Registration No. 333
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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KEYSTONE FINANCIAL, INC.
(Exact name of issuer as specified in its charter)
Pennsylvania 23-2289209
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Keystone Plaza, N. Front & Market Streets,
P.O. Box 3660, Harrisburg, Pennsylvania 17105-3660
(Address of Principal Executive Offices) (Zip Code)
1997 STOCK INCENTIVE PLAN
(Full title of the plan)
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Ben G. Rooke, Esquire, Keystone Financial, Inc.
One Keystone Plaza, N. Front & Market Streets,
P.O. Box 3660, Harrisburg, Pennsylvania 17105-3660
(717) 231-5701
(Name, address and telephone number, including area code, of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share* offering price* fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $2.00 par value 145,000 shs. $40.375 $ 5,854,375.00
259,500 shs. $36.40625 9,447,421.88
375,000 shs. $36.3125 13,617,187.50
1,720,500 shs. $33.125 56,991,562.50
---------------- ---------------
2,500,000 shs. $85,910,546.88 $29,624.33
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* Pursuant to Rules 457(h) and 457(c), the offering price with respect to shares
covered by outstanding stock options is based the actual prices at which the
stock options may be exercised, and the offering price of the remainder of the
shares covered by the registration statement is estimated solely for purposes of
calculating the registration fee and is based on the average of the high and low
sale prices for the registrant's Common Stock in the NASDAQ National Market
System on March 31, 1999, as reported in the Wall Street Journal.
===================================================================================================
</TABLE>
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PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the registrant with the Securities and
Exchange Commission (File No. 0-11460) are incorporated by reference in this
Registration Statement:
(a) The registrant's latest annual report on Form 10-K filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"1934 Act");
(b) All other reports filed by the registrant pursuant to
Section 13(a) of the 1934 Act since the end of the fiscal year
covered by the annual report on Form 10-K referred to in paragraph
(a) above; and
(c) The description of the registrant's Common Stock, par
value $2.00 per share (the "Common Stock"), which is contained in the
registrant's Current Report on Form 8-K dated July 7, 1998, including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act subsequent to the filing of the annual report
on Form 10-K referred to in paragraph (a) above and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents, except that the
information included in any document in response to paragraphs (i), (k) or (l)
of Item 402 of Regulation S-K is not incorporated by reference in this
Registration Statement.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
contemporaneously or subsequently filed document which also is or is deemed to
be incorporated by reference in this Registration Statement 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.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
1. Pennsylvania Business Corporation Law. Sections 1741 and 1742 of the
Pennsylvania Business Corporation Law (the "BCL") provide that a business
corporation shall have the power to indemnify any person who was or is a party,
or is threatened to be made a party, to any proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person 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 corporation or other enterprise, against expenses (including
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attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such proceeding, if such
person acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation, and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. In the case of an action by or in the right of the corporation, such
indemnification is limited to expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person has been adjudged to be liable to
the corporation unless, and only to the extent that, a court determines upon
application that, despite the adjudication of liability but in view of all the
circumstances, such person is fairly and reasonably entitled to indemnity for
the expenses that the court deems proper.
BCL Section 1744 provides that, unless ordered by a court, any
indemnification referred to above shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification is
proper in the circumstances because the indemnitee 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 parties to the proceeding; or
(2) if such a quorum is not obtainable, or if obtainable and a
majority vote of a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, BCL Section 1743 provides that to the extent
that a director, officer, employee or agent of a business corporation is
successful on the merits or otherwise in defense of any proceeding referred to
above, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
BCL Section 1745 provides that expenses (including attorneys' fees)
incurred by an officer, director, employee or agent of a business corporation in
defending any proceeding may be paid by the corporation in advance of the final
disposition of the proceeding upon receipt of an undertaking to repay the amount
advanced if it is ultimately determined that the indemnitee is not entitled to
be indemnified by the corporation.
BCL Section 1746 provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, the foregoing provisions is not
exclusive of any other rights to which a person seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders or directors or
otherwise, and that indemnification may be granted under any bylaw, agreement,
vote of shareholders or disinterested directors or otherwise for any action
taken or any failure to take any action whether or not the corporation would
have the power to indemnify the person under any other provision of law and
whether or not the indemnified liability arises or arose from any action by or
in the right of the corporation, provided, however, that no indemnification may
be made in any case where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness.
BCL Section 1747 permits a Pennsylvania business corporation to
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 corporation or other enterprise, against any liability asserted against
such person and 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
the person against such liability under the provisions described above.
2. Indemnification Bylaw. Section 8.01 of the registrant's Bylaws (the
"Indemnification Bylaw") was adopted by the shareholders at their Annual Meeting
held on May 28, 1987 and became effective on that date. Under the
Indemnification Bylaw, except as prohibited by law, every director and officer
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of the registrant is entitled as of right to be indemnified by the registrant
against all expenses and liabilities incurred in connection with any actual or
threatened claim or proceeding, whether civil, criminal, administrative,
investigative or other, whether brought by or in the right of the registrant or
otherwise, in which the director or officer may be involved in any manner, by
reason of his being or having been a director or officer of the registrant or by
reason of the fact that he is or was serving at the request of the registrant as
a director, officer, employee, fiduciary or other representative of another
corporation or other entity. In an action brought by a director or officer
against the registrant, the director or officer is only entitled to
indemnification for expenses in certain circumstances. Each director and officer
is also entitled as of right to have his expenses in defending an action paid in
advance by the registrant prior to final disposition of the action, subject to
any obligation which may be imposed to reimburse the registrant in certain
events. The Indemnification Bylaw establishes a procedure whereby a director or
officer may bring an action against the registrant if a written claim for
indemnification or advancement of expenses is not paid by the registrant in full
within thirty days after the claim has been presented. The director or officer
is also entitled to advancement of expenses in this proceeding. The only defense
to an action to recover a claim for indemnification is that the indemnitee's
conduct was such that under Pennsylvania law the registrant is prohibited from
indemnifying the indemnitee. The only defense to an action to recover payment of
expenses in advance is failure by the indemnitee to make an undertaking to
reimburse the registrant if such an undertaking is required.
The Indemnification Bylaw applies to every action, other than actions
filed prior to January 27, 1987, except that it does not apply to the extent
that Pennsylvania law does not permit its application to any breach or failure
of performance of duty by a director or officer occurring prior to January 27,
1987. Any amendment or repeal of the Indemnification Bylaw will operate
prospectively only and will not affect any action taken, or failure to act, by a
director or officer prior to the adoption of such amendment or repeal.
3. Director and Officer Liability Insurance. The registrant maintains
director and officer liability insurance covering its directors and officers
with respect to liability which they may incur in connection with their serving
as such, which liability could include liability under the Securities Act of
1933. Under the insurance, the registrant is entitled to reimbursement for
amounts as to which the directors and officers are indemnified under the
Indemnification Bylaw. The insurance may also provide certain additional
coverage for the directors and officers against certain liability even though
such liability is not subject to indemnification under the Indemnification
Bylaw.
4. Indemnification Agreements. At their Annual Meeting held on May 28,
1987, the shareholders also approved a proposed form of Indemnification
Agreement to be entered into between the registrant and each of its present and
future directors and such other officers, employees and agents of the registrant
and its subsidiaries as shall be designated from time to time by the Board of
Directors.
The form of agreement provides essentially the same rights to
indemnification against liabilities and expenses as are provided in the
Indemnification Bylaw. In addition, the form of agreement requires the
registrant to either maintain the liability insurance coverage currently in
effect for the benefit of the contractee or to hold the contractee harmless to
the full extent of such coverage.
Further, the form of agreement provides that if the full
indemnification claimed by the contractee may not be paid by the registrant
because prohibited by law and the registrant is jointly liable with the
contractee as to the matter for which indemnification was sought (or would be so
liable if the registrant were joined in such matter), the contractee has a right
to contribution from the registrant for the amount of any expenses and
liabilities incurred by the contractee as to such matter based on the relative
benefits received by the registrant and the contractee from the transaction from
which the liability arose and the relative fault of the registrant (including
the registrant's other directors, officers, employees or agents) and the
contractee in connection with the events which resulted in such expenses or
liability, as well as any other relevant equitable considerations.
Under the form of agreement, a contractee is entitled to the rights to
indemnification for expenses and liability, advancement of expenses and
contribution provided by the agreement notwithstanding any amendment or repeal
of the Indemnification Bylaw. In addition, although a change in law restricting
indemnification rights would automatically restrict the indemnification rights
provided under the Indemnification Bylaw, the form of agreement provides that a
change in law restricting indemnification rights will not affect the rights of a
contractee under the agreement unless the law so requires.
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Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
An Exhibit Index, containing a list of all exhibits filed with this
Registration Statement, is included on page II-9.
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 of 1933 (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;
(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 (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 (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 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 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(h) Filing of Registration Statement on Form S-8.
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 provisions described under Item 6 above, 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 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.
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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 Harrisburg, Pennsylvania, on the 31st day of March, 1999.
KEYSTONE FINANCIAL, INC.
By /s/ Carl L. Campbell
------------------------------
Carl L. Campbell, Chairman
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Carl L. Campbell, Ben G. Rooke, George R.
Barr, Jr. and Donald F. Holt, and each of them, the undersigned's true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for and in the undersigned's name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitutes, may lawfully do or cause to be done by virtue thereof.
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.
Signature Capacity Date
- ---------------------------- --------------------------------- ---------------
/s/ Carl L. Campbell Chairman, Chief Executive Officer March 31, 1999
- ---------------------------- And Director
Carl L. Campbell
/s/ Mark L. Pulaski President, Chief Operating March 31, 1999
- ---------------------------- Officer and Director
Mark L. Pulaski
/s/ Donald F. Holt Executive Vice President, Chief March 31, 1999
- ---------------------------- Financial Officer and Principal
Donald F. Holt Accounting Officer
/s/ A. Joseph Antanavage, Jr. Director March 31, 1999
- -----------------------------
A. Joseph Antanavage, Jr.
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Signature Capacity Date
- ----------------------------- --------------------------------- --------------
/s/ June B. Barry Director March 31, 1999
- -----------------------------
June B. Barry
/s/ George T. Brubaker Director March 31, 1999
- -----------------------------
George T. Brubaker
- ----------------------------- Director March , 1999
Paul I. Detwiler, Jr.
/s/ Donald Devorris Director March 31, 1999
- -----------------------------
Donald Devorris
/s/ Gerald E. Field Director March 31, 1999
- -----------------------------
Gerald E. Field
/s/ Philip C. Herr, II Director March 31, 1999
- -----------------------------
Philip C. Herr, II
/s/ Allan W. Holman, Jr. Director March 31, 1999
- -----------------------------
Allan W. Holman, Jr.
/s/ Richard G. King Director March 31, 1999
- -----------------------------
Richard G. King
/s/ Uzal H. Martz, Jr. Director March 31, 1999
- -----------------------------
Uzal H. Martz, Jr.
- ----------------------------- Director March , 1999
Max A. Messenger
/s/ William L. Miller Director March 31, 1999
- -----------------------------
William L. Miller
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Signature Capacity Date
- ----------------------------- --------------------------------- --------------
/s/ Don A. Rosini Director March 31, 1999
- -----------------------------
Don A. Rosini
/s/ James I. Scheiner Director March 31, 1999
- -----------------------------
James I. Scheiner
- ----------------------------- Director March , 1999
F. Dale Schoeneman
- ----------------------------- Director March , 1999
Molly Dickinson Shepard
/s/ Ronald C. Unterberger Director March 31, 1999
- -----------------------------
Ronald C. Unterberger
- ----------------------------- Director March , 1999
G. William Ward
- ----------------------------- Director March , 1999
Ray L. Wolfe
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KEYSTONE FINANCIAL, INC.
1997 Stock Incentive Plan
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
(Pursuant to Item 601 of Regulation S-K)
Exhibit
No. Description and Method of Filing
- --------------------------------------------------------------------------------
4.1 Restated Articles of Incorporation of the registrant, as amended
through July 29, 1996 (incorporated herein by reference to
Exhibit 4.1 to the registrant's Registration Statement on Form
S-4 No. 333-02065).
4.2 Bylaws of the registrant, as amended to November 19, 1998
(incorporated herein by reference to Exhibit 3.2 to the
registrant's Annual Report on Form 10-K for the year ended
December 31, 1998).
4.3 Keystone Financial, Inc. Series A Junior Participating Preferred
Stock Rights Agreement dated as of June 25, 1990 (incorporated
herein by reference to Exhibit 1 to the registrant's Form 8-A
Registration Statement dated January 25, 1990).
4.4 Amendment No. 1 to Series A Junior Participating Preferred Stock
Rights Agreement dated as of December 20, 1990 (incorporated
herein by reference to Exhibit 2 to the registrant's Form 8
Amendment dated December 20, 1990).
5.1 Opinion of Reed Smith Shaw & McClay LLP as to the legality of
the shares being registered (filed herewith).
23.1 Consent of Reed Smith Shaw & McClay LLP (contained in their
opinion filed herewith as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors (filed
herewith).
23.3 Consent of Beard & Co.,Inc., independent auditors (filed
herewith).
24.1 Power of Attorney, contained on the signature page to this
Registration Statement.
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Exhibit 5.1
REED SMITH SHAW & MCCLAY LLP
Writer's Direct 435 Sixth Avenue
Numbers: Pittsburgh, Pennsylvania 15219-1886
Phone 412-288-3310 Phone: 412-288-3131
Fax 412-288-3063 Fax: 412-288-3063
[email protected]
March 30, 1999
Keystone Financial, Inc.
One Keystone Plaza
North Front and Market Streets
P.O. Box 3660
Harrisburg, PA 17105-3660
Re: Registration Statement on Form S-8
for the 1997 Stock Incentive Plan
Gentlemen:
We have acted as counsel to Keystone Financial, Inc., a Pennsylvania
corporation (the "Corporation"), in connection with the above-captioned
Registration Statement (the "Registration Statement") relating to up to
2,500,000 shares of Common Stock, par value $2.00 per share, of the Corporation
(the "Common Stock") which may be issued under the Corporation's 1997 Stock
Incentive Plan (the "Plan"). Either authorized but unissued or treasury shares
of Common Stock may be issued under the Plan. In rendering our opinion below, we
have assumed that any previously issued shares reacquired by the Corporation and
reissued under the Plan will have been duly authorized, validly issued and fully
paid at the time of their original issuance.
In connection with this opinion, we have examined, among other things:
(1) forms of resolutions adopted by the Board of Directors of
the Corporation on March 27, 1997 and March 25, 1999, adopting the Plan
authorizing the issuance of up to 2,500,000 shares of Common Stock
under the terms and conditions of the Plan and reserving 2,500,000
shares of Common Stock for such purpose;
(2) the Restated Articles of Incorporation and Bylaws of the
Corporation, as amended to date; and
(3) a copy of the Plan as presently in effect.
Based upon the foregoing and upon an examination of such other
documents, corporate proceedings, statutes, decisions and questions of law as we
considered necessary in order to enable us to furnish this opinion, and subject
to the assumption set forth above, we are pleased to advise you that in our
opinion the 2,500,000 shares of Common Stock being registered and which may be
issued by the Corporation under the Plan have been duly authorized, and upon
such issuance in accordance with the provisions of the Plan, such shares will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Prospectus under the
caption "Legal Opinion."
Yours truly,
/s/ Reed Smith Shaw & McClay
REED SMITH SHAW & McCLAY LLP
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CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the 1997 Stock Incentive Plan of Keystone
Financial, Inc. of our report dated January 29, 1999, with respect to the
consolidated financial statements of Keystone Financial, Inc. and subsidiaries
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
Pittsburgh, Pennsylvania
March 29, 1999
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Keystone Financial, Inc. pertaining to its 1997 Stock
Incentive Plan of our report dated February 28, 1997 on our audit of the
consolidated financial statements of Financial Trust Corp and subsidiaries for
the year ended December 31, 1996, which report is included in the Annual Report
on Form 10-K of Keystone Financial, Inc. for the year ended December 31, 1998.
/s/ BEARD & COMPANY, INC.
Reading, Pennsylvania
March 26, 1999
