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As filed with the Securities and Exchange Commission on October 27, 2000
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
EFC BANCORP, INC.
(exact name of registrant as specified in its certificate of incorporation)
DELAWARE 6036 36-4193304
(state or other jurisdiction of (Primary Standard (IRS Employer
incorporation or organization) Classification Code Number) Identification No.)
1695 LARKIN AVENUE
ELGIN, ILLINOIS 60123
(847) 741-3900
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
EFC BANCORP, INC. 2000 STOCK OPTION PLAN
(Full Title of the Plan)
----------------------------------------
COPIES TO:
BARRETT J. O'CONNOR LORI M. BERESFORD, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER THOMAS P. HUTTON, ESQ.
EFC BANCORP, INC. MULDOON, MURPHY & FAUCETTE LLP
1695 LARKIN AVENUE 5101 WISCONSIN AVENUE, N.W.
ELGIN, ILLINOIS 60123 WASHINGTON, DC 20016
(847) 741-3900 (202) 362-0840
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
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 /
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Title of each Class of Amount to be Proposed Purchase Estimated Aggregate Registration
Securities to be Registered Registered(1) Price Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock 254,256
$.01 par Value Shares (2) $9.375(3) $2,386,088 $630
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the EFC Bancorp, Inc. 2000 Stock Option Plan (the "Plan") as the result of
a stock split, stock dividend or similar adjustment of the outstanding
Common Stock of EFC Bancorp, Inc., pursuant to 17 C.F.R. Section
230.416(a).
(2) Represents the total number of shares currently reserved or available for
issuance as options pursuant to the Plan.
(3) Weighted average price determined by the average exercise price of $9.50
per share at which options for 19,500 shares under the Plan have been
granted to date and by $9.375 the market value of the Common Stock on
October 23, 2000, as determined by the average of the high and low bid
prices reported on the American Stock Exchange as reported in the Wall
Street Journal, for 234,756 shares for which options have not yet been
granted under the Plan.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SECTION 230.462.
Number of Pages 14
Exhibit Index begins on Page 10
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EFC BANCORP, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The document containing the information for the EFC Bancorp, Inc.
(the "Company" or the "Registrant") 2000 Stock Option Plan (the "Plan") required
by Part I of the Registration Statement will be sent or given to the
participants in the Plan as specified by Rule 428(b)(1). The document is not
filed with the Securities and Exchange Commission (the "SEC") either as a part
of this Registration Statement or as a prospectus or prospectus supplement
pursuant to Rule 424 in reliance on Rule 428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are incorporated
by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, (File No. 001-13605), which includes the consolidated
statements of financial condition of EFC Bancorp, Inc. and Subsidiaries as of
December 31, 1999 and 1998, 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 December 31, 1999, together with the related notes and
the report of the independent auditors, filed with the SEC on March 21, 2000.
(b) The Form 10-Q reports filed by the Company for the fiscal quarters
ended March 31 and June 30, 2000 (File No. 001-13605), filed with the SEC on May
12 and August 11, 2000, respectively.
(c) The description of the Company's Common Stock contained in the
Registrant's Form 8-A (File No. 001-13605), as filed with the SEC, pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and
Rule 12b-15 promulgated thereunder, on November 14, 1997 and declared effective
on February 12, 1998, as incorporated by reference from the Company's
Registration Statement on Form S-1 (SEC File No. 333-38637) as amended and
declared effective on December 15, 1997.
(d) All documents filed by the Registrant pursuant to Sections 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, 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 REGISTRATION STATEMENT TO THE
EXTENT THAT A STATEMENT CONTAINED HEREIN, OR IN ANY OTHER SUBSEQUENTLY FILED
DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE
HEREIN, 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.
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ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
The validity of the Common Stock offered hereby has been passed upon by
Muldoon, Murphy & Faucette LLP, Washington, D.C., special counsel to the
Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held harmless
against liability to the fullest extent permissible by the general corporation
law of Delaware as it currently exists or as it may be amended, provided any
such amendment provides broader indemnification provisions than currently exist.
This indemnification applies to the Board of Directors who administer the Plan.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of the
Registrant's Certificate of Incorporation provide as follows:
TENTH:
-----
A. Each person who was or is made a party or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a Director or an Officer 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 of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent or in any other capacity while serving as a Director, Officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article TENTH
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a Director or Officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, services to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so
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advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections A and B of this Article TENTH shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a Director, Officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in full by
the Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expenses of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that; and (ii) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses conferred in
this Article TENTH shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Corporation's Certificate
of Incorporation, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect itself and
any Director, Officer, employee or agent of the Corporation or subsidiary or
Affiliate or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the Board
of Directors, grant rights to indemnification and to the advancement of expenses
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
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ELEVENTH:
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A Director of this Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability: (i) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the Delaware General Corporation Law; or (iv)
for any transaction from which the Director derived an improper personal
benefit. If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
Directors, then the liability of a Director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a Director of
the Corporation existing at the time of such repeal or modification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. LIST OF EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-K):
4 Stock Certificate of EFC Bancorp, Inc.1
5 Opinion of Muldoon, Murphy & Faucette LLP as to the legality of
the Common Stock to be issued.
10 EFC Bancorp, Inc. 2000 Stock Option Plan.2
23.1 Consent of KPMG LLP.
23.2 Consent of Muldoon, Murphy & Faucette LLP (contained in the
opinion included in Exhibit 5).
24 Power of Attorney (located on the signature page).
--------------------------
1 Incorporated herein by reference from Exhibit 3.1 contained in the Company's
Registration Statement on Form S-1 (SEC No. 333-38637), as amended, and
declared effective on December 15, 1997.
2 Incorporated herein by reference from Appendix A to the Company's Proxy
Statement on Form DEF 14A (SEC 001-13605) filed with the SEC on March 23,
2000.
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ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) Include any Prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the Prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the Registration Statement. Notwithstanding
the foregoing, 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 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 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement; and
(iii) Include any additional or changed material information on the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement unless the
information required by (i) and (ii) is contained in periodic
reports filed by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference
into this Registration Statement.
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new Registration Statement of the
securities offered, and the offering of the securities at that time
to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's or the Plan's annual report
pursuant to Section 13(a) or 15(d) of the Exchange 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a trustee, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
trustee, 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
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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
Pursuant to the requirements of the Securities Act, EFC Bancorp, Inc.
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 Elgin, State of Illinois, on October 17, 2000.
EFC BANCORP, INC.
By: /s/ Barrett J. O'Connor
-------------------------------------
Barrett J. O'Connor
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. O'Connor) constitutes and appoints Barrett J. O'Connor and
Mr. O'Connor hereby constitutes and appoints James J. Kovac, as the true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him (or her) and in his name, place and stead, in any and
all capacities to sign any or all amendments to the Form S-8 Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the U.S. Securities and Exchange Commission,
respectively, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and things requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Name Title Date
---- ----- ----
/s/ Barrett J. O'Connor President and October 17, 2000
-------------------------- Chief Executive Officer
Barrett J. O'Connor (principal executive officer)
/s/ James J. Kovac Executive Vice President, Chief October 17, 2000
-------------------------- Financial Officer and Director
James J. Kovac (principal accounting
and financial officer)
/s/ John J. Brittain Chairman of the Board of October 17, 2000
-------------------------- Directors
John J. Brittain
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/s/ James A. Alpeter Director October 17, 2000
-------------------------
James A. Alpeter
/s/ Thomas I. Anderson Director October 17, 2000
-------------------------
Thomas I. Anderson
/s/ Leo M. Flanagan, Jr. Director October 17, 2000
-------------------------
Leo M. Flanagan, Jr.
/s/ Ralph W. Helm, Jr. Director October 17, 2000
-------------------------
Ralph W. Helm, Jr.
/s/ Vincent C. Norton Director October 17, 2000
-------------------------
Vincent C. Norton
/s/ Peter A. Traeger Director October 17, 2000
-------------------------
Peter A. Traeger
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EXHIBIT INDEX
Sequentially
Numbered
Page
Exhibit No. Description Method of Filing Location
------------ ----------------------- ------------------------------------------------ ----------
<S> <C> <C> <C>
4 Stock Certificate of Incorporated herein by reference from the Exhibit --
EFC Bancorp, Inc. 3.1 of the Registrant's Registration Statement on
Form S-1 (SEC No. 333-38637) filed with
the SEC on November 14, 1997 and
declared effective on December 15, 1997.
10 EFC Bancorp, Inc. Incorporated herein by reference from Appendix --
2000 Stock Option to the Proxy Statement on form DEF 14A (SEC
Plan No. 001-13605) filed with the SEC on March 23,
2000.
5 Opinion of Muldoon, Filed herewith. 12
Murphy & Faucette,
LLP
23.1 Consent of Muldoon, Contained in Exhibit 5. --
Murphy & Facuette,
LLP
23.2 Consent of KPMG Filed herewith. 14
LLP
24 Power of Attorney Located on the signature page. --
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