As filed with the Securities and
Exchange Commission on June 29, 1999 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
_______________
RFS Bancorp, Inc.
(Exact name of registrant as specified in its charter)
U.S.A. 04-3444818
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
310 Broadway
Revere, MA 02151
(781)284-7777
(Address of Principal Executive Offices)
_______________
RFS Bancorp, Inc. 1999 Stock Option Plan
RFS Bancorp, Inc. 1999 Recognition and Retention Plan
(Full title of the Plans)
_______________
Mr. James J. McCarthy
President and Chief Executive Officer
Revere Federal Savings
310 Broadway
Revere, MA 02151
(781) 284-7777
Copy to:
Richard A. Schaberg, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, N.W. Suite 800
Washington, D.C. 20006
(202) 347-8400
(Name and address, telephone number including area code, of agent for service)
_______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Title of Securities to be Registered Registered(1) Price Per Share(2) Aggregate Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 61,425 shares $8.125 $499,078.125 $139.00
=================================================================================================================================
<FN>
<F1> Based on 43,875 shares of common stock of RFS Bancorp, Inc. (the
"Company") reserved for issuance upon exercise of options granted
pursuant to the RFS Bancorp, Inc. 1999 Stock Option Plan, and 17,550
shares authorized for awards under the RFS Bancorp, Inc. 1999
Recognition and Retention Plan. ("Plans"). In addition to such
shares, this registration statement also covers an undetermined
number of shares of common stock of the Company that, by reason of
certain events specified in the Plans, may become issuable upon
exercise of options through the use of certain anti-dilution
provisions.
<F2> Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to
which a total of 61,425 restricted shares and shares that may be
acquired upon exercise of options granted in the future are deemed to
be offered at $8.125 per share, the average of the daily bid and ask
prices of common stock of the Company on the OTC Bulletin Board at
the close of trading on June 25, 1999.
</FN>
</TABLE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part
I will be sent or given to employees as specified by Rule 428(b)(1). Such
document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents and the documents incorporated by
reference in this registration statement pursuant to Item 3 of Part II of
this form, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended
("Securities Act").
PART II
Item 3. Incorporation of Documents by Reference.
The following documents and information heretofore filed with the
Commission by the Registrant (File No. 000-25047) are incorporated by
reference in this registration statement:
(1) the description of the Registrant's common stock (the "Common
Stock") contained in the Registrant's Registration Statement on
Form SB-2, and all amendments thereto, dated September 9, 1998,
filed with the Commission pursuant to the Securities Exchange
Act of 1934, as amended ("Exchange Act");
(2) the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended September 30, 1998, which was filed with the
Commission pursuant to the Exchange Act; and
(3) the Registrant's Quarterly Reports on Form 10-QSB for the
quarters ended December 31, 1998 and March 31, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the date
of the termination of the offering of the Common Stock offered hereby shall
be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents. Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any document which is or is deemed to be
incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
12 C.F.R. Section 545.121 of the Regulations issued by the Office of
Thrift Supervision ("OTS Regulations") sets forth the ability of a federal
savings & loan association to indemnify its officers and directors. This
section provides that a savings association shall indemnify any person
against whom an action is brought or threatened because that person is or
was a director, officer or employee of the association for: (1) any amount
for which that person become liable under a judgment if such action; and
(2) reasonable costs and expenses, including reasonable attorney's fees
paid or incurred by that person in defending or settling such action, or in
enforcing his or her rights under such section if he or she attains a
favorable judgment in such enforcement action.
Indemnification shall be made to such individuals if (1) final
judgements on the merits is in the individual's favor; or (2) in case of
(i) settlement; (ii) final judgement against the individual, or (iii) final
judgement in the individual's favor, other than on the merits, if a
majority of the disinterested directors determine that the individual was
acting in good faith within the scope of his or her employment or authority
as he or she could have reasonable perceived it under the circumstances and
for a purpose her or she could reasonably have believed under the
circumstances was in the best interests of the savings association or its
members. The section also provides that no indemnification may be made
unless the association gives the OTS 60 days notice of its intention to
make such indemnification.
In addition to providing indemnification, under OTS Regulations, a
savings association may obtain insurance to protect in and its officers,
directors and employees from potential losses arising from claims against
any of the for alleged wrongful acts, or wrongful acts, committed in their
capacity as directors, officers or employees. However, the savings
association may not obtain insurance which provides for payment of losses
of any person incurred as a consequence of his or her willful or criminal
misconduct.
Section 545.121 of OTS regulations is subject to and qualified by 12
U.S.C [SECTION] 1821(k) which provides in general that a director or
officer of an insured depository institution may be held personally liable
for monetary damages by, on behalf of, or at the request or direction of
the Federal Deposit Insurance Corporation in certain circumstances.
Article XIII of the Registrant's Bylaws provide that it shall
indemnify any person against whom an action is brought or threatened
because that person is or was a director, officer or employee of the
Registrant for: (a) any amount for which that person becomes liable under a
judgment in such action; and (b) reasonable costs and expenses, including
reasonable attorneys' fees, actually paid or incurred by that person in
defending or settling such action, or in enforcing his or her rights under
the indemnification section of the bylaws if he or she attains a favorable
judgment in such enforcement action. These Bylaw sections mirror OTS
regulations as set forth above.
The Bank is party to an Employment Agreement with each of Mr. James
J. McCarthy, Mr. Anthony J. Patti and Ms. Judith Tenaglia ("Senior
Executives"). These Employment Agreements provide for the Company to
indemnify the Senior Executives to the fullest extent permitted under
federal law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 RFS Bancorp, Inc. 1999 Stock Option Plan.*
4.2 RFS Bancorp, Inc. 1999 Recognition and Retention Plan.*
4.3 Form of Stock Certificate of RFS Bancorp, Inc.**
4.4 Amended and Restated Bylaws of RFS Bancorp, Inc.**
5.1 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as
to the legality of the securities being registered.
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5.1
hereof).
23.2 Consent of Shatswell, MacLeod &Company, P.C.
[FN]
<F*> Incorporated by reference to the Registrant's Proxy Statement, dated
May 26, 1999, for its Special Meeting of Stockholders to be held on
June 29, 1999, filed with the Commission by the Registrant pursuant
to the Exchange Act.
<F**> Incorporated by reference to the Registrant's Registration Statement
on Form SB-2, dated September 9, 1998, and all amendments thereto,
filed with the Commission pursuant to the Exchange Act.
</FN>
Item 9. Undertakings.
A. Rule 415 offering. 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 the aggregate, the changes in volume and
price represent no more than a 20% 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 paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the registration statement is on
Form S-3 or Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs 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 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 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.
B. Filings incorporating subsequent Exchange Act documents by
reference. The undersigned Registrant hereby undertakes that, for 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, where applicable, each filing of an employee benefit
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.
C. Incorporated annual and quarterly reports. The undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference
in the prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim
financial information required to be presented by Article 3 of Regulation
S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
D. Filing of registration statement on Form S-8. 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Revere, Commonwealth of
Massachusetts on the 29th day of June, 1999.
RFS Bancorp, Inc.
(Registrant)
By: /s/ James J. McCarthy
----------------------------------
James J. McCarthy
President, Chief Executive Officer
and Director
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James J. McCarthy President, Chief Executive Officer June 29, 1999
- ----------------------- (Principal Executive Officer) and
James J. McCarthy Director
/s/ Anthony J. Patti Executive Vice President, Chief June 29, 1999
- ----------------------- Operating Officer (Principal Financial
Anthony J. Patti Officer) and Director
/s/ Arno P. Bommer Chairman of the Board and Director June 29, 1999
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Arno P. Bommer
/s/ John J. Verrengia Director June 29, 1999
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John J. Verrengia
/s/ Ernest F. Becker Director June 29, 1999
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Ernest F. Becker
/s/ Theodore E. Charles Director June 29, 1999
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Theodore E. Charles
/s/ Anthony R. Conte Director June 29, 1999
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Anthony R. Conte
/s/ Carmen R. Mattuchio Director June 29, 1999
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Carmen R. Mattuchio
/s/ J. Michael O'Brien Director June 29, 1999
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J. Michael O'Brien
</TABLE>
Exhibit 5.1
June 29, 1999
RFS Bancorp, Inc
310 Broadway
Revere, Massachusetts 02151
Re: RFS Bancorp, Inc. 1999 Stock Option Plan
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RFS Bancorp, Inc. 1999 Recognition and Retention Plan
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Dear Sirs:
We have acted as counsel for RFS Bancorp, Inc., a federally chartered
corporation (the "Corporation"), in connection with the filing of a
registration statement on Form S-8 under the Securities Act of 1933, as
amended ("Registration Statement") with respect to 61,425 shares of its
common stock, par value $.01 per share (the "Shares"), of which 43,875
shares are authorized but unissued shares ("Original Issue Shares") which
have been reserved for issuance upon the exercise of options granted
pursuant to the RFS Bancorp, Inc. 1999 Stock Option Plan and 17,550 shares
are Original Issue Shares which have been reserved for the grant of
restricted stock awards under the RFS Bancorp, Inc. 1999 Recognition and
Retention Plan (collectively, the "Plans"). In rendering the opinion set
forth below, we do not express any opinion concerning law other than the
federal law of the United States of America.
We have examined originals or copies, certified or otherwise
identified, of such documents, corporate records and other instruments as
we have deemed necessary or advisable for purposes of this opinion. As to
matters of fact, we have examined and relied upon the Plans described above
and, where we have deemed appropriate, representations or certificates of
officers of the Corporation or public officials. We have assumed the
authenticity of all documents submitted to us as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity
to the originals of all documents submitted to us as copies.
Based on the foregoing, we are of the opinion that the Original Issue
Shares that are being registered pursuant to the Registration Statement
have been duly authorized and, when issued and paid for in accordance with
the terms of the Plans, such Original Issue Shares will be validly issued,
fully paid and non-assessable.
In rendering the opinion set forth above, we have not passed upon and
do not purport to pass upon the application of "doing business" or
securities or "blue-sky" laws of any jurisdiction (except federal
securities laws).
This opinion is given solely for the benefit of the Corporation and
purchasers of Shares under the Plans, and no other person or entity is
entitled to rely hereon without express written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to our Firm's name therein.
Very truly yours,
THACHER PROFFITT & WOOD
By: /s/ Richard A. Schaberg
--------------------------------
Richard A. Schaberg
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement on Form S-8 of RFS Bancorp, Inc. of our report dated October 22,
1998, relating to the consolidated balance sheets of Revere Federal Savings
and Loan Association and Subsidiary as of September 30, 1998 and 1997, and
the related consolidated statement of income, changes in equity and cash
flows for each of the years in the three-year period ended September 30,
1998, which report is included in the September 30, 1998 Form 10-KSB of RFS
Bancorp., Inc.
SHATSWELL, MacLEOD & COMPANY, P.C.
West Peabody, Massachuseets
June 28, 1999
