Registration No. 333-_________
As filed with the Securities and Exchange Commission on March 24, 2010
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8REGISTRATION 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 Bank Employees' Savings & Profit Sharing Plan and Trust
(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 780
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)
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 Securities Exchange Act of 1934, as
amended. (Check one):
Large accelerated filer [] Accelerated filer [x] Non-accelerated filer []
Smaller reporting company []
(Do not check if a smaller reporting company)
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If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. [x]
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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Participation Interests (1) __ __ (2)
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) Pursuant to Rule 457(h)(3) no registration fee is required to be paid.
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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.
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PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
This Registration Statement relates to the registration of an indeterminate
number of participation interests in the Oritani Bank Employees' Savings &
Profit Sharing Plan and Trust (the "Plan"). Documents containing the information
required by Part I of the Registration Statement have been or will be sent or
given to participants in the Plan, as specified 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 Prospectus (Commission File No. 333-137309) filed with the
Commission on November 22, 2006 pursuant to Rule 424(b)(3) of the Securities
Act;
b) The Company's Annual Report on Form 10-K for the year ended June 30,
2009 (File No. 001-33223), filed with the Commission on September 11, 2009,
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended;
c) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since the end of the
year covered by the Annual Report on Form 10-K referred to in (a) above; and
d) 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, as amended on December 22, 2006 and January 22, 2007 (File No. 001-33223).
e) The Company's Form 11-K for the Plan for the year ended December 31,
2008 (File No. 001-33223) filed with the Commission on July 10, 2009 pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended, 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.
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Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
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;
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(2) In case of:
(i) Settlement,
(ii) Final judgment against him or her, or
(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
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4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
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
99 Prospectus Supplement **
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 with the Commission on September 14, 2006, and all amendments or
reports filed for the purpose of updating such description.
** Incorporated by reference to the Pre-effective Amendment No. 1 to the Form
S-1 (Commission File No. 333-137309) filed by the Company under the
Securities Act with the Commission on October 27, 2006.
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 Company'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 Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
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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, State of
New Jersey, on this 24th day of March, 2010.
ORITANI FINANCIAL CORP.
By: /s/ Kevin J. Lynch
Kevin J. Lynch
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 participation interests under
the Oritani Bank Employees' Savings & Profit Sharing Plan and Trust, 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
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/s/ Kevin J. Lynch Chairman, President and March 24, 2010
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Kevin J. Lynch Chief Executive Officer
(Principal Executive Officer)
/s/ John M. Fields, Jr. Executive Vice President and March 24, 2010
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John M. Fields, Jr. Chief Financial Officer
(Principal Financial and Accounting
Officer)
/s/ Michael A. DeBernardi Director, Executive Vice President March 24, 2010
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Michael A. DeBernardi and Chief Operating Officer
/s/ Nicholas Antonaccio Director March 24, 2010
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Nicholas Antonaccio
/s/ James J. Doyle, Jr. Director March 24, 2010
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James J. Doyle, Jr.
/s/ Robert S. Hekemian, Jr. Director March 24, 2010
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Robert S. Hekemian, Jr.
/s/ John J. Skelly, Jr. Director March 24, 2010
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John J. Skelly, Jr.
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the Plan) have duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Township of Washington, State of New Jersey, on this
24th day of March 2010.
Oritani Bank Employees' Savings & Profit
Sharing Plan and Trust
By: /s/ John M. Fields
Name: John M. Fields
Title: Trustee
EXHIBIT INDEX
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
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4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
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
99 Prospectus Supplement **
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* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form S-1 (File No. 333-137309) originally filed by the Company under the
Securities Act with the Commission on September 14, 2006, and all
amendments or reports filed for the purpose of updating such description.
** Incorporated by reference to the Pre-effective Amendment No. 1 to the Form
S-1 (Commission File No. 333-137309) filed by the Company under the
Securities Act with the Commission on October 27, 2006.
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 780
WASHINGTON, D.C. 20015
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TELEPHONE (202) 274-2000
FACSIMILE (202) 362-2902
www.luselaw.com
WRITER'S DIRECT DIAL NUMBER WRITER'S EMAIL
(202) 274-2000
March 24, 2010
Board of Directors
Oritani Financial Corp.
370 Pascack Road
Township of Washington, New Jersey 07676
Re: Oritani Bank Employees' Savings & Profit Sharing Plan and Trust
Registration Statement on Form S-8
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Gentlemen:
You have requested the opinion of this firm as to certain matters in
connection with the registration of participation interests in the Oritani Bank
Employees' Savings & Profit Sharing Plan and Trust (the "Plan").
In rendering the opinion expressed herein, we have reviewed the Charter of
Oritani Financial Corp. (the "Company"), the Plan, the Company's Registration
Statement on Form S-8 (the "Form S-8"), as well as applicable statutes and
regulations governing the Company. We have assumed the authenticity, accuracy
and completeness of all documents in connection with the opinion expressed
herein. We have also assumed the legal capacity and genuineness of the
signatures of persons signing all documents in connection with which the
opinions expressed herein are rendered.
Based on the foregoing, we are of the following opinion:
Upon the effectiveness of the Form S-8 and in accordance with the Plan, the
participation interests in the Plan will be legally issued, fully paid and
non-assessable and the shares of common stock, par value $0.01 per share, of the
Company that may be purchased by the Plan will, upon purchase, 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
LUSE GORMAN POMERENK & SCHICK
A Professional Corporation
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
KPMG LLP
New Jersey Headquarters
150 John F. Kennedy Highway
Short Hills, NJ 07078
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Oritani Financial Corp. and subsidiaries:
We consent to the use of our reports dated September 11, 2009 with respect to
the consolidated balance sheets of Oritani Financial Corp. and subsidiaries as
of June 30, 2009 and 2008 and the related consolidated statements of income,
changes in stockholders' equity, and cash flows for each of the years in the
three-year period ended June 30, 2009 and the effectiveness of internal control
over financial reporting as of June 30, 2009 incorporated by reference herein
/s/ KPMG LLP
March 24, 2010