Registration No. 333-_________
As filed with the Securities and Exchange Commission on October 15, 2008
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Oritani Financial Corp.
(Exact Name of Registrant as Specified in its Charter)
Federal 22-3617966
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
370 Pascack Road
Township of Washington, New Jersey 07676
(Address of Principal Executive Offices)
Oritani Financial Corp. 2007 Equity Incentive Plan
(Full Title of the Plan)
Copies to:
Mr. Kevin J. Lynch Marc P. Levy, Esquire
Chairman of the Board, President and Luse Gorman Pomerenk & Schick, P.C.
Chief Executive Officer 5335 Wisconsin Ave., N.W., Suite 400
Oritani Financial Corp. Washington, DC 20015-2035
370 Pascack Road (202) 274-2000
Township of Washington, New Jersey 07676
(201) 664-5400
(Name, Address and Telephone
Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
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Common stock, par value
$0.01 per share 794,823 (2) $16.14 (6) $12,828,443 $504
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Common stock, par value
$0.01 per share 1,788,352 (3) $15.65 (5) $27,987,709 $1,100
--------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 198,703 (4) $16.14 (6) $3,207,066 $126
--------------------------------------------------------------------------------------------------------------------
TOTALS 2,781,878 $44,023,218 $1,730
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(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Oritani Financial Corp. 2007 Equity Incentive Plan (the "Stock Benefit
Plan") as a result of a stock split, stock dividend or similar adjustment
of the outstanding common stock of Oritani Financial Corp. (the "Company")
pursuant to 17 C.F.R. Section 230.416(a).
(2) Represents the number of shares of common stock awarded as restricted stock
but not vested under the Stock Benefit Plan.
(3) Represents the number of shares of common stock currently reserved for
issuance for options granted pursuant to the Stock Benefit Plan.
(4) Represents the number of shares of common stock reserved for issuance under
the Stock Benefit Plan for any future grants of stock options.
(5) Determined pursuant to 17 C.F.R. Section 230.457(h)(1).
(6) Determined pursuant to 17 C.F.R. Section 230.457(c).
---------------------
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
2
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
The documents containing the information specified in Part I and II of Form
S-8 have been or will be sent or given to participants in the Stock Benefit Plan
as specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed with the
Commission are hereby incorporated by reference in this Registration Statement:
a) The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 2008 (File No. 001-33223), filed with the Commission on September 15, 2008
pursuant to Section 13(a) of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act");
b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
since the end of the year covered by the Annual Report on Form 10-K referred to
in (a) above; and
c) The description of the Company's common stock contained in the
Registration Statement on Form 8-A filed with the Commission on December 22,
2006 (File No. 001-33223), as amended on December 22, 2006 and January 22, 2007.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein 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 and the prospectus.
All information appearing in this Registration Statement and the prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
3
Item 6. Indemnification of Directors and Officers
Article VI of the Bylaws of the Company set forth circumstances under which
directors, officers, employees and agents of the Company may be insured or
indemnified against liability which they incur in their capacities as such:
ARTICLE VI. INDEMNIFICATION
The Company shall indemnify its directors, officer, and employees in
accordance with the following requirements:
(a) Definitions and rules of construction.
(1) Definitions for purposes of this Article
(i) Action. The term "action" means any judicial or
administrative proceeding, or threatened proceeding, whether civil,
criminal, or otherwise, including any appeal or other proceeding for
review;
(ii) Court. The term "court" includes, without limitation, any
court to which or in which any appeal or proceeding for review is
brought.
(iii) Final judgment. The term "final judgment" means a judgment,
decree, or order which is not appealable or as to which the period for
appeal has expired with no appeal taken.
(iv) Settlement. The term "settlement" includes entry of a
judgment by consent or confession or a plea of guilty or nolo
contendere.
(2) References in this Article to any individual or other person,
including any savings bank, shall include legal representatives,
successors, and assigns thereof.
(b) General. Subject to paragraphs (c) and (f) of this Article, the Company
shall indemnify any person against whom an action is brought or threatened
because that person is or was a director, officer, or employee of the Company,
for:
(1) Any amount for which that person becomes liable under a judgment
in such action; and
(2) Reasonable costs and expenses, including reasonable attorney's
fees, actually paid or incurred by that person in defending or settling
such action, or in enforcing his or her rights under this Article if he or
she attains a favorable judgment in such enforcement action.
(c) Requirements. Indemnification shall be made to person under paragraph
(b) of this Article only if:
(1) Final judgment on the merits is in his or her favor;
(2) In case of:
(i) Settlement,
(ii) Final judgment against him or her, or
4
(iii) Final judgment in his or her favor, other than on the
merits, if a majority of the disinterested directors of the Company
determine that he or she was acting in good faith within the scope of
his or her employment or authority as he or she could reasonably have
perceived it under the circumstances and for a purpose he or she could
reasonably have believed under the circumstances was in the best
interests of the Company or its members.
However, no indemnification shall be made unless the Company gives the Office at
least 60 days' notice of its intention to make such indemnification. Such notice
shall state the facts on which the action arose, the terms of any settlement,
and any disposition of the action by a court. Such notice, a copy thereof, and a
certified copy of the resolution containing the required determination by the
board of directors shall be sent to the District Director, who shall promptly
acknowledge receipt thereof. The notice period shall run from the date of such
receipt. No such indemnification shall be made if the Director of the Office
advises the Company in writing, within such notice period, of his or her
objection thereto.
(d) Insurance. The Company shall obtain insurance to protect it and its
directors, officers, and employees from potential losses arising from claims
against any of them for alleged wrongful acts, or wrongful acts, committed in
their capacity as directors, officers, or employees. The Company may not obtain
insurance which provides for payment of losses of any person incurred as a
consequence of his or her willful or criminal misconduct.
(e) Payment of expenses. If a majority of the directors of the Company
conclude that, in connection with an action, any person ultimately may become
entitled to indemnification under this Article, the directors may authorize
payment of reasonable costs and expenses, including reasonable attorneys' fees,
arising from the defense or settlement of such action. Nothing in this paragraph
(e) shall prevent the directors of the Company from imposing such conditions on
a payment of expenses as they deem warranted and in the interests of the
Company. Before making advance payment of expenses under this paragraph (e), the
Company shall obtain an agreement that the Company will be repaid if the person
on whose behalf payment is made is later determined not to be entitled to such
indemnification.
(f) Exclusiveness of provisions. The indemnification of any person referred
to in paragraph (b) shall be governed solely by these bylaws as provided for in
12 C.F.R. ss.545.121(b) and the obtaining of insurance as referred to in
paragraph (d) shall be governed by paragraph (d) of 12 C.F.R. ss.545.121.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
-------------- -------- --------------------------
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
10 Oritani Financial Corp. 2007 Equity
Incentive Plan **
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Independent Registered Public Accounting Firm Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
5
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* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form S-1 (File No. 333-137309) filed by the Company under the Securities
Act of 1933, with the Commission on September 14, 2006, and all amendments
or reports filed for the purpose of updating such description.
** Incorporated by reference to Appendix A to the proxy statement for the
Special Meeting of Stockholders of Oritani Financial Corp. (File No.
001-33223), filed by Oritani Financial Corp. under the Exchange Act, on
March 20, 2008.
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 to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement;
2. 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;
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
Plan;
4. That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 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 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
5. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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.
6
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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of Washington, New
Jersey, on this 14th day of October, 2008.
ORITANI FINANCIAL CORP.
By: /s/ Kevin J. Lynch
Kevin J. Lynch
Chairman, President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Oritani Financial Corp. (the
"Company") hereby severally constitute and appoint Kevin J. Lynch, as our true
and lawful attorney and agent, to do any and all things in our names in the
capacities indicated below which said Kevin J. Lynch may deem necessary or
advisable to enable the Company to comply with the Securities Act of 1933, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration of shares of common stock to be
granted and shares of common stock to be issued upon the exercise of stock
options to be granted under the Oritani Financial Corp. 2007 Equity Incentive
Plan, 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 said Kevin J. Lynch shall do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signatures Title Date
/s/ Kevin J. Lynch Chairman, President and October 14, 2008
-------------------------- Chief Executive Officer
Kevin J. Lynch (Principal Executive Officer)
/s/ John M. Fields, Jr. Senior Vice President October 14, 2008
-------------------------- and Chief Financial Officer
John M. Fields, Jr. (Principal Financial and Accounting
Officer)
/s/ Nicholas Antonaccio Director October 14, 2008
--------------------------
Nicholas Antonaccio
/s/ Michael A. DeBernardi Director October 14, 2008
--------------------------
Michael A. DeBernardi
/s/ James J. Doyle, Jr. Director October 14, 2008
--------------------------
James J. Doyle, Jr.
/s/ Robert S. Hekemian, Jr Director October 14, 2008
--------------------------
Robert S. Hekemian, Jr.
/s/ John J. Skelly, Jr. Director October 14, 2008
--------------------------
John J. Skelly, Jr.
EXHIBIT INDEX
Exhibit Number Description
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4 Form of Common Stock Certificate (incorporated by reference to Exhibit 4 to
the Registration Statement on Form S-1 (File No. 333-137309), filed by the
Company under the Securities Act of 1933 with the Commission on September
14, 2006, and all amendments or reports filed for the purpose of updating
such description).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C.
10 Oritani Financial Corp. 2007 Equity Incentive Plan (incorporated by
reference to Appendix A to the proxy statement for the Special Meeting of
Stockholders of Oritani Financial Corp. (File No. 001-33223), filed by
Oritani Financial Corp. under the Securities Exchange Act of 1934, on March
20, 2008).
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (contained in the opinion
included as Exhibit 5).
23.2 Consent of Independent Registered Public Accounting Firm
24 Power of Attorney (contained in the signature page to this Registration
Statement).
Exhibit 5
OPINION OF LUSE GORMAN POMERENK & SCHICK, PC
LUSE GORMAN POMERENK & SCHICK
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
5335 WISCONSIN AVENUE, N.W., SUITE 400
WASHINGTON, D.C. 20015
TELEPHONE (202) 274-2000
FACSIMILE (202) 362-2902
www.luselaw.com
WRITER'S DIRECT DIAL NUMBER WRITER'S EMAIL
(202) 274-2000
October 15, 2008
Board of Directors
Oritani Financial Corp.
370 Pascack Road
Township of Washington, New Jersey 07676
Re: Oritani Financial Corp. 2007 Equity Incentive Plan
Registration Statement on Form S-8
Gentlemen:
You have requested the opinion of this firm as to certain matters in
connection with the issuance of Oritani Financial Corp. (the "Company") common
stock, par value $.01 per share (the "Common Stock"), pursuant to the Oritani
Financial Corp. 2007 Equity Incentive Plan (the "Stock Benefit Plan"). We have
reviewed the Company's Charter, Registration Statement on Form S-8 (the "Form
S-8"), as well as applicable statutes and regulations governing the Company and
the offer and sale of the Common Stock.
Based on the foregoing, we are of the following opinion:
Upon the effectiveness of the Form S-8, the Common Stock, when issued in
connection with the exercise of options granted pursuant to the Stock Benefit
Plan and shares of Common Stock granted under the Stock Benefit Plan, will be
legally issued, fully paid and non-assessable.
This opinion has been prepared solely for the use of the Company in
connection with the preparation and filing of the Form S-8, and should not be
used for any other purpose or relied upon by any other person without the prior
written consent of this firm. We hereby consent to the use of this opinion in
the Form S-8.
Very truly yours,
/s/ LUSE GORMAN POMERENK & SCHICK
A Professional Corporation
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
KPMG
KPMG LLP
New Jersy Headquarters
150 John F. Kennedy Parkway
Short Hills, NJ 07078
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Oritani Financial Corp.
Township of Washington, New Jersey
We consent to the use in the Registration Statement on Form S-8 related to the
Oritani Financial Corp. 2007 Equity Incentive Plan of our reports dated
September 11, 2008 with respect to the consolidated balance sheets of Oritani
Financial Corp. and subsidiaries as of June 30, 2008 and 2007, and the related
consolidated statements of income, stockholders' equity and cash flows for each
of the years in the three-year period ended June 30, 2008 and the effectiveness
of internal control over financial reporting incorporated by reference herein.
/s/ KPMG LLP
Short Hills, New Jersey
October 13, 2008