REGISTRATION NO. 333-5559
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-4
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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CARVER BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 6035 APPLICATION PENDING
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(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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C/O CARVER FEDERAL SAVINGS BANK
75 WEST 125TH STREET
NEW YORK, NEW YORK 10027-4512
(212) 876-4747
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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THOMAS L. CLARK, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
c/o CARVER FEDERAL SAVINGS BANK
75 West 125th Street
New York, New York 10027-4512
(212) 876-4747
(NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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WITH COPIES TO:
ROBERT C. AZAROW, ESQ.
KOFI APPENTENG, ESQ.
THACHER PROFFITT & WOOD
Two World Trade Center
New York, New York 10048
(212) 912-7400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF
THE SECURITIES TO THE PUBLIC: As soon as practicable
after the effective date of this Registration
Statement.
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If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |X|
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CALCULATION OF REGISTRATION FEE
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Title of each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered(1) Offering Price Per Share(2) Aggregate Offering Price (2) Registration Fee(3)
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Common Stock 2,314,375 $8.00 $18,515,000 $6,384
$.01 par value
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(1) Based on the number of shares of common stock of Carver Bancorp, Inc.
to be issued in exchange for the same number of shares of common stock
of Carver Federal Savings Bank in connection with the reorganization of
Carver Federal Savings Bank as described in the Proxy
Statement-Prospectus.
(2) The proposed maximum offering price per share reflects the market price
of the common stock of Carver Federal Savings Bank to be converted and
exchanged in connection with the reorganization described in the Proxy
Statement-Prospectus, computed in accordance with Rule 457(f)(1) under
the Securities Act of 1933. It is based on the average of the high and
low prices of the common stock on June 4, 1996, as reported on the
Nasdaq National Market System. The proposed maximum aggregate offering
price is estimated solely for the purpose of calculating the
registration fee.
(3) Fee previously paid with filing of Registration Statement on June 7,
1996.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") INTER ALIA,
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of another corporation or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he 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, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Similar indemnity is authorized for such person against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him, and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
Article IX of the Company's Certificate of Incorporation provides that a
director shall not be personally liable to the Company or its stockholders for
damages for breach of his fiduciary duty as a director, except to the extent
such exemption from liability or limitation thereof is expressly prohibited by
the DGCL. Article X of the Company's Certificate of Incorporation requires the
Company, among other things, to indemnify to the fullest extent permitted by the
DGCL, any person who is or was or has agreed to become a director or officer of
the Company, who was or is made a party to, or is threatened to be made a party
to, or has become a witness in, any threatened, pending or completed action,
suit or proceeding, including actions or suits by or in the right of the
Company, by reason of such agreement or service or the fact that such person is,
was or has agreed to serve as a director, officer, employee or agent of another
corporation or organization at the written request of the Company.
Article X also empowers the Company to purchase and maintain insurance to
protect itself and its directors and officers, and those who were or have agreed
to become directors or officers, against any liability, regardless of whether or
not the Company would have the power to indemnify those persons against such
liability under the law or the provisions set forth in the Certificate of
Incorporation. The Company is also authorized by its Certificate of
Incorporation to enter into individual indemnification contracts with directors
and officers. The Bank currently maintains and the Company expects to purchase
directors' and officers' liability insurance consistent with the provisions of
the Certificate of Incorporation as soon as practicable.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The exhibits and financial statement schedules filed as a part of this
Registration Statement are as follows:
(A) LIST OF EXHIBITS. (All exhibits were previously filed except for Exhibit No.
99.1)
EXHIBIT NO. DESCRIPTION PAGE NO.
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2.1 Agreement and Plan of Reorganization by and among
Carver Federal Savings Bank, Carver Bancorp, Inc.
and Carver Interim Federal Savings Bank (included
as Appendix A to the Proxy Statement-Prospectus)
3.1 Certificate of Incorporation of Carver Bancorp,
Inc. (included as Appendix C to the Proxy
Statement-Prospectus)
3.2 Bylaws of Carver Bancorp, Inc.
3.3 Federal Stock Charter of Carver Federal Savings
Bank
3.4 Bylaws of Carver Federal Savings Bank
4.1 Draft Stock Certificate of Carver Federal Savings
Bank
5.1 Opinion of Thacher Proffitt & Wood re: legality
8.1 Opinion of Thacher Proffitt & Wood re: tax matters
10.1 Carver Federal Savings Bank 1995 Stock Option
Plan, effective as of September 12, 1995
10.2 Carver Federal Savings Bank Retirement Income
Plan, as amended and restated effective as of
January 1, 1989
10.3 Carver Federal Savings Bank 401(k) Savings Plan
in RSI Retirement Trust, as amended and restated
effective as of May 1, 1993
10.4 Carver Federal Savings Bank Employee Stock
Ownership Plan, effective as of January 1, 1993
10.5 Carver Federal Savings Bank Deferred Compensation
Plan, effective as of August 10, 1993
10.6 Carver Federal Savings Bank Retirement Plan for
Nonemployee Directors, effective as of October
24, 1994
10.7 Carver Federal Savings Bank Management
Recognition Plan, effective as of September 12,
1995
10.8 Carver Federal Savings Bank Incentive
Compensative Plan, effective as of September 12,
1995
10.9 Employment Agreement by and between Carver
Federal Savings Bank and Thomas L. Clark, entered
into as of January 3, 1995
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10.10 Employment Agreement by and between Carver
Federal Savings Bank and Biswarup Mukherjee,
entered into as of April 14, 1995
10.11 Supplemental Executive Retirement Agreement by
and between Carver Federal Savings Bank and
Richard T. Greene, entered into as of January 30,
1995
16 Letter re Change in Certifying Accountant
23.1 Consent of Thacher Proffitt & Wood (included in
Exhibits 5.1 and 8.1 to this Registration
Statement)
23.2 Consent of Mitchell & Titus, LLP
23.3 Consent of Radics & Co., LLC
27.1 Financial Data Schedule (only filed in EDGAR
format)
99.1 Additional Proxy Materials of Carver Federal
Savings Bank for 1996 Annual Meeting of
Stockholders
(B) FINANCIAL STATEMENT SCHEDULES.
All schedules have been omitted as not applicable or not required under the
rules of Regulation S-X.
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes as follows:
(1) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this
Registration Statement, by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c), the issuer undertakes
that such reoffering prospectus will contain the information called for
by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information
called for by the other items of the applicable form.
(2) That every prospectus (i) that is filed pursuant to paragraph (1)
immediately preceding, or (ii) that purports to meet the requirements
of Section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of
an amendment to the Registration Statement and will not be used until
such amendment is effective, and that, for purposes 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 respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of
this Form, within one business day of receipt of such request, and to
send the incorporated documents by first class mail or other equally
prompt means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement through
the date of responding to the request.
(4) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved
therein, that was not the subject of and included in the registration
statement when it became effective.
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SIGNATURES
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-4 and has duly caused this Registration
Statement, or amendment thereto, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on July
23, 1996.
CARVER BANCORP, INC.
By: /s/ Thomas L. Clark, Jr.
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Thomas L. Clark, Jr.
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
and any rules and regulations promulgated thereunder, this Registration
Statement, or amendment thereto, has been signed by the following persons in the
capacities and on the dates indicated.
NAME TITLE DATE
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/s/ Thomas L. Clark, Jr. Director, President and Chief July 23, 1996
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Thomas L. Clark, Jr. Executive Officer
(Principal executive officer)
* Executive Vice President and July 23, 1996
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Biswarup Mukherjee Chief Financial Officer
* Director July 23, 1996
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David N. Dinkins
* Director July 23, 1996
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Linda H. Dunham
* Director July 23, 1996
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Richard T. Greene
* Director July 23, 1996
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Herman Johnson, CPA
* Director July 23, 1996
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David R. Jones
* Director July 23, 1996
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M. Moran Weston, Ph.D.
*BY /s/ Thomas L. Clark, Jr.
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Thomas L. Clark, Jr.
Attorney-in-Fact**
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** By authority of power of attorney previously filed with the Company's
Registration Statement on June 7, 1996.
EXHIBIT 99.1
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[LOGO] CARVER FEDERAL SAVINGS BANK
MAIN OFFICE: 75 West 125th St., New York, NY 10027-4512
(212) 876-4747 - FAX (212) 666-8360
Dear Fellow Stockholder:
DON'T BE CONFUSED BY THE LETTER YOU RECEIVED FROM MARK LILIEN
You may have recently received a letter from a Mr. Mark Lilien dated
July 1, 1996, a stockholder of Carver Federal Savings Bank. We believe Mr.
Lilien's letter is confusing with respect to a number of items. In addition, we
believe his letter demonstrates that Mr. Lilien has some fundamental
misunderstandings concerning our Bank and the holding company proposal being
voted on at the Annual Meeting.
In response to Mr. Lilien, and in an effort to correct some of his what
the Board believes are certain misunderstandings of Mr. Lilien, we are mailing
this letter to you and we ask that you take a few minutes to review it.
THE BANK BELIEVES LILIEN DOES NOT UNDERSTAND THAT WITHOUT A HOLDING COMPANY
THERE CAN BE NO REPURCHASE PROGRAM
The most obvious benefit of forming a holding company is the ability to
repurchase shares of the holding company common stock within certain regulatory
limits. The Bank can not repurchase its own shares without taking the risk of
triggering potentially severe adverse tax consequences, but the holding company
may do so after the holding company reorganization is completed, which may not
occur until after both shareholder and regulatory approval is received. At that
time, the Board will evaluate the holding company's financial condition, the
value of its outstanding stock and the available strategic alternatives for
enhancing shareholder value. As you can see, the formation of the holding
company is a necessary precondition to the adoption of a share repurchase
program, without risking potentially severe tax consequences.
THE BANK BELIEVES LILIEN DOES NOT UNDERSTAND THAT DIRECT STOCK SALES WOULD
DILUTE THE HOLDINGS OF EXISTING STOCKHOLDERS
Mr. Lilien claims that "Carver forces its shareholders to pay
commissions when buying stock." The Bank has already sold stock to the public
directly without brokerage commissions when it converted from mutual to stock
form. THE BANK BELIEVES THAT ANY FURTHER DIRECT SALE OF STOCK TO THE PUBLIC
WOULD BE DILUTIVE TO EXISTING SHAREHOLDERS AND CONSIDERS THIS TO BE A
SIGNIFICANT FACTOR IN EVALUATING A DIRECT SALES PROGRAM.
THE BANK BELIEVES LILIEN DOES NOT UNDERSTAND THE REQUIREMENTS FOR A REGULAR
DIVIDEND
Mr. Lilien asks "Shouldn't the holding company have a definite plan to
pay dividends...?" Before a program of regular dividends can be implemented,
management must have evidence of a stable earnings stream to allow for
continuation of the program for the foreseeable future. The Bank has recently
taken steps that we believe over time will lead to stable and enhanced earnings
trends, as described in the Annual Report, and will consider a policy of paying
regular dividends after the Bank experiences a consistent improvement in
earnings over time. In addition, any dividend policy must fit within an overall
plan for uses of capital which may include a repurchase program. THE BOARD
BELIEVES THAT IT WOULD BE RECKLESS FOR THE BOARD TO ESTABLISH A DIVIDEND POLICY
AT THIS TIME GIVEN THE BOARD'S DESIRE TO HAVE THE BANK EXPERIENCE AN ENHANCED
EARNINGS TREND AND TO BE BETTER POSITIONED TO EVALUATE ALL ALTERNATIVES FOR USES
OF CAPITAL, WHICH THE BOARD BELIEVES IT WILL BE BEST ABLE TO DO AFTER COMPLETION
OF THE HOLDING COMPANY REORGANIZATION.
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THE BANK BELIEVES LILIEN DOES NOT UNDERSTAND WHY MANY CORPORATIONS ARE ORGANIZED
UNDER DELAWARE LAW
Mr. Lilien asks "Has the management picked Delaware because
shareholders have fewer rights than in New York?" The answer is unequivocally
NO! The Board's intention is to organize under a body of law that it believes
would be well understood by, and fair to, all shareholders. It is also the
Board's intention to have the flexibility necessary to act in the best interests
of all shareholders and protect them from potentially coercive self-serving
actions by shareholders interested in only their own personal benefits. AFTER A
CAREFUL COMPARISON OF NEW YORK AND DELAWARE LAW THE BOARD CHOSE DELAWARE LAW
BECAUSE IT BELIEVES DELAWARE IS WIDELY RECOGNIZED AS HAVING THE MOST
COMPREHENSIVE AND WELL CONSIDERED BODY OF CORPORATE LAW IN THE COUNTRY AND
SERVES AS A MODEL FOR MANY OTHER STATES.
THE BANK BELIEVES LILIEN DOES NOT UNDERSTAND THE HOLDING COMPANY'S BYLAWS
Mr. Lilien states "Right now, our Bylaws may be changed by a majority
vote of the shares. But in the new company ("Bancorp"), Bylaw changes made by
shareholders may be repealed by the Board of Directors. Is this fair?" The
answer is no, but then again, Mr. Lilien is not accurately describing the
holding company's Charter and Bylaws. Consistent with Delaware law, these
documents provide that SHAREHOLDERS CAN ALWAYS OVERRIDE BYLAWS MADE BY THE
BOARD.
IS LILIEN AS QUALIFIED TO SERVE ON THE BOARD OF DIRECTORS AS THE BOARD'S
NOMINEES?
Over the past 18 months the Board analyzed its own composition and that
of management and implemented a significant restructuring. In 1995 Thomas L.
Clark, Jr. was brought in as President and Chief Executive Officer and in 1996
David Jones became Chairman of the Board and Linda Dunham and the former Mayor
of New York City David Dinkins were added as directors. Mr. Jones, Ms. Dunham
and Mr. Dinkins each have outstanding qualifications to serve as directors,
including both a breadth and depth of organizational experience, strong ties to
the communities the Bank serves and relationships with many of the Bank's
customers and potential customers, and each has been nominated for reelection to
the Board. THE BOARD DOES NOT BELIEVE THAT MR. LILIEN HAS PROVIDED SUFFICIENT
EVIDENCE TO MAKE A DETERMINATION AS TO WHETHER HE IS AS QUALIFIED TO SERVE AS A
DIRECTOR OF THE BANK AS MR. JONES, MS. DUNHAM OR MR. DINKINS.
WE URGE YOU TO STAY THE COURSE
Although we appreciate Mr. Lilien's concerns regarding our historical
financial performance, we are proud of our recent accomplishments in expanding
the Bank's lending activities, restructuring the Bank's balance sheet and
participating in community-based revitalization projects as more fully described
in the Bank's Annual Report to Shareholders. This has all been done consistent
with the Bank's mission as an urban community development bank serving the
banking needs of ethnic communities in the greater New York City metropolitan
area. We assure you that our efforts remain focused on increasing profitability
in order to enhance stockholder value. THE BOARD OF DIRECTORS UNANIMOUSLY
RECOMMENDS A VOTE FOR APPROVAL OF EACH OF THE PROPOSALS TO BE CONSIDERED AT THE
ANNUAL MEETING. We are confident that your vote in favor of each Proposal will
help us achieve our goals and enhance the value of your investment.
On behalf of your Board of Directors
Sincerely,
Thomas L. Clark, Jr.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
