he has met the eligibility requirements for Matching and Special Annual Company Contributions under Section 3.1. Otherwise, the eligibility of a person who is so transferred to participate in the Plan shall be determined in accordance with Section 3.1.

 

In no event shall anyone become an Eligible Employee eligible to receive allocations of Profit Sharing and Retirement Account Contributions as a result of such a transfer on or after January 1, 2020.”

 

 

“Notwithstanding the preceding paragraph, if a person who terminated employment with an Employer and all Related Employers is reemployed as a Covered Employee on or after January 1, 2020 and if he had met the eligibility requirements for Matching and Special Annual Company Contributions under Section 3.1 prior to his termination of employment, he shall again become an Eligible Employee (for all purposes of the Plan other than Profit Sharing and Retirement Account Contributions) on the date he is reemployed. If such person was not an Eligible Employee prior to his termination of employment, but had satisfied the requirements of Section 3.1 for Matching and Special Annual Company Contributions prior to such termination, he shall become an Eligible Employee (for all purposes of the Plan other than Profit Sharing and Retirement Account Contributions) as of the later of the date he is reemployed or the date he would have become an Eligible Employee for purposes of Matching and Special Annual Company Contributions in accordance with the provisions of Section 3.1 if he had continued employment as a Covered Employee.

 

In no event shall anyone become an Eligible Employee eligible to receive allocations of Profit Sharing and Retirement Account Contributions as a result of reemployment on or after January 1, 2020.”

 

*    *    *

EXECUTED at Uniondale, New York this 21st day of January, 2020.

FIFTH AMENDMENT

TO THE

FLUSHING BANK 401(k) SAVINGS PLAN

January 1, 2016 Restatement

The Flushing Bank 401(k) Savings Plan, originally effective as of September 1, 1987, as presently maintained under an amendment and restatement made effective as of January 1, 2016, is hereby amended as follows, contingent upon, and subject to, the closing of the transactions contemplated by the “Empire Merger Agreement” (as defined below), effective as of the “Empire Merger Date” (as defined below):

 

 

“In the case of an Empire Employee, his "vested service" shall include his Empire Service.”

 

 

“"Empire" means Empire National Bank or Empire Bancorp, Inc.

 

An "Empire Employee" means an Employee who was an employee of Empire immediately prior to the Empire Merger Date and was an Employee of an Employer on the Empire Merger Date.

 

The "Empire Merger Agreement" means the Agreement and Plan of Bank Merger, dated as of October 24, 2019, by and between Flushing Bank and Empire National Bank.

 

The "Empire Merger Date" means the day after the “Effective Time” (as defined in the Empire Merger Agreement) of the merger of Empire National Bank with and into Flushing Bank, with Flushing Bank as the surviving entity, pursuant to the Empire Merger Agreement.”

 

"Empire Service" means an Empire Employee’s service with Empire prior to the Empire Merger Date.”

 

 

“In addition, the term “Grandfathered Covered Employee” shall also include a Covered Employee who (1) was employed by Empire at all times from December

 31, 2019 through the day before the Empire Merger Date, (2) became a Covered Employee on the Empire Merger Date, and (3) has continued to be a Covered Employee at all times since the Empire Merger Date.”

 

 

“The Eligibility Service of an Empire Employee shall include his Empire Service.”

 

 

 

 

“Notwithstanding the preceding sentence, (i) an Empire Employee who, as of the Empire Merger Date, is a Covered Employee, has attained age 21, and has completed one year of Eligibility Service shall become an Eligible Employee eligible to receive allocations of Matching and Special Annual Company Contributions as of the Empire Merger Date; and (ii) any other Empire Employee shall become an Eligible Employee eligible to receive allocations of Matching and Special Annual Company Contributions as of the Enrollment Date next following the calendar month in which he is a Covered Employee, has attained age 21, and has completed one year of Eligibility Service.”

 

 

“Notwithstanding the preceding sentence, (i) an Empire Employee who, as of the Empire Merger Date, is a Grandfathered Covered Employee, has attained age 21, and has completed one year of Eligibility Service shall become an Eligible Employee eligible to receive allocations of Profit Sharing and Retirement Account Contributions as of the Empire Merger Date; and (ii) any other Empire Employee who is a Grandfathered Covered Employee shall become an Eligible Employee eligible to receive allocations of Profit Sharing and Retirement Account Contributions as of the Enrollment Date next following the calendar month in which he is a Grandfathered Covered Employee, has attained age 21, and has completed one year of Eligibility Service.”

 

8.

Section 5.5 is hereby amended in its entirety to read as follows:

“5.5          Restrictions on Rollover Contributions

Rollover Contributions to the Plan are subject to the following:

 

 

 

Notwithstanding the foregoing (or the requirement that a Rollover Contribution be made in cash), an Eligible Employee may elect to make a Rollover Contribution of a promissory note attributable to a plan loan from the Empire National Bank 401(k) Plan on such terms and conditions as the Administrator may require, provided such loan was not funded from a designated Roth contribution or after-tax employee contribution source and such rollover is a direct rollover which would otherwise satisfy the Plan’s requirements for a Rollover Contribution.  Any such promissory note shall continue to be administered in accordance with its terms.”

*    *    *

EXECUTED at Uniondale, New York this 28th day of October, 2020.

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