SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CITIZENS BANCORP
(Exact name of Registrant as specified in its charter)
Indiana 35-2017500
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
60 South Main Street
P.O. Box 635
Frankfort, Indiana 47461
(Address of Principal Executive Offices) (Zip Code)
CITIZENS BANCORP STOCK OPTION PLAN
(Full title of the plan)
FRED W. CARTER Copy to:
President CLAUDIA V. SWHIER, ESQ.
Citizens Bancorp Barnes & Thornburg
60 South Main Street 11 S. Meridian Street
P.O. Box 635 Indianapolis, Indiana 46204
Frankfort, Indiana 47461
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(765) 654-8533
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of maximum maximum Amount
securities Amount offering aggregate of
to be to be price per offering registration
registered registered share(1) price(1) fee
Common Stock,
without par value 105,800 $15.37812 $1,627,005 $479.97
================================================================================
(1) Estimated solely to determine the registration fee and based on the option
price of stock options already granted under the Plan and on the weighted
average of the bid and asked prices per share of Common Stock of Citizens
Bancorp on August 7, 1998, as to shares not yet subject to options granted
under the Plan, pursuant to Rule 457(c) and (h).
(2) Any additional shares of Common Stock to be issued as a result of stock
dividends, stock splits, or similar transactions shall be covered by this
Registration Statement as provided in Rule 416.
Page 1 of 11
Exhibit Index on Page 9
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Document(s) containing information specified by Part I of the form of
Registration Statement on Form S-8, promulgated under the Securities Act of
1933, as amended (the "1933 Act"), will be sent or given to participants in the
Citizens Bancorp Stock Option Plan (the "Plan") as specified in Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the 1933 Act. Such document(s) are not being filed with the Commission but
constitute (along with the documents incorporated by reference into this Form
S-8 Registration Statement (the "Registration Statement") pursuant to Item 3 of
Part II hereof), a prospectus that meets the requirements of Section 10(a) of
the 1933 Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
Registration Statement:
(1) The annual report of Citizens Bancorp (the "Registrant") for the year
ended June 30, 1997, filed with the Securities and Exchange Commission on Form
10-K;
(2) The quarterly reports of the Registrant on Form 10-Q for the quarters
ended September 30, 1997, December 31, 1997 and March 31, 1998 and all other
reports filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 (the "1934 Act") by the Registrant since June 30, 1997; and
(3) The description of the capital stock of the Registrant contained in the
Registrant's Registration Statement on Form 8-A, which became effective with the
Commission on November 3, 1997, and all amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the 1934 Act prior to the
filing of a post-effective amendment that indicates that all shares offered
hereby have been sold or that deregisters all shares then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part thereof from the date they are filed.
Item 4. Description of Securities.
Not applicable.
<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 21 of the Indiana Business Corporation Law, as amended (the "BCL"),
grants to each corporation broad powers to indemnify directors, officers,
employees or agents against expenses incurred in certain proceedings if the
conduct in question was found to be in good faith and was reasonably believed to
be in the corporation's best interests. This statute provides, however, that
this indemnification should not be deemed exclusive of any other indemnification
rights provided by the articles of incorporation, by-laws, resolution or other
authorization adopted by a majority vote of the voting shares then issued and
outstanding. Section 10.05 and Article 13 of the Articles of Incorporation of
the Registrant state as follows:
Section 10.05. Limitation of Liability and Reliance on Corporate Records
and Other Information.
Clause 10.051. General Limitation. No Director, member of any committee of
the Board of Directors, or of another committee appointed by the Board, Officer,
employee or agent of the Corporation ("Corporate Person") shall be liable for
any loss or damage if, in taking or omitting to take any action causing such
loss or damage, either (1) such Corporate Person acted (A) in good faith, (B)
with the care an ordinarily prudent person in a like position would have
exercised under similar circumstances, and (C) in a manner such Corporate Person
reasonably believed was in the best interests of the Corporation, or (2) such
Corporate Person's breach of or failure to act in accordance with the standards
of conduct set forth in Clause 10.051(1) above (the "Standards of Conduct") did
not constitute willful misconduct or recklessness.
Clause 10.052. Reliance on Corporate Records and Other Information. Any
"Corporate Person" shall be fully protected, and shall be deemed to have
complied with the Standards of Conduct, in relying in good faith, with respect
to any information contained therein, upon (1) the Corporate Records, or (2)
information, opinions, reports or statements (including financial statements and
other financial data) prepared or presented by (A) one or more other Corporate
Persons whom such Corporate Person reasonably believes to be competent in the
matters presented, (B) legal counsel, public accountants or other persons as to
matters that such Corporate Person reasonably believes are within such person's
professional or expert competence, (C) a committee of the Board of Directors or
other committee appointed by the Board of Directors, of which such Corporate
Person is not a member, if such Corporate Person reasonably believes such
committee of the Board of Directors or such appointed committee merits
confidence, or (D) the Board of Directors, if such Corporate Person is not a
Director and reasonably believes that the Board merits confidence.
<PAGE>
ARTICLE 13
Indemnification
Section 13.01. General. The Corporation shall, to the fullest extent to
which it is empowered to do so by the Act, or any other applicable laws, as from
time to time in effect, 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, whether civil, criminal, administrative or investigative and
whether formal or informal, by reason of the fact that he is or was a Director,
Officer, employee or agent of the Corporation, or who, while serving as such
Director, Officer, employee or agent of the Corporation, is or was serving at
the request of the Corporation as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, whether for profit or not, against
expenses (including counsel fees), judgments, settlements, penalties and fines
(including excise taxes assessed with respect to employee benefit plans)
actually or reasonably incurred by him in accordance with such action, suit or
proceeding, if he acted in good faith and in a manner he reasonably believed, in
the case of conduct in his official capacity, was in the best interests of the
Corporation, and in all other cases, was not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, he
either had reasonable cause to believe his conduct was lawful or no reasonable
cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not meet the prescribed standard of conduct.
Section 13.02. Authorization of Indemnification. To the extent that a
Director, Officer, employee or agent of the Corporation has been successful, on
the merits or otherwise, in the defense of any action, suit or proceeding
referred to in Section 13.01 of this Article, or in the defense of any claim,
issue or matter therein, the Corporation shall indemnify such person against
expenses (including counsel fees) actually and reasonably incurred by such
person in connection therewith. Any other indemnification under Section 13.01 of
this Article (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case, upon a determination that indemnification of
the Director, Officer, employee or agent is permissible in the circumstances
because he has met the applicable standard of conduct. Such determination shall
be made (1) by the Board of Directors by a majority vote of a quorum consisting
of Directors who were not at the time parties to such action, suit or
proceeding; or (2) if a quorum cannot be obtained under subdivision (1), by a
majority vote of a committee duly designated by the Board of Directors (in which
designation Directors who are parties may participate), consisting solely of two
or more Directors not at the time parties to such action, suit or proceeding; or
(3) by special legal counsel: (A) selected by the Board of Directors or its
committee in the manner prescribed in subdivision (1) or (2), or (B) if a quorum
of the Board of Directors cannot be obtained under subdivision (1) and a
committee cannot be designated under subdivision (2), selected by a majority
vote of the full Board of Directors (in which selection Directors who are
parties may participate); or (4) by the Shareholders, but shares owned by or
voted under the control of Directors who are at the time parties to such action,
suit or proceeding may not be voted on the determination.
<PAGE>
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection (3)
to select counsel.
Section 13.03. Good Faith Defined. For purposes of any determination under
Section 13.01 of this Article 13, a person shall be deemed to have acted in good
faith and to have otherwise met the applicable standard of conduct set forth in
Section 13.01 if his action is based on information, opinions, reports, or
statements, including financial statements and other financial data, if prepared
or presented by (1) one or more Officers or employees of the Corporation or
another enterprise whom he reasonably believes to be reliable and competent in
the matters presented; (2) legal counsel, public accountants, appraisers or
other persons as to matters he reasonably believes are within the person's
professional or expert competence; or (3) a committee of the Board of Directors
of the Corporation or another enterprise of which the person is not a member if
he reasonably believes the committee merits confidence. The term "another
enterprise" as used in this Section 13.03 shall mean any other corporation or
any partnership, joint venture, trust, employee benefit plan or other enterprise
of which such person is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent. The provisions of this
Section 13.03 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standards of conduct set forth in Section 13.01 of this Article 13.
Section 13.04. Payment of Expenses in Advance. Expenses incurred in
connection with any civil or criminal action, suit or proceeding may be paid for
or reimbursed by the Corporation in advance of the final disposition of such
action, suit or proceeding, as authorized in the specific case in the same
manner described in Section 13.02 of this Article, upon receipt of a written
affirmation of the Director, Officer, employee or agent's good faith belief that
he has met the standard of conduct described in Section 13.01 of this Article
and upon receipt of a written undertaking by or on behalf of the Director,
Officer, employee or agent to repay such amount if it shall ultimately be
determined that he did not meet the standard of conduct set forth in this
Article 13, and a determination is made that the facts then known to those
making the determination would not preclude indemnification under this Article
13.
Section 13.05. Provisions Not Exclusive. The indemnification provided by
this Article shall not be deemed exclusive of any other rights to which a person
seeking indemnification may be entitled under these Articles of Incorporation,
the Corporation's Code of By-Laws, any resolution of the Board of Directors or
Shareholders, any other authorization, whenever adopted, after notice, by a
majority vote of all Voting Stock then outstanding, or any contract, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
Director, Officer, employee or agent, and shall inure to the benefit of the
heirs, executors and administrators of such a person.
<PAGE>
Section 13.06. Vested Right to Indemnification. The right of any individual
to indemnification under this Article shall vest at the time of occurrence or
performance of any event, act or omission giving rise to any action, suit or
proceeding of the nature referred to in Section 13.01 of this Article 13 and,
once vested, shall not later be impaired as a result of any amendment, repeal,
alteration or other modification of any or all of these provisions.
Notwithstanding the foregoing, the indemnification afforded under this Article
shall be applicable to all alleged prior acts or omissions of any individual
seeking indemnification hereunder, regardless of the fact that such alleged acts
or omissions may have occurred prior to the adoption of this Article. To the
extent such prior acts or omissions cannot be deemed to be covered by this
Article 13, the right of any individual to indemnification shall be governed by
the indemnification provisions in effect at the time of such prior acts or
omissions.
Section 13.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, Officer, employee or
agent of the Corporation, or who is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against or incurred by the
individual in that capacity or arising from the individual's status as a
Director, Officer, employee or agent, whether or not the Corporation would have
power to indemnify the individual against the same liability under this Article.
Section 13.08. Additional Definitions. For purposes of this Article,
references to the "Corporation" shall include any domestic or foreign
predecessor entity of the Corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the transaction.
For purposes of this Article, serving an employee benefit plan at the
request of the Corporation shall include any service as a Director, Officer,
employee or agent of the Corporation which imposes duties on, or involves
services by such Director, Officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries. A person who acted in
good faith and in a manner he reasonably believed to be in the best interests of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interest of the Corporation"
referred to in this Article.
For purposes of this Article, "party" includes any individual who is or was
a plaintiff, defendant or respondent in any action, suit or proceeding, or who
is threatened to be made a named defendant or respondent in any action, suit or
proceeding.
For purposes of this Article, "official capacity", when used with respect
to a Director, shall mean the office of director of the Corporation; and when
used with respect to an individual other than a Director, shall mean the office
in the Corporation held by the Officer or the employment or agency relationship
undertaken by the employee or agent on behalf of the Corporation. "Official
capacity" does not include service for any other foreign or domestic corporation
or any partnership, joint venture, trust, employee benefit plan, or other
enterprise, whether for profit or not.
<PAGE>
Section 13.09. Payments a Business Expense. Any payments made to any
indemnified party under this Article under any other right to indemnification
shall be deemed to be an ordinary and necessary business expense of the
Corporation, and payment thereof shall not subject any person responsible for
the payment, or the Board of Directors, to any action for corporate waste or to
any similar action.
Under the Act, an Indiana corporation may 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 enterprise, against any
liability asserted against him or incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of the Act.
The Registrant has purchased insurance designed to protect and indemnify the
Registrant and its officers and directors in case they are required to pay any
amounts arising from certain claims, including claims under the Securities Act
of 1933, which might be made against the officers and directors by reason of any
actual or alleged act, error, omission, misstatement, misleading statement,
neglect, or breach of duty while acting in their respective capacities as
officers or directors of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits furnished with this registration statement are listed on page
E-1.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement (i) to include any prospectus required by Section
10(a)(3) of the 1933 Act; (ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement (provided that any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
<PAGE>
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement); (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement; provided, however, that clauses
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those clauses is contained in periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the 1934 Act that are
incorporated by reference in the Registration Statement; (2) that, for the
purpose of determining any liability under the 1933 Act, each such
post-effective amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered that remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission, such indemnification is
against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
<PAGE>
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Frankfort, and the State of Indiana, on this 10th day
of August, 1998.
CITIZENS BANCORP
By /s/ Fred W. Carter
--------------------------------------
Fred W. Carter
President and Chief Executive Officer
Each person whose signature appears below hereby constitutes and appoints
Fred W. Carter and Stephen D. Davis, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
under the Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
- --------------------------------------------------------------------------------
(1) Principal Executive Officer:
/s/ Fred W. Carter )
------------------------------ )
Fred W. Carter Chairman of the Board, )
President and Chief )
Executive Officer )
)
)
(2) Principal Financial and )
Accounting Officer: )
)
)
/s/ Stephen D. Davis )
------------------------------ )
Stephen D. Davis Treasurer ) August 10, 1998
)
)
(3) The Board of Directors: )
)
)
/s/ Robert F. Ayres Director )
------------------------------ )
Robert F. Ayres )
)
)
/s/ Fred W. Carter Director )
------------------------------ )
Fred W. Carter )
)
)
<PAGE>
/s/ Perry W. Lewis Director )
------------------------------ )
Perry W. Lewis )
)
)
/s/ John J. Miller Director )
------------------------------ )
John J. Miller )
)
) August 10, 1998
/s/ Billy J. Wray Director )
------------------------------ )
Billy J. Wray )
)
<PAGE>
INDEX TO EXHIBITS
Page No.
In
This
Exhibit No. Description Filing
- --------------------------------------------------------------------------------
4.1 Articles of Incorporation of the Registrant are *
incorporated by reference to Exhibit 3(1) to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-29031).
4.2 By-Laws of the Registrant are incorporated by reference *
to Exhibit 3(2) of the Registrant's Registration
Statement on Form S-1 (Registration No. 333-29031).
5 Opinion of Barnes & Thornburg as to the legality of the
securities being registered.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Barnes & Thornburg (included as part of
Exhibit 5).
24 Power of Attorney (set forth on page S-1 of this
Registration Statement).
(*) Previously filed with the SEC and by this reference incorporated
into this Registration Statement.
[BARNES & THORNBURG LETTERHEAD]
Exhibit 5
August 10, 1998
Citizens Bancorp
60 E. Main Street
Frankfort, Indiana 46041
Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Citizens Bancorp (the
"Corporation"), relating to the offer and sale of 105,800 shares of the Common
Stock, without par value, of the Corporation under the Citizens Bancorp Stock
Option Plan approved by the Corporation's Board of Directors on January 13, 1998
(the "Plan"). In connection with your request, we have made such examination of
the corporate records and proceedings of the Corporation and considered such
questions of law and taken such further action as we deemed necessary or
appropriate to enable us to render this opinion.
Based upon such examination, we are of the opinion that when the Common
Stock has been purchased and the purchase price therefor has been paid as
contemplated by the Plan and as described in the Registration Statement, as the
same may be amended, and when the Corporation has complied with the Securities
Act of 1933, as amended, and with the securities laws of the State of Indiana
and all other jurisdictions in which the Common Stock is to be sold pursuant to
the exercise of stock options granted under the Plan, the Common Stock will be
legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, however, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Barnes & Thornburg
BARNES & THORNBURG
/jm
ERNST & YOUNG LLP o One Indiana Square o Phone: 317 681 7000
Suite 3400 Fax 317 681 7216
Indianapolis, Indiana 46204-2094
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Citizens Bancorp Stock Option Plan of our report dated
August 22, 1997, with respect to the consolidated financial statements of
Citizens Savings Bank of Frankfort and subsidiary included in the Annual Report
(Form 10-K) of Citizens Bancorp for the year ended June 30, 1997, filed with the
Securities and Exchange Commission.
Indianapolis, Indiana
August 10, 1998
/s/ Ernst & Young, LLP
Ernst & Young, LLP
Ernst & Young LLP is a member of Ernst & Young International, Ltd.
