Registration No. 333-
Filed July 30, 1999
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CFS Bancorp, Inc.
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(Exact Name of Registrant as Specified in its Articles of Incorporation)
Delaware 35-204 2093
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(State of Incorporation) (I.R.S.Employer Identification No.)
707 Ridge Road
Munster, Indiana 46371
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(Address of Principal Executive Offices)
1998 Stock Option Plan
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(Full Title of the Plan)
Copies to:
Thomas F. Prisby Hugh T. Wilkinson, Esq.
Chairman of the Board and Chief Executive Officer Elias, Matz, Tiernan
CFS Bancorp, Inc. & Herrick L.L.P.
707 Ridge Road 734 15th Street, N.W.
Munster, Indiana 46371 Washington, D.C. 20005
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(Name and Address of Agent For Service) (202) 347-0300
(219) 836-5500
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(Telephone Number, Including Area Code, of Agent for Service)
Page 1 of 9 Pages
Index to Exhibits is Located on Page 6
<PAGE>
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Price Registration
Registered Registered(1) Per Share Fee
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Common Stock,
par value
$0.01 1,344,600 $10.00(3) $13,446,000(3) $ 3,737.99
Common Stock,
par value
$0.01 440,775 11.0938(4) $4,889,869(4) $1,359.38
------- ---------- ------------- -----------
Total 1,785,375(2) $18,335,869 $5,097.37
------------ -------------- ------------
------------ -------------- ------------
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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 CFS Bancorp, Inc. (the "Company" or the "Registrant") 1998 Stock
Option Plan (the "Plan") as a result of a stock split, stock dividend or
similar adjustment of the outstanding common stock, $0.01 par value per
share ("Common Stock"), of the Company.
(2) Represents shares currently reserved for issuance pursuant to the Plan.
(3) Estimated solely for the purpose of calculating the registration fee,
which has been calculated pursuant to Rule 457(h) promulgated under the
Securities Act of 1933, as amended ("Securities Act"). The Proposed
Maximum Offering Price Per Share is equal to the weighted average
exercise price for the options to purchase 1,344,600 shares of Common
Stock which are outstanding under the Plan as of the date hereof.
(4) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) promulgated under the Securities Act. The
Proposed Maximum Offering Price Per Share for the 440,775 shares for
which stock options have not been granted under the Plan is equal to
the average of the high and low prices of the Common Stock of the
Company on July 28, 1999 on the Nasdaq Stock Market.
__________________________
This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act of 1933,
as amended, and 17 C.F.R. Section 230.462.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") 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, 1998 filed with the Commission on
March 31, 1999;
(b) All reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the fiscal
year covered by the financial statements in the Annual
Report referred to in clause (a) above;
(c) The description of the Common Stock of the Company contained
in "Description of Capital Stock of the Company" in the
Prospectus included in CFS Bancorp, Inc.'s Registration
Statement on Form S-1 (File No. 333-48689);
(d) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered have
been sold or 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 or is 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.
Item 4. Description of Securities.
Not applicable because the Company's Common Stock is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law sets forth
circumstances under which directors, officers, employees and agents may be
insured or indemnified against liability which they may incur in their
capacity as such. The Certificate of Incorporation and the Bylaws of the
Company provide that the directors, officers, employees and agents of the
Company shall be indemnified to the full extent permitted by law. Such
indemnity shall extend to expenses, including attorney's fees, judgments,
fines and amounts paid in the settlement, prosecution or defense of the
foregoing actions.
Article 10 of the Registrant's Certificate of Incorporation provides as
follows:
Article 10. Indemnification. The Corporation shall indemnify its
directors, officers, employees, agents and former directors, officers,
employees and agents, and any other persons serving at the request of the
Corporation as a director, officer, 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 director, officer, employee, agent or other person
is a party, or is threatened to be made a party, to the full extent permitted
by the General Corporation Law of the State of Delaware, provided, however,
that the Corporation shall not be liable for any amounts which may be due to
any person in connection with a settlement of any action, suit or proceeding
effected without its prior written consent or any action, suit or proceeding
initiated by any person seeking indemnification hereunder without its prior
written consent. The indemnification provided herein (i) shall not be deemed
exclusive of any other right to which any person seeking indemnification may
be entitled under any bylaw, agreement or vote of stockholders or
disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in any other capacity, and (ii) shall
inure to the benefit of the heirs, executors and administrators of any such
person. The Corporation shall have the power, but shall not be obligated, to
purchase and maintain insurance on behalf of any person or persons enumerated
above against any liability asserted against or incurred by them or any of
them arising out of their status as corporate directors, officers, employees,
or agents whether or not the Corporation would have the power to indemnify
them against such liability under the provisions of this Article 10.
Article VI of the Company's Bylaws provides as follows:
6.1 Indemnification. The Corporation shall provide indemnification to
its directors, officers, employees, agents and former directors, officers,
employees and agents and to others in accordance with the Corporation's
Certificate of Incorporation.
6.2 Advancement of Expenses. Reasonable expenses (including attorneys'
fees) incurred by a director, officer or employee of the Corporation in
defending any civil, criminal,
4
administrative or investigative action, suit or proceeding described in
Section 6.1 may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors only upon receipt of an undertaking by or on behalf of such person
to repay such amount if it shall ultimately be determined that the person is
not entitled to be indemnified by the Corporation.
6.3 Other Rights and Remedies. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Corporation's Certificate of
Incorporation, any agreement, vote of stockholders or disinterested directors
or otherwise, both as to actions in their official capacity and as to actions
in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer or employee and shall inure
to the benefit of the heirs, executors and administrators of such person.
6.4 Insurance. Upon resolution passed by the Board of Directors,
the Corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer of employee of the Corporation, or is or
was serving at the request of the corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or other
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 its Certificate of Incorporation or this Article VI.
6.5 Modification. The duties of the Corporation to indemnify and to
advance expenses to a director, officer or employee provided in this
Article VI shall be in the nature of a contract between the Corporation and
each such person, and no amendment or repeal of any provision of this
Article VI shall alter, to the detriment of such person, the right of such
person to the advance of expenses or indemnification related to a claim based
on an act or failure to act which took place prior to such amendment or
repeal.
Item 7. Exemption from Registration Claimed.
Not applicable since no restricted securities will be reoffered or resold
pursuant to this Registration Statement.
5
Item 8. Exhibits.
The following exhibits are filed with this Registration Statement on Form
S-8 (numbering corresponds to Exhibit Table in Item 601 of Regulation S-K):
No. Exhibit Page
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4 Form of Common Stock Certificate* ----
5 Opinion of Elias, Matz, Tiernan & Herrick L.L.P. as to the E-1
legality of the securities
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P. (contained ----
in the opinion included as Exhibit 5)
23.2 Consent of Independent Auditors E-3
24 Power of attorney for any subsequent amendments ----
(located in the signature pages of this Registration
Statement)
99 1998 Stock Option Plan** ----
* Incorporated by reference from the Company's Registration Statement on Form
S-1 as filed on March 26, 1998 (File No. 333-48689).
** Incorporated by reference from the Company's Proxy Statement on Schedule
14A as filed on December 29, 1998 (File No. 000-24611).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities 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. 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
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the aggregate, the changes in volume and price represent no more than 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) 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 (i) and (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 with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the Securities
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.
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act and each filing of the Plan's
annual report pursuant to Section 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.
5. Insofar as indemnification for liabilities arising under the Securities
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 Securities 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 Securities Act and will be governed
by the final adjudication of such issue.
7
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Munster, State of Indiana, on this 21st day of July 1999.
CFS BANCORP, INC.
By:/s/ Thomas F. Prisby
---------------------
Thomas F. Prisby
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby makes, constitutes and appoints Thomas F. Prisby his or her true
and lawful attorney, with full power to sign for such person and in such
person's name and capacity indicated below, and with full power of
substitution any and all amendments to this Registration Statement, hereby
ratifying and confirming such person's signature as it may be signed by said
attorney to any and all amendments.
Name Title Date
- ------------------------- ------------------------------- ------------
/s/ Thomas F. Prisby Chairman of the Board and Chief
- ------------------------- Executive Officer July 21, 1999
Thomas F. Prisby (principal executive officer)
/s/ James W. Prisby
- ------------------------- Director, President and Chief July 22, 1999
James W. Prisby Operating Officer
/s/ John T. Stephens
- ------------------------- Executive Vice President and July 23, 1999
John T. Stephens Chief Financial Officer
(principal financial and accounting
officer)
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Name Title Date
- ------------------------- ------------------ ---------------------
/s/ Sally A. Abbott Director July 22, 1999
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Sally A. Abbott
/s/ Gregory W. Blaine Director July 22, 1999
- -------------------------
Gregory W. Blaine
Director July --, 1999
- -------------------------
Thomas J. Burns
/s/ Gene Diamond Director July 23, 1999
- -------------------------
Gene Diamond
Director and July --, 1999
- ------------------------- Vice Chairman
Daniel P. Ryan
9
Exhibit 5
Opinion of Elias, Matz, Tiernan & Herrick L.L.P.
Exhibit 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
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TIMOTHY B. MATZ Telephone: (202) 347-0300 JEFFREY D. HAAS
STEPHEN M. EGE Facsimile: (202) 347-2172 KEVIN M.HOULIHAN
RAYMOND A. TIERNAN KENNETH B. TABACH
W. MICHAEL HERRICK PATRICIA J. WOHL
GERARD L. HAWKINS FIORELLO J.VICENCIO*
NORMAN B. ANTIN DAVID TEEPLES
JOHN P. SOUKENIK* CRISTIN ZEISLER
GERALD F. HEUPEL, JR. ERIC M. MARION*
JEFFREY A. KOEPPEL DANIEL R. KLEINMAN*
DANIEL P. WEITZEL
PHILIP ROSS BEVAN
HUGH T. WILKINSON
July 30, 1999 OF COUNSEL
ALLIN P.BAXTER
JACK I. ELIAS
SHERYL JONES ALU
*NOT ADMITTED IN D.C.
VIA EDGAR
Board of Directors
CFS Bancorp, Inc.
707 Ridge Road
Munster, Indiana 46371
Re: Registration Statement on Form S-8
1,785,375 Shares of Common Stock
Gentlemen:
We are special counsel to CFS Bancorp, Inc., a Delaware corporation (the
"Corporation"), in connection with the preparation and filing with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, of a Registration Statement on Form S-8 (the "Registration
Statement"), relating to the registration of up to 1,785,375 shares of common
stock, par value $0.01 per share ("Common Stock"), to be issued pursuant to
the Corporation's 1998 Stock Option Plan (the "Plan") upon the exercise of
stock options and/or appreciation rights (referred to as "Option Rights").
The Registration Statement also registers an indeterminate number of
additional shares which may be necessary under the Plan to adjust the number
of shares reserved thereby for issuance as the result of a stock split, stock
dividend or similar adjustment of the outstanding Common Stock of the
Corporation. We have been requested by the Corporation to furnish an
opinion to be included as an exhibit to the Registration Statement.
For this purpose, we have reviewed the Registration Statement and related
Prospectus, the Certificate of Incorporation and Bylaws of the Corporation,
the Plan, a specimen stock certificate evidencing the Common Stock of the
Corporation and such other corporate records and documents
as we have deemed appropriate. We are relying upon the originals, or copies
certified or otherwise identified to our satisfaction, of the corporate
records of the Corporation and such other instruments, certificates and
representations of public officials, officers and representatives of the
Corporation as we have deemed relevant as a basis for this opinion.
In addition, we have assumed, without independent verification, the
genuineness of all signatures and the authenticity of all documents
furnished to us and the conformance in all respects of copies to originals.
Furthermore, we have made such factual inquiries and reviewed such laws as we
determined to be relevant for this opinion.
For purposes of this opinion, we have also assumed that (i) the shares of
Common Stock issuable pursuant to Option Rights granted under the terms of the
Plan will continue to be validly authorized on the dates the Common Stock is
issued pursuant to the Option Rights; (ii) on the dates the Option Rights are
exercised, the Option Rights granted under the terms of the Plan will
constitute valid, legal and binding obligations of the Corporation and will
(subject to applicable bankruptcy, moratorium, insolvency, reorganization and
other laws and legal principles affecting the enforceability of creditors'
rights generally) be enforceable as to the Corporation in accordance with
their terms; (iii) the Option Rights are exercised in accordance with their
terms and the exercise price therefor is paid in accordance with the terms
thereof; (iv) no change occurs in applicable law or the pertinent facts; and
(v) the provisions of "blue sky" and other securities laws as may be
applicable will have been complied with to the extent required.
Based on the foregoing, and subject to the assumptions set forth herein,
we are of the opinion as of the date hereof that the shares of Common Stock to
be issued pursuant to the Plan, when issued and sold pursuant to the Plan and
upon receipt of the consideration required thereby, will be legally issued,
fully paid and non-assessable shares of Common Stock of the Corporation.
We hereby consent to the reference to this firm under the caption "Legal
Opinion" in the Prospectus of the Plan and to the filing of this opinion as
an exhibit to the Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Hugh T. Wilkinson
---------------------
Hugh T. Wilkinson, a Partner
Exhibit 23.2
Consent of Independent Auditors
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1998 Stock Option Plan of CFS Bancorp, Inc. of
our report dated March 3, 1999, with respect to the consolidated financial
statements of CFS Bancorp, Inc. incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1998, filed with the Securities
and Exchange Commission.
/s/Ernst & Young LLP
Chicago, Illinois
July 30, 1999
