As filed with the Securities and Exchange Commission on May 14, 1999
Registration No. 333-69959
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 4
TO THE FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OSWEGO COUNTY BANCORP, INC.
(in organization)
(Name of Small Business Issuer in its to be filed Articles of Incorporation)
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<S> <C> <C>
Delaware 6711 16-1567491
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(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Classification Code Number) Identification No.)
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(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Gregory J. Kreis
President and Chief Executive Officer
44 East Bridge Street
Oswego, New York 13126
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
John P. Soukenik, Esq.
Hugh T. Wilkinson, Esq.
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
12th Floor
Washington, D.C. 20005
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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]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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Amount Proposed Maximum Amount of
Title of each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Share Offering Price Fee
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Common Stock, $.01 par
value per share(1)......... 759,220 shares $10.00 $7,592,200(2) $2,111(3)
Participation Interests.... 95,000 shares $10.00 $950,000 --(3)
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(1) Includes shares of Common Stock to be issued to the Oswego County
Charitable Foundation, a private foundation.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The shares of Oswego County Bancorp, Inc. which may be purchased by
participants in The Oswego County Savings Bank 401(k) plan are included
in the amount shown for common stock. Accordingly, no separate fee is
required for the participation interests. In accordance with Rule 457(h)
of the Securities Act, as amended, the registration fee has been calculated
basis of the maximum number of shares of common stock which could be
on the purchased through utilization of the assets of such plan.
The Registrant hereby amends this Registration Statement on such date
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that the Registration Statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission acting pursuant to said section 8(a)
may determine.
Disclosure alternative used (check one): Alternative 1 Alternative 2 x
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
Compensation Consultant...................................... $ 20,000
SEC filing fees.............................................. 2,500
Department filing fees....................................... 10,000
Nasdaq filing fees .......................................... 1,200
Printing, postage and mailing ............................... 60,000
Legal fees .................................................. 225,000
Blue Sky filing fees and expenses............................ 10,000
Blue Sky legal fees.......................................... 8,000
Investment bankers and expenses.............................. 110,000
Investment bankers counsel................................... 40,000
Accounting fees.............................................. 170,000
Appraiser's fees............................................. 30,000
Conversion agent fees and expenses........................... 11,000
Miscellaneous................................................ 10,000
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Total........................................................ $707,700
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Item 14. 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 of the Company provides 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 9 of the Registrant's Certificate of Incorporation provides as follows:
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
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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
9 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, if required under the Delaware
General Corporation Law, that an advancement of expenses incurred by an
indemnitee in his or her capacity as a Director of Officer (and not in any other
capacity in which service was or is rendered by such indemnitee, including,
without limitation, service 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 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 9 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 9 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 expense 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
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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 9 or
otherwise, shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article 9 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
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 9 with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
Item 15 Recent Sales of Unregistered Securities
Not applicable.
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Item 16. Exhibits and Financial Statements Schedules
The exhibits and financial statement schedules filed as a part of this
Registration Statement are as follows:
(a) List of Exhibits (filed herewith unless otherwise noted)
1.1 *Engagement Letter with Friedman, Billings, Ramsey & Co., Inc.
1.2 *Form of Agency Agreement with Friedman, Billings, Ramsey & Co., Inc.
2.1 *Amended and Restated Plan of Reorganization from Mutual Savings Bank
to Mutual Holding Company and Plan of Stock Issuance.
3.1 *Certificate of Incorporation of Oswego County Bancorp, Inc.
3.2 *Bylaws of Oswego County Bancorp, Inc.
3.3 *Restated New York Organization Certificate of Oswego County Savings
Bank
3.4 *Restated Bylaws of Oswego County Savings Bank
3.5 *Restated Organization Certificate of Oswego County MHC
3.6 *Bylaws of Oswego County MHC
4.1 *Form of Stock Certificate of Oswego County Bancorp, Inc.
4.2 *Form of Stock Certificate of Oswego County Savings Bank
5.0 Opinion of Elias, Matz, Tiernan & Herrick L.L.P. re: legality
8.1 *Opinion of Elias, Matz, Tiernan & Herrick L.L.P. re: federal tax
matters
8.2 *Opinion re: New York tax matters
8.3 *Letter of RP Financial, LC. re: Subscription Rights
23.1 *Consent of Elias, Matz, Tiernan & Herrick L.L.P. (included in Exhibits
5.0 and 8.1, respectively)
23.2 *Consent of KPMG Peat Marwick LLP
23.3 *Consent of RP Financial, LC.
24.0 *Power of Attorney.
27.0 *Financial Data Schedule
99.1 *Appraisal Report of RP Financial, LC., dated April 16, 1999
99.2 *Subscription Order Form and Instructions
99.3 *Additional Solicitation Material
99.4 *Proxy Statement and Form of Proxy
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* Previously filed.
(b) Financial Statement Schedules
All schedules have been omitted as not applicable or not required under
the rules of Regulation S-X.
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Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(a) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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.
The undersigned Registrant hereby undertakes to provide to the
underwriter at the closing specified in the underwriting agreement, certificates
in such denominations and registered in such names as required by the
underwriter to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 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 of 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 of 1933, the
Registrant has duly caused this Form SB-2 Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the State of New
York on May 13, 1999.
Oswego County Bancorp, Inc.
(in organization)
By: /s/ Gregory J. Kreis
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Gregory J. Kreis
President and Chief Executive Officer
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Name Title Date
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<S> <C> <C>
/s/ Gregory Kreis Director, President and May 13, 1999
- ---------------------------- Chief Executive Officer
Gregory J. Kreis
/s/ Gregory Kreis Senior Vice President and May 13, 1999
- ---------------------------- Treasurer
Robert H. Hillick
/s/ Gregory Kreis Director May 13, 1999
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Michael R. Brower
/s/ Gregory Kreis Chairman of the Board May 13, 1999
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Bruce P. Frassinelli
/s/ Gregory Kreis Director May 13, 1999
- ----------------------------
Paul J. Heins
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Name Title Date
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<S> <C> <C>
/s/ Gregory Kreis Director May 13, 1999
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Paul W. Schneible
/s/ Gregory Kreis Director May 13, 1999
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Bernard Shapiro
/s/ Gregory Kreis Director May 13, 1999
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Carl K. Walrath
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* By: Gregory J. Kreis
Attorney-In-Fact
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Exhibit 5.0
LAW OFFICES
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
TIMOTHY B. MATZ 12TH FLOOR KEVIN M. HOULIHAN
STEPHEN M. EGE 734 15TH STREET, N.W. KENNETH B. TABACH
RAYMOND A. TIERNAN WASHINGTON, D.C. 20005 PATRICIA J. WOHL
GERARD L. HAWKINS _______ FIORELLO J. VICENCIO*
NORMAN B. ANTIN DAVID TEEPLES
JOHN P. SOUKENIK* TELEPHONE: (202) 347-0300 CRISTIN ZEISLER
GERALD F. HEUPEL, JR. FACSIMILE: (202) 347-2172 ANDREW ROSENSTEIN
JEFFREY A. KOEPPEL WWW.EMTH.COM ERIC M. MARION*
DANIEL P. WEITZEL DANIEL R. KLEINMAN*
PHILIP ROSS BEVAN -------------------
HUGH T. WILKINSON ALLIN P. BAXTER
JEFFREY D. HAAS JACK I. ELIAS
SHERYL JONES ALU
W. MICHAEL HERRICK
*NOT ADMITTED IN D.C.
May 13, 1999
VIA EDGAR
Board of Directors
Oswego County Bancorp, Inc.
44 East Bridge Street
Oswego, New York 13126
Ladies and Gentlemen:
We have acted as special counsel to Oswego County Bancorp, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission pursuant to the Securities
Act of 1993, as amended, of the Registration Statement on Form SB-2 (the
"Registration Statement"), relating to the issuance of up to 621,575 shares of
the Company's common stock, par value $0.01 per share (the "Common Stock"), in
connection with the reorganization of Oswego County Savings Bank, a New York
chartered mutual savings bank (the "Bank"), into the mutual holding company form
of ownership, whereby the Bank will (i) organize an interim New York stock
savings bank as a wholly owned subsidiary ("Interim One"); (ii) Interim One will
organize an interim New York stock savings bank as a wholly owned subsidiary
("Interim Two"); (iii) Interim One will organize a Delaware stock corporation
("SHC") as a wholly owned subsidiary of Interim One; (iv) the Bank will convert
to stock form and exchange its charter for a New York stock savings bank charter
("Stock-form Bank"); (v) the shares of Interim One will be canceled and its
charter will be exchanged for a New York mutual holding company charter ("MHC");
(vi) Interim Two will merge with and into the Stock-form Bank, with Stock-form
Bank surviving as a subsidiary of the MHC; (vii) depositors of the Bank will
hold certain liquidation and limited voting rights in the MHC; and (viii) the
MHC will transfer all of the outstanding shares of Stock-form Bank to the SHC
(the "Reorganization"). The shares of Common Stock are being offered hereby
pursuant to the Bank's Amended and Restated Plan of Reorganization from Mutual
Savings Bank to Mutual Holding Company and Plan of Stock Issuance (the "Plan of
Reorganization").
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Board of Directors
May 13, 1999
Page 2
In this regard, we have examined (i) the Certificate of Incorporation
and Bylaws of the Company; (ii) resolutions of the Boards of Directors of the
Bank and the Company; (iii) the Plan of Reorganization; and (iv) such other
documents and matters of law as we deemed appropriate for the purposes of this
opinion.
Based on the foregoing, we are of the opinion as of the date hereof that
the Common Stock has been duly and validly authorized, and when issued in
accordance with the terms of the Plan of Reorganization, and upon receipt of the
consideration required thereby, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Company's Registration Statement and to the references to this firm under the
heading "Legal and Tax Opinions" in the Prospectus contained in the Registration
Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ John P. Soukenik
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John P. Soukenik, a Partner
