As
filed with the Securities and Exchange Commission
on
May 30, 2008
Registration No.
333-_____
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
UNITY
BANCORP, INC.
(Exact
Name of Registrant as Specified in its Charter)
New
Jersey
(State or
Other Jurisdiction of Incorporation or Organization)
22-3282551
(I.R.S.
Employer Identification Number)
64
Old Highway 22, Clinton, New Jersey 08809
(908)
730-7630
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant's
Principal Executive Offices)
Alan
J. Bedner, Chief Financial Officer
Unity
Bancorp, Inc.
64
Old Highway 22
Clinton,
New Jersey 08809
(908)
730-7630
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Agent for Service)
with
a copy to:
Robert
A. Schwartz, Esq.
Windels
Marx Lane & Mittendorf, LLC
120
Albany Street Plaza
New
Brunswick, New Jersey 08901
(723)
448-2548
Proposed
sale will commence as soon as practicable after this registration
statement
becomes effective.
(Approximate
date of commencement of proposed sale to the public)
If
the only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. [X]
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 (the
"Securities Act"), other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [
]
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier registration statement for the same
offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities
Act, check the following box. [ ]
Indicated by check mark whether the registration is a large accelerated filer,
and accelerated filer, a non-accelerated filer, or a small reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer [
] Accelerated
filer [ ]
Non-accelerated filer [
] Smaller
reporting company [X]
(Do not check if a smaller reporting
company)
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities to be registered
|
Amount
to be registered
|
Proposed
maximum offering price per unit
|
Proposed
maximum aggregate offering price
|
Amount
of registration fee (1)
|
|
Common
Stock, no
par value
|
200,000 shares
|
$7.26
|
$1,452,000.00
|
$57.06
|
___________
(1) Estimated
solely for the purpose of determining the registration fee, in accordance with
Rule 457 under the Securities Act of 1933, based upon the average of the
reported high and low sales prices of the Common Stock report on the Nasdaq
on May 28, 2008.
UNITY BANCORP,
INC.
DIVIDEND
REINVESTMENT PLAN
WITH
OPTIONAL CASH INVESTMENT
Common
Stock
(no par
value)
This
Prospectus relates to shares of common stock, no par value (the "Common Stock")
of Unity Bancorp, Inc. (the "Company") available for purchase under the Unity
Bancorp, Inc. Dividend Reinvestment Plan with Option Cash Investment (the
"Plan"). The Plan provides each holder of Common Stock with a method
of purchasing additional shares of Common Stock without payment of any brokerage
commissions or other administrative fees of any kind.
The Plan
consists of a dividend reinvestment component and a cash purchase
component. The dividend reinvestment component permits a participant
in the Plan to use such participant's cash dividends to purchase additional
shares of the Common Stock. The cash purchase component allows a
participant to make optional cash payments to purchase additional shares of
Common Stock.
Shares of
Common Stock available under the Plan may be obtained, at the option of the
Company, on the open market or from the legally authorized but unissued shares
of Common Stock held by the Company. The purchase price for shares
obtained under the Plan will be based upon the market price of the Common
Stock.
Each
participant in the Plan should recognize that neither the Company nor Registrar
and Transfer Company, the transfer agent administering the Plan for the Company,
can provide any assurance that shares of Common Stock purchased under the Plan
will, at any time, be worth more or less than their purchase price.
The Plan
does not represent a change in the dividend policy of the Company, which will
continue to depend upon earnings, financial requirements and other factors, and
which will be determined by the Company's Board of Directors from time to
time. Stockholders who do not wish to participate in the Plan will
continue to receive cash dividends as declared. It is suggested that
this Prospectus be retained for future reference.
The date
of this Prospectus is May 30, 2008.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
Company hereby incorporates by reference the following documents heretofore
filed with the Securities and Exchange Commission (the
“Commission”): (i) the audited financial statements of Unity Bancorp,
Inc. as of and for the years ended December 31, 2006 and 2007 included in the
Company's Annual Report on Form 10-K and the unaudited financial statements as
of and for the three months ended March 31, 2007 and 2008 included in the
Company's Quarterly Report on Form 10-Q; and (ii) the description of the
Company's Common Stock which is contained in the Company's Registration
Statement on Form 8-A.
In
addition, 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 of this Prospectus and prior to the termination of this offering shall be
deemed incorporated by reference into this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The
Company has filed with the Commission a Registration Statement on Form S-3
(together with the exhibits and any amendments thereto, the “Registration
Statement”) under the Securities Act of 1933, as amended, of which this
Prospectus is a part. This Prospectus does not contain all the information set
forth in the Registration Statement, to which reference is hereby made, copies
of which may be obtained from the Commission as specified above.
The
Company will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon such person's written or oral request, a copy of
any and all of the documents which are incorporated by reference herein (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Such requests should
be directed to Unity Bancorp, Inc., 64 Old Highway 22, Clinton, New Jersey
08809.
THE
COMPANY
The
Company was organized in February, 1994 by the Board of Directors of Unity Bank
(the "Bank"). The Bank is a wholly owned subsidiary of the
Company. The Bank is a New Jersey state chartered commercial bank
formed in 1991. The offices of the Company and the Bank are located
at 64 Old Highway 22, Clinton, New Jersey 08809.
As a bank
holding company, the Company is subject to regulation and supervision by the
Board of Governors of the Federal Reserve System under the Bank Holding Company
Act of 1956, as amended. In addition to the Federal Reserve, the Bank
is subject to regulation by the New
Jersey Department of Banking and Insurance and the Federal Deposit Insurance
Corporation. The principal source of funds for dividend payments by
the Company is dividends paid by the Bank to the Company. The amount
of dividends paid by the Bank is limited by state and federal laws and
regulations.
The
provisions of the Company's Dividend Reinvestment Plan with Option Cash
Investment (the "Plan") are presented herein in a question and answer
format. Those stockholders who do not participate in the Plan will
continue to receive cash dividends, if and when declared.
THE
PLAN
The Plan
provides stockholders with a simple method of obtaining additional shares of
Common Stock by reinvesting their cash dividends or making optional cash
payments without payment of any brokerage commission or administrative
commissions or fees. The Plan will be administered by the Company's
stock transfer agent, Registrar and Transfer Company.
DESCRIPTION
OF THE PLAN
The
following provides a description of the Plan in question and answer
format.
1. WHAT IS
THE PURPOSE OF THE PLAN?
The
purpose of the Plan is to provide stockholders of the Company with an
opportunity to increase their investment in the Common Stock without paying
brokerage commissions or other administrative fees of any
kind. Stockholders may purchase additional shares of the Common Stock
under the Plan.
2. WHO
ADMINISTERS THE PLAN?
The Plan
is administered by Registrar and Transfer Company ("R&T"), the Company's
transfer agent acting as agent for each participant. R&T will
apply cash dividends on Common Stock subject to the Plan (including shares held
in the participant's name and shares accumulated under the Plan), together with
any optional cash payments received from such participant, to the purchase of
additional whole and fractional shares of Common Stock for such
participant.
Any
questions and correspondence concerning the Plan should be directed to:
Registrar and Transfer Company, 10 Commerce Drive, Cranford, NJ
07016-3572.
Any
written correspondence sent to R&T should refer to Unity Bancorp, Inc. or
include the bottom portion of a participant's account statement with such
correspondence.
3. WHO IS
ELIGIBLE TO PARTICIPATE IN THE PLAN?
All
stockholders of record of the Company are eligible to participate in the
Plan. Any stockholders whose shares are registered in names other
than their own (i.e. the name of a brokerage firm, bank or nominee) must either
become stockholders of record by having their shares transferred into their own
names. Once a stockholder becomes a registered stockholder of record,
he or she will be eligible to participate in the Plan and may do so by
completing an authorization card.
4. HOW DOES
A STOCKHOLDER ENROLL IN THE PLAN?
Stockholders
may enroll in the Plan by completing an authorization card. If
R&T receives the signed authorization card at least 20 days prior to the
date on which a dividend will be paid ("Dividend Payment Date"), the Plan will
become effective for the participant as of that Dividend Payment
Date. Otherwise, the Plan will be effective for such participant as
of the next Dividend Payment Date. Once a participant has enrolled in
the Plan, the participant may begin making optional cash payments
immediately. Optional cash payments may only be made during the 30
business day period preceding a Dividend Payment Date.
5. WHAT ARE
THE INVESTMENT OPTIONS UNDER THE PLAN AND THE
PURCHASE PRICE FOR SHARES UNDER EACH OPTION?
The Plan
consists of a dividend reinvestment component and an optional cash purchase
component.
DIVIDEND
REINVESTMENT COMPONENT. Participants under the Plan may reinvest
their cash dividends to purchase additional shares of Common Stock, which will
be credited to their accounts. Dividends on the shares of Common
Stock credited to participants' accounts under the Plan will also be reinvested
for the participants, thereby compounding their investments. All
shares of Common Stock purchased pursuant to the Plan will be purchased either
directly from the Company, in which case the shares will be issued by the
Company out of its legally authorized but unissued shares of Common Stock, or on
the open market at then current market prices. The choice of whether
shares will be purchased from the Company or on the open market will be
determined by the Company in its discretion, based on the best interests of the
Company.
The
purchase price for Common Stock purchased from the Company will be the average
market price of Common Stock for the five (5) business days preceding the
Dividend Payment Date. The market price will be the closing price for
the Common Stock, as reported by the Nasdaq. The purchase price for
Common Stock purchased through the Plan on the open market will be R&T's
actual purchase price for the Common Stock.
OPTIONAL
CASH PURCHASE COMPONENT. Participants may purchase additional shares
of Common Stock by sending R&T any amount between $100 and $2,500 per
dividend period. These cash payments will be used to purchase
additional shares of Common Stock at of current market
prices. Optional cash payments must be received by R&T no more
than 30 business days and no less than five (5) business days prior to a
Dividend Payment Date. Payments that are not received within this
period will be returned to a participant.
Payments
received from a participant within the above-described time period will be held
by R&T and combined with funds from that participant's cash dividend for
purchase of Common Stock under the Plan. No interest will be paid on
these funds. Optional cash payments should be made by check or money
order made payable to R&T. At the discretion of the Company, all
shares will be purchased either directly from the Company and issued out of the
Company's legally authorized but unissued shares, or purchased on the open
market.
The
purchase price for Common Stock purchased through optional cash purchases will
be the average market price of the Common Stock for the five (5) business days
preceding the Dividend Payment Date, if the shares are issued directly from the
Company. The average market price will be the closing price for the
Common Stock, as reported by the Nasdaq. The purchase price for
Common Stock purchased through optional cash purchases on the open market will
be R&T's actual purchase price.
6. WHAT ARE
THE LIMITS ON OPTIONAL CASH PAYMENTS?
Optional
cash payments are limited to a minimum of $100 and a maximum of $2,500 per
quarter. No interest will be paid on voluntary cash payments held by
R&T prior to their investment. Cash payments must be received by
R&T no more than 30 business days and no less than five (5) business days
prior to a Dividend Payment Date. Payments that are not
received within this period will be returned to the participants.
7. WHEN WILL
PURCHASES OF SHARES BE MADE?
R&T
will make every reasonable effort to invest all dividends and optional cash
payments as promptly after receipt as possible. Participants' funds
held by R&T prior to purchase during this period will not bear
interest. Investment in the Common Stock will then be completed as
soon as possible.
8. HOW WILL
PURCHASES UNDER THE PLAN BE MADE?
All
purchases of Common Stock under the Plan will be made, at the discretion of the
Company, either directly from the Company and issued out of the Company's
legally authorized but unissued shares or on the open market.
9. HOW MANY
SHARES OF COMMON STOCK WILL BE CREDITED TO PARTICIPANTS?
For each
participant in the Plan, the entire amount of such participant's dividend and
any optional cash payment will be used to purchase the Common
Stock. If the amount purchased is not equal to an exact whole number
of shares, the participant's account will be credited with a fractional share
(calculated to four (4) decimal places).
10. WILL
CERTIFICATES BE ISSUED FOR COMMON STOCK PURCHASES?
The
shares of Common Stock purchased under the Plan will be held by R&T in a
participant's account without charge. Upon receipt of a written
request from a participant, the Company will issue a certificate or certificates
representing the whole shares of Common Stock in such participant's
account.
11. CAN A
PARTICIPANT ADD SHARES TO HIS OR HER ACCOUNT BY TRANSFERRING
STOCK CERTIFICATES THAT HE OR SHE POSSES?
Yes. A
participant may increase the number of shares held n his account by depositing
certificates representing shares of Common Stock with the Plan
Administrator. Such certificates must be presented in transferable
form and must be accompanied by a written request that the shares be added to
the participant's account.
12. WHAT
HAPPENS IF A PARTICIPANT SELLS ALL OF THE SHARES FOR WHICH
THE PARTICIPANT HAS RECEIVED A CERTIFICATE?
Participation
in the Plan will apply to all shares of Common Stock that are registered to a
Participant at the time of enrollment, plus all shares of Common Stock that the
Participant acquires while his or her authorization remains in
effect. If a participant sells all the shares for which he has a
certificate, but his participation in the Plan is not terminated, dividends on
the shares of Common Stock held in such participant's account under the Plan
will continue to be reinvested.
13. ARE THERE
ANY FEES OR EXPENSES INCURRED BY PARTICIPANTS IN THE
PLAN?
There are
no additional fees or expenses charged to stockholders who participate in the
Plan. The Company will pay all administrative fees connected with a
stockholder's participation in the Plan. The only cost to a
participant is a termination fee if the participant decides to withdraw from the
Plan. (See DESCRIPTION OF THE PLAN--HOW DOES A PARTICIPANT WITHDRAW
FROM THE PLAN)
14. HOW DOES
A PARTICIPANT WITHDRAW FROM THE PLAN?
A
participant may withdraw from the Plan at any time and for any
reason. The participant must give R&T written notice of
withdrawal from the Plan at least 30 days before a Dividend Payment
Date. The notice should include a termination fee of
$3.00. Upon termination, the Company will provide the participant
with a certificate for the total number of whole shares credited to such
participant's account under the Plan and a check for any fraction of a share of
Common Stock, or a check for the total shares held in the Plan valued at the
then current market price of the Common Stock. R&T may also
terminate a participant's account at any time in its discretion by notice in
writing mailed to the participant.
15. HOW WILL
A PARTICIPANT'S COMMON STOCK BE VOTED AT MEETINGS
OF STOCKHOLDERS?
Each
participant will have the sole right to vote any whole shares (but not
fractional shares) purchased for such participant's account under the Plan on
the record date for a vote. Shares for which no voting instructions
are received will not be voted.
16. WHO
INTERPRETS THE PLAN?
R&T,
as transfer agent for the Company, will interpret the Plan. The
terms, conditions, and operations of the Plan are governed by the laws of the
State of New Jersey.
17. WHAT
REPORTS WILL BE SENT TO PARTICIPANTS IN THE PLAN?
R&T
will provide each participant with an account statement each time shares of
Common Stock are purchased for the participant under the Plan. The
statement will show the total number of whole and fractional shares in the
participant's account as of a certain date, as well as the amount of the most
recent dividend, any optional cash payments concurrently invested, the number of
shares of Common Stock purchased and the price per share. The price
per share is the average price of all shares purchased under the Plan for all
participants in connection with a given dividend, including shares purchased
with any optional cash payments.
Dividends
on the accumulated shares and any fees paid on a participant's behalf by the
Company will be included in an information tax return filed with the Internal
Revenue Service. A copy of this return will also be supplied to
participants.
18. MAY THE
PLAN BE AMENDED, SUPPLEMENTED OR TERMINATED?
The Plan
may be amended, supplemented or terminated by R&T or the Company at any time
by the delivery of written notice to each participant at least 30 days prior to
the effective date of the amendment, supplement or termination. Any
amendment or supplement shall be deemed to be accepted by the participant unless
prior to its effective date, R&T receives written notice of termination of
the participant's account under the Plan.
19. WHAT IS
THE RESPONSIBILITY OF THE COMPANY AND R&T UNDER THE
PLAN?
Neither
the Company nor R&T shall have any responsibility beyond the exercise of
ordinary care for any action taken or omitted pursuant to the Plan; nor shall
they have any duties, responsibilities or liabilities except as are expressly
set forth herein; nor shall they be liable for any act done in good faith or for
any good faith omission to act; nor shall they have any liability in
connection with an inability to purchase shares or with respect to the timing or
the price of any purchase.
20. HOW IS A
RIGHTS OFFERING, STOCK DIVIDEND, OR STOCK SPLIT
HANDLED UNDER THE PLAN?
Any stock
dividend or stock split applicable to shares of Common Stock held by a
participant under the Plan, whether held in the participant's account or in the
participant's own name, will be credited to the participant's
account. In the event the Company makes available to stockholders the
rights to purchase additional shares or securities, participants under the Plan
will receive a subscription warrant for such rights directly from
R&T.
21. WHAT IS
THE TAX STATUS OF REINVESTED CASH DIVIDENDS AND SHARES OF
COMMON STOCK ACQUIRED THROUGH THE PLAN?
ACQUISITION
OF COMMON STOCK UNDER THE PLAN: For federal income tax purposes,
participants in the Plan who have their cash dividends reinvested in Common
Stock under the Plan will be treated the same as nonparticipants with respect to
the cash dividends on their shares of Common Stock. All participants
in the Plan will be treated as having received on each Dividend Payment Date the
full amount of the cash dividend for that Dividend Payment Date, regardless of
whether the cash dividends are actually received or are applied to the purchase
of shares of Common Stock under the Plan.
Participants
in the Plan who have their cash dividends reinvested in Common Stock will also
be treated as if they actually received a cash dividend to the extent and in the
amount that any administrative fees are paid by the Company on their
behalf. Each participant in the Plan will have a tax basis in the
shares of Common Stock purchased equal to the amount of cash dividends applied
to the purchase of such shares of Common Stock plus any administrative
fees.
USE
OF PROCEEDS
The
Company does not know precisely the number of shares of its Common Stock that it
will ultimately sell under the Plan or the prices at which those shares will be
sold. The net proceeds from the sale of Common Stock offered pursuant
to the Plan will be used for general corporate purposes, including without
limitation, investments in and advances to the Bank and any other subsidiaries
which the Company may form or acquire.
INDEMNIFICATION
Article
Nine of the Company's Certificate of Incorporation requires the Company to
indemnify its officers, directors, employees and agents and former officers,
directors, employees and agents, and any other persons serving at the request of
the Company as an officer, director, employee or agent of another corporation,
association, partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees, judgments, fines and amounts paid in
settlement) incurred in connection with any pending or threatened action, suit,
or proceeding, whether civil, criminal, administrative or investigative, with
respect to which such officer, director, employee, agent or other person is a
party, or is threatened to be made a party, to the full extent permitted by the
New Jersey Business Corporation Act.
The
Company's Certificate of Incorporation also provides that the Company may
purchase and maintain insurance on behalf of any person or persons enumerated in
Article Nine thereof against any liability asserted against or incurred by such
person or persons arising out of their status as corporate directors, officers,
employees, or agents whether or not the Company would have the power to
indemnify them against such liability under the provisions of this
article.
With
respect to possible indemnification of officers, directors, employees and agents
of the Company for liabilities arising under the Securities Act, the Company has
been informed 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.
EXPERTS
The
consolidated balance sheet of the Company as of December 31, 2006, and the
consolidated statements of income, changes in shareholders' equity and cash
flows for each of the years in the two-year period ended December 31, 2006, have
been incorporated by reference herein in reliance upon the report of KPMG LLP,
independent registered public accounting firm, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and
auditing. The audit report covering the December 31, 2006 financial
statements refers to the Company’s adoption of SEC Staff Accounting Bulletin No.
108, “Considering the Effects of Prior Year Misstatements when Quantifying
Misstatements in Current Year Financial Statements” on January 1,
2006.
The
consolidated balance sheet of the Company as of December 31, 2007, and the
consolidated statements of income, changes in stockholders' equity and cash
flows for the year then ended, incorporated by reference in this
registration statement have been audited by McGladrey & Pullen, LLP,
independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
LEGAL
OPINION
The
validity of the shares of Common Stock offered hereby is being passed upon for
the Company by Windels Marx Lane & Mittendorf, LLP, 120 Albany Street Plaza,
New Brunswick, New Jersey, 08901.
No
dealer, salesperson or other person has been authorized to give any information
or to make any representations other than those contained in this Prospectus,
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Company. This Prospectus does
not constitute an offer to sell, or a solicitation of an offer to buy, any of
the securities offered hereby in any jurisdiction in which, or to any person to
whom, such offer or solicitation may not lawfully be made. Neither
the delivery of this Prospectus nor any sales made hereunder shall, under any
circumstances, create any implication that the information contained herein is
correct as of any time subsequent to the date hereof.
UNITY
BANCORP, INC.
DIVIDEND
REINVESTMENT PLAN
WITH OPTIONAL CASH
INVESTMENT
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other
Expenses of Issuance and Distribution.
| SEC Registration Fee | $ |
57.06
|
| Legal Fees and Expenses |
1,000.00
|
|
| Accounting Fees and Expenses |
25,000.00
|
|
| Miscellaneous |
500.00
|
|
| Total | $ |
26,557.06
|
Item
15. Indemnification of Directors
and Officers.
Article
Nine of the Certificate of Incorporation of the Registrant and the New Jersey
Business Corporation Act (the “BCA”) provide that the corporation shall
indemnify it's present and former officers, directors, employees, and
agents and persons serving at its request ("corporate agents") against expenses,
including attorney's fees, judgments, fines or amounts paid in settlement,
incurred in connection with any pending or threatened civil or criminal
proceeding involving the corporate agent by reason of his being or having been a
corporate agent if (a) the agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation, and (b) with respect to any criminal proceeding, the corporate
agent had no reasonable cause to believe his conduct was unlawful.
With
respect to any derivative action, the Registrant is empowered to indemnify a
corporate agent against his expenses (but not his liabilities) incurred in
connection with any proceeding involving the corporate agent by reason of his
being or having been a corporate agent if the agent acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation. However, only the court in which the proceeding was
brought can empower a corporation to indemnify a corporate agent against
expenses with respect to any claim, issue or matter as to which the agent was
adjudged liable for negligence or misconduct.
Under the
BCA, the Registrant may indemnify a corporate agent in a specific case if a
determination is made by any of the following that the applicable standard of
conduct was met: (i) the Board of Directors, or a committee thereof, acting by a
majority vote of a quorum consisting of disinterested directors; (ii) by
independent legal counsel, if there is not a quorum of disinterested directors
or if the disinterested quorum empowers counsel to make the determination; or
(iii) by the shareholders.
The BCA
further provides that a corporate agent is entitled to mandatory indemnification
to the extent that the agent is successful on the merits or otherwise in any
proceeding, or in defense of any claim, issue or matter in the
proceeding. In advance of the final disposition of a proceeding,
the Registrant may pay an agent's expenses if the agent agrees to repay the
expense unless it is ultimately determined he is entitled to
indemnification.
Article
Nine of the Certificate of Incorporation of the Registrant also provides that
such indemnification shall not exclude any other rights to indemnification to
which a person may otherwise be entitled, and authorizes the corporation to
purchase insurance on behalf of any of the persons enumerated against any
liability whether or not the corporation would have the power to indemnify him
under the provisions of Article Nine.
With
respect to possible indemnification of officers, directors, and other corporate
agents for liabilities arising under the Securities Act, the Registrant has been
informed 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.
Item
16. Exhibits.
| Exhibit No. | Description |
|
(5)
|
Opinion
of Windels Marx Lane & Mittendorf, LLP
|
| (23)(a) | Consent of Consent of McGladrey & Pullen, LLP |
| (23)(b) | Consent of KPMG LLP |
| (23)(c) | The consent of Windels Marx Lane & Mittendorf, LLP is contained in their opinion filed as Exhibit(5) to this Registration Statement. |
Item
17. Undertakings.
The
undersigned Registrant hereby undertakes 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 the Registration Statement or any
material change to such information in the Registration Statement.
The
undersigned Registrant hereby undertakes 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.
The
undersigned Registrant hereby undertakes 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 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.
SIGNATURE
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all the requirements of
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Clinton, State of New Jersey, on this 30th day of
May, 2008.
UNITY
BANCORP, INC.
(Registrant)
|
By:
|
/s/ James. A. Hughes |
| James A. Hughes | |
| President and CEO | |
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
on Form S-3 has been signed below by the following persons in the capacities
indicated on this 30th day of
May, 2008.
| Name | Title | Date |
| /s/David D. Dallas | Chairman of the Board | May 30, 2008 |
| David D. Dallas | ||
| /s/James A. Hughes | President, CEO and Director | May 30, 2008 |
| James A. Hughes | ||
| /s/Alan J. Bedner | Chief Financial Officer (principal financial and accounting officer) | May 30, 2008 |
| Alan J. Bedner |
| Name |
Title
|
Date |
| Frank Ali | Director | May 30, 2008 |
| Frank Ali | ||
| /s/Mark S. Brody | Director | May 30, 2008 |
| Mark S. Brody | ||
| /s/ Wayne Courtright | Director | May 30, 2008 |
| Wayne Courtright | ||
| /s/Robert H. Dallas, II | Director | May 30, 2008 |
| Robert H. Dallas, II | ||
| /s/Charles S. Loring | Director | May 30, 2008 |
| Charles S. Loring | ||
| /s/Peter E. Maricondo | Director | May 30, 2008 |
| Peter E. Maricondo | ||
| /s/Allen Tucker | Director | May 30, 2008 |
| Allen Tucker |
Exhibit
Index
| Exhibit No. | Description |
|
(5)
|
Opinion
of Windels Marx Lane & Mittendorf, LLP
|
| (23)(a) | Consent of Consent of McGladrey & Pullen, LLP |
| (23)(b) | Consent of KPMG LLP |
| (23)(c) | The consent of Windels Marx Lane & Mittendorf, LLP is contained in their opinion filed as Exhibit(5) to this Registration Statement. |