Registration No.
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VSB BANCORP, INC.
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(Exact name of registrant as specified in its charter)
New York 11-3680128
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(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3155 Amboy Road
Staten Island, New York 10306
(718) 979-1100
(Address of principal executive offices)
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VSB Bancorp, Inc. 2004 Directors Stock Option Plan
(Full title of plan)
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Raffaele M. Branca, Executive Vice President
VSB Bancorp, Inc.
3155 Amboy Road
Staten Island, New York 10306
(Name and address of agent for service)
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This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
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Proposed maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of Securities to be registered (1) registered (2) per share offering price registration fee
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Common Stock, $.0001 par value 55,000 $22.45454 (3) $1,235,000 $145.36
to be issued upon the exercise of options
granted under the 2004 Directors
Stock Option Plan.
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(1) The securities to be registered include options and rights to acquire
Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. Represents the aggregate weighted average exercise price
of options that are issued and outstanding plus the closing price of the
shares within 5 days prior to the filing date multiplied by the number of
additional options permitted that have not yet been issued.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
VSB Bancorp, Inc. (the "Company") hereby incorporates by reference in this
registration statement the following documents:
(a) The Company's Annual Report on Form 10-KSB (File No. 0-50237) (the "Annual
Report"), filed pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), for the year ended December 31, 2004.
(b) The Company's Quarterly Report on Form 10-QSB (File No. 0-50237) filed
pursuant the Exchange Act for the quarterly period ended March 31, 2005.
(c) The description of the Company's common stock is contained in the Company's
Registration Statement on Form 10-SB (File No. 0-50237) as amended (the
"Registration Statement"), filed pursuant to the Exchange Act, relating to the
registration of the Company's Common Stock under Section 12 of the Act.
All documents subsequently filed by the Company pursuant to Sections 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 securities
offered hereby have been sold or which deregisters all securities 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.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
The certificate of incorporation of the Company provides, as permitted by
Section 402(b) of the New York Business Corporation Law, that a director will
not be personally liable to the Company or its shareholders for damages for any
breach of duty in his or her capacity as a director. The limit on a director's
liability does not apply:
(a) if a judgment or other final adjudication adverse to the director
establishes that the director's acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law or that
the director personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled or
(b) if the director's acts violated Section 719 of the New York Business
Corporation Law regarding declaring unlawful dividends, approving
unlawful stock repurchases, making unlawful loans to directors or
making improper distributions upon liquidation.
The bylaws of the Company provide:
"ARTICLE VII. INDEMNIFICATION OF DIRECTORS, OFFICERS & OTHERS.
(a) The Corporation shall indemnify and advance the expenses of any
Director, Officer or employee to the full extent permitted by New York law as
the same now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than such law permitted the Corporation
to provide prior to such amendment).
(b) The indemnification and advancement of expenses granted pursuant to
this Article VII shall not be exclusive or limiting of any other rights to which
any person seeking indemnification or advancement of expenses may be entitled
when authorized by (i) a Resolution or Stockholders, (ii) a Resolution of
Directors, or (iii) an agreement providing for such indemnification; provided
that no indemnification may be made to or on behalf of any such person if a
judgment or other final adjudication adverse to such person establishes that his
or her acts were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action so adjudicated,
or that he or she personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled.
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(c) The Corporation must maintain insurance, at its expense, to the extent
that said insurance is available and not cost prohibitive as determined by the
Board in its sole discretion to protect itself and any Director, Officer, or
employee of the Corporation against any expense, liability or loss.
(d) No amendment, modification or rescission of these By-laws shall be
effective to limit any person's right to indemnification with respect to any
alleged cause of action that accrues or other incident or matter that occurs
prior to the date on which such modification, amendment or rescission is
adopted."
In addition, Sections 722 through 726 of the New York Business Corporations Law
provide for the indemnification of Directors and Officers. The following is the
text of those provisions.
ss. 722. Authorization for indemnification of directors and officers.
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(a) A corporation may indemnify any person made, or threatened to be made,
a party to an action or proceeding (other than one by or in the right
of the corporation to procure a judgment in its favor), whether civil
or criminal, including an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the corporation served in
any capacity at the request of the corporation, by reason of the fact
that he, his testator or intestate, was a director or officer of the
corporation, or served such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any
capacity, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees actually and necessarily
incurred as a result of such action or proceeding, or any appeal
therein, if such director or officer acted, in good faith, for a
purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise, not opposed to, the
best interests of the corporation and, in criminal actions or
proceedings, in addition, had no reasonable cause to believe that his
conduct was unlawful.
(b) The termination of any such civil or criminal action or proceeding by
judgment, settlement, conviction or upon a plea of nolo contendere, or
its equivalent, shall not in itself create a presumption that any such
director or officer did not act, in good faith, for a purpose which he
reasonably believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise, not opposed to, the best interests of the
corporation or that he had reasonable cause to believe that his conduct
was unlawful.
(c) A corporation may indemnify any person made, or threatened to be made,
a party to an action by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he, his testator or
intestate, is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer
of any other corporation of any type or kind, domestic or foreign, of
any partnership, joint venture, trust, employee benefit plan or other
enterprise, against amounts paid in settlement and reasonable expenses,
including attorneys' fees, actually and necessarily incurred by him in
connection with the defense or settlement of such action, or in
connection with an appeal therein, if such director or officer acted,
in good faith, for a purpose which he reasonably believed to be in, or,
in the case of service for any other corporation or any partnership,
joint venture, trust, employee benefit plan or other enterprise, not
opposed to, the best interests of the corporation, except that no
indemnification under this paragraph shall be made in respect of (1) a
threatened action, or a pending action which is settled or otherwise
disposed of, or (2) any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation, unless and
only to the extent that the court in which the action was brought, or,
if no action was brought, any court of competent jurisdiction,
determines upon application that, in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity for
such portion of the settlement amount and expenses as the court deems
proper.
(d) For the purpose of this section, a corporation shall be deemed to have
requested a person to serve an employee benefit plan where the
performance by such person of his duties to the corporation also
imposes duties on, or otherwise involves services by, such person to
the plan or participants or beneficiaries of the plan; excise taxes
assessed on a person with respect to an employee benefit plan pursuant
to applicable law shall be considered fines; and action taken or
omitted by a person with respect to an employee benefit plan in the
performance of such person's duties for a purpose reasonably believed
by such person to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is
not opposed to the best interests of the corporation.
ss. 723. Payment of indemnification other than by court award.
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(a) A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character
described in section 722 shall be entitled to indemnification as
authorized in such section.
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(b) Except as provided in paragraph (a), any indemnification under section
722 or otherwise permitted by section 721, unless ordered by a court
under section 724 (Indemnification of directors and officers by a
court), shall be made by the corporation, only if authorized in the
specific case:
(1) By the board acting by a quorum consisting of directors who are not
parties to such action or proceeding upon a finding that the director
or officer has met the standard of conduct set forth in section 722 or
established pursuant to section 721, as the case may be, or,
(2) If a quorum under subparagraph (1) is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs;
(A) By the board upon the opinion in writing of independent
legal counsel that indemnification is proper in the
circumstances because the applicable standard of conduct set
forth in such sections has been met by such director or
officer, or
(B) By the shareholders upon a finding that the director or
officer has met the applicable standard of conduct set forth
in such sections.
(c) Expenses incurred in defending a civil or criminal action or proceeding
may be paid by the corporation in advance of the final disposition of
such action or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount as, and to the
extent, required by paragraph (a) of section 725.
ss. 724. Indemnification of directors and officers by a court.
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(a) Notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary resolution of the board or of
the shareholders in the specific case under section 723 (Payment of
indemnification other than by court award), indemnification shall be
awarded by a court to the extent authorized under section 722
(Authorization for indemnification of directors and officers), and
paragraph (a) of section 723. Application therefor may be made, in
every case, either:
(1) In the civil action or proceeding in which the expenses were
incurred or other amounts were paid, or
(2) To the supreme court in a separate proceeding, in which case the
application shall set forth the disposition of any previous application
made to any court for the same or similar relief and also reasonable
cause for the failure to make application for such relief in the action
or proceeding in which the expenses were incurred or other amounts were
paid.
(b) The application shall be made in such manner and form as may be
required by the applicable rules of court or, in the absence thereof,
by direction of a court to which it is made. Such application shall be
upon notice to the corporation. The court may also direct that notice
be given at the expense of the corporation to the shareholders and such
other persons as it may designate in such manner as it may require.
(c) Where indemnification is sought by judicial action, the court may allow
a person such reasonable expenses, including attorneys' fees, during
the pendency of the litigation as are necessary in connection with his
defense therein, if the court shall find that the defendant has by his
pleadings or during the course of the litigation raised genuine issues
of fact or law.
ss. 725. Other provisions affecting indemnification of directors and officers.
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(a) All expenses incurred in defending a civil or criminal action or
proceeding which are advanced by the corporation under paragraph (c) of
section 723 (Payment of indemnification other than by court award) or
allowed by a court under paragraph (c) of section 724 (Indemnification
of directors and officers by a court) shall be repaid in case the
person receiving such advancement or allowance is ultimately found,
under the procedure set forth in this article, not to be entitled to
indemnification or, where indemnification is granted, to the extent the
expenses so advanced by the corporation or allowed by the court exceed
the indemnification to which he is entitled.
(b) No indemnification, advancement or allowance shall be made under this
article in any circumstance where it appears:
(1) That the indemnification would be inconsistent with the law of the
jurisdiction of incorporation of a foreign corporation which prohibits
or otherwise limits such indemnification;
(2) That the indemnification would be inconsistent with a provision of
the certificate of incorporation, a by-law, a resolution of the board
or of the shareholders, an agreement or other proper corporate action,
in effect at the time of the accrual of the alleged cause of action
asserted in the threatened or pending action or proceeding in which the
expenses were incurred or other amounts were paid, which prohibits or
otherwise limits indemnification; or
(3) If there has been a settlement approved by the court, that the
indemnification would be inconsistent with any condition with respect
to indemnification expressly imposed by the court in approving the
settlement.
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(c) If any expenses or other amounts are paid by way of indemnification,
otherwise than by court order or action by the shareholders, the
corporation shall, not later than the next annual meeting of
shareholders unless such meeting is held within three months from the
date of such payment, and, in any event, within fifteen months from the
date of such payment, mail to its shareholders of record at the time
entitled to vote for the election of directors a statement specifying
the persons paid, the amounts paid, and the nature and status at the
time of such payment of the litigation or threatened litigation.
(d) If any action with respect to indemnification of directors and officers
is taken by way of amendment of the by-laws, resolution of directors,
or by agreement, then the corporation shall, not later than the next
annual meeting of shareholders, unless such meeting is held within
three months from the date of such action, and, in any event, within
fifteen months from the date of such action, mail to its shareholders
of record at the time entitled to vote for the election of directors a
statement specifying the action taken.
(e) Any notification required to be made pursuant to the foregoing
paragraph (c) or (d) of this section by any domestic mutual insurer
shall be satisfied by compliance with the corresponding provisions of
section one thousand two hundred sixteen of the insurance law.
(f) The provisions of this article relating to indemnification of directors
and officers and insurance therefor shall apply to domestic
corporations and foreign corporations doing business in this state,
except as provided in section 1320 (Exemption from certain provisions).
ss. 726. Insurance for indemnification of directors and officers.
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(a) Subject to paragraph (b), a corporation shall have power to purchase
and maintain insurance:
(1) To indemnify the corporation for any obligation which it incurs as
a result of the indemnification of directors and officers under the
provisions of this article, and
(2) To indemnify directors and officers in instances in which they may
be indemnified by the corporation under the provisions of this article,
and
(3) To indemnify directors and officers in instances in which they may
not otherwise be indemnified by the corporation under the provisions of
this article provided the contract of insurance covering such directors
and officers provides, in a manner acceptable to the superintendent of
insurance, for a retention amount and for co-insurance.
(b) No insurance under paragraph (a) may provide for any payment, other
than cost of defense, to or on behalf of any director or officer:
(1) if a judgment or other final adjudication adverse to the insured
director or officer establishes that his acts of active and deliberate
dishonesty were material to the cause of action so adjudicated, or that
he personally gained in fact a financial profit or other advantage to
which he was not legally entitled, or
(2) in relation to any risk the insurance of which is prohibited under
the insurance law of this state.
(c) Insurance under any or all subparagraphs of paragraph (a) may be
included in a single contract or supplement thereto. Retrospective
rated contracts are prohibited.
(d) The corporation shall, within the time and to the persons provided in
paragraph (c) of section 725 (Other provisions affecting
indemnification of directors or officers), mail a statement in respect
of any insurance it has purchased or renewed under this section,
specifying the insurance carrier, date of the contract, cost of the
insurance, corporate positions insured, and a statement explaining all
sums, not previously reported in a statement to shareholders, paid
under any indemnification insurance contract.
(e) This section is the public policy of this state to spread the risk of
corporate management, notwithstanding any other general or special law
of this state or of any other jurisdiction including the federal
government."
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index below.
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Item 9. Undertakings
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;
(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 paragraphs (1)(i) and (l)(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 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.
(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.
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 Section 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 be the initial bona fide offering thereof.
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 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 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.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 New York, State of New York on May 23, 2005.
VSB Bancorp, Inc.
By: /s/ RAFFAELE M. BRANCA
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Raffaele M. Branca,
Executive Vice President
SIGNATURES AND POWER OF ATTORNEY
The officers and directors VSB Bancorp, Inc. whose signatures appear below,
hereby constitute and appoint Raffaele Branca and Merton Corn, and each of them,
their true and lawful attorneys and agents, with full power of substitution,
each with power to act alone, to sign and execute on behalf of the undersigned
any amendment or amendments to this registration statement on Form S-8, and each
of the undersigned does hereby ratify and confirm all that each of said attorney
and agent, or their or his substitutes, shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ MERTON CORN President, principal May 23, 2005
----------------------------- executive officer and Director
Merton Corn
/s/ RAFFAELE M. BRANCA Executive Vice President, May 23, 2005
----------------------------- principal financial officer,
Raffaele M. Branca principal accounting officer
and Director
/s/ JOSEPH LIBASSI Director and Chairman of the May 23, 2005
----------------------------- Board
Joseph Libassi
/s/ JOAN NERLINO CADDELL Director May 23, 2005
-----------------------------
Joan Nerlino Caddell
/s/ ROBERT S. CUTRONA, SR. Director May 23, 2005
-----------------------------
Robert S. Cutrona, Sr.
/s/ CHAIM FARKAS Director May 23, 2005
-----------------------------
Chaim Farkas
/s/ ALFRED C. JOHNSEN Director May 23, 2005
-----------------------------
Alfred C. Johnsen
/s/ CARLOS PEREZ MD Director May 23, 2005
-----------------------------
Carlos Perez MD
/s/ BRUNO SAVO Director May 23, 2005
-----------------------------
Bruno Savo
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EXHIBIT INDEX
5.1 Opinion re legality
23.1 Consent of Crowe Chizek and Company LLC
23.2 Consent of Deloitte & Touche, LLP
24 Power of Attorney (included in signature pages to this registration
statement)
99.1 VSB Bancorp, Inc. 2004 Directors Stock Option Plan, previously filed as
Exhibit A to the Definitive Proxy Statement of the Registrant as filed
with the Commission on March 24, 2004.
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