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Registration No. 333-_____
Filed January 31, 2000
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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ESB Financial Corporation
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(Exact Name of Registrant as specified in its Articles of Incorporation)
Pennsylvania 25-1659846
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(State of incorporation) (IRS Employer Identification No.)
600 Lawrence Avenue
Ellwood City, Pennsylvania 16117
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(Address of principal executive offices, including zip code)
ESB Financial Corporation Retirement Savings Plan
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(Full Title of the Plan)
Charlotte A. Zuschlag
President and Chief Executive Officer
ESB Financial Corporation
600 Lawrence Avenue
Ellwood City, Pennsylvania 16117
(412) 758-5584
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(Name, address and telephone number of agent for service)
Copies to:
Kenneth B. Tabach, Esq.
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, D.C. 20005
(202) 347-0300
Index to Exhibits is located on page 8.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(3) Offering Price(3) Fee
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<S> <C> <C> <C> <C>
Common Stock, par 40,000(2) $11.95 $478,000 $126.19
value $.01
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</TABLE>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant
to ESB Financial Corporation Retirement Savings Plan (the "Plan") as a
result of a stock split, stock dividend or similar adjustment of the
outstanding Common Stock of ESB Financial Corporation (the "Company" or
the "Registrant").
(2) Represents an estimate of such presently undeterminable number of
shares as may be purchased with employee contributions pursuant to the
Plan. In addition, pursuant to rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the Plan.
(3) Estimated solely for the purpose of calculating the registration fee,
which has been calculated pursuant to Rule 457(c). the Proposed Maximum
Offering Price Per Share is equal to the closing sales price of the
Common Stock on the Nasdaq National Market System on January 28, 2000.
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This Registration Statement shall become effective automatically upon
the date of filing in accordance with Section 8(a) of the Securities Act and 17
C.F.R. Section 230.462.
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PART I
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended ("Securities
Act"), and the Note to Part I on Form S-8.
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 year ended
December 31, 1998.
(b) All reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), since the end of the fiscal year covered by
the Form 10-K referred to in clause (a) above.
(c) The description of the Common Stock of the Company contained
in the Company's Registration Statement on Form 8-B filed with
the Commission on June 13, 1991.
(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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable since the Company's Common Stock is registered under
Section 12 of the Exchange Act.
ITEM. 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 9 of the Registrant's Amended and Restated Articles of
Incorporation provides as follows:
ARTICLE 9. INDEMNIFICATION, ETC. OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS.
A. PERSONAL LIABILITY OF DIRECTORS. A director of the Corporation
shall not be personally liable for monetary damages for any action taken, or any
failure to taken any action, as a director except to the extent that by law a
director's liability for monetary damages may not be limited.
B. INDEMNIFICATION. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, including actions by or in the
right of the Corporation, 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, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines, excise taxes and amounts
paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding to the full extent permissible under
Pennsylvania law.
C. ADVANCEMENT OF EXPENSES. Reasonable expenses incurred by a
director, officer, or employee or agent of the Corporation in defending a civil
or criminal action, suit or proceeding described in Article 9.B may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding 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.
D. OTHER RIGHTS. The indemnification and advancement of expenses
provided by or pursuant to this Article 9 shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any insurance or other agreement, vote of stockholders or
directors or otherwise, both as to actions in their official capacity and as to
actions in another capacity while holding an office, and shall continue as to a
person who has ceased
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to be a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such person.
E. INSURANCE. The Corporation shall have the power 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, partnership, joint venture, trust, or other enterprise, against any
liability asserted against him 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 him against such liability under the provisions of this
Article 9.
F. SECURITY FUND; INDEMNITY AGREEMENTS. By action of the Board of
Directors (notwithstanding their interest in the transaction), the Corporation
may create and fund a trust fund or fund of any nature, and may enter into
agreements with its officers, directors, employees and agents for the purpose of
securing or insuring in any manner its obligation to indemnify or advance
expenses provided for in this Article 9.
G. MODIFICATION. The duties of the Corporation to indemnify and
to advance expenses to any person as provided in this Article 9 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 9, and no amendment or
termination of any trust or other fund created pursuant to Article 9.F hereof,
shall alter to the detriment of such person the right of such person to the
advancement of expenses or indemnification related to a claim based on an act or
failure to act which took place prior to such amendment, repeal or termination.
H. PROCEEDINGS INITIATED BY INDEMNIFIED PERSONS. Notwithstanding
any other provision of this Article 9, the Corporation shall not indemnify a
director, officer, employee or agent for any liability incurred in an action,
suit or proceeding initiated by (which shall not be deemed to include
counter-claims or affirmative defenses) or participated in as an intervenor or
amicus curiae by the person seeking indemnification unless such initiation of or
participation in the action, suit or proceeding is authorized, either before or
after its commencement, by the affirmative vote of a majority of the directors
then in office.
Sections 1741 to 1747 of the Pennsylvania Business Corporation Law
provide as follows with respect to indemnification:
1741 THIRD-PARTY ACTIONS.--Unless otherwise restricted in its
bylaws, a business corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that he is or was a representative of the corporation, or is
or was serving at the request of the corporation as a representative of another
domestic or foreign corporation for profit or not-for-profit, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
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fees), judgements, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with the action or proceeding if he 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. The termination of
any action or proceeding by judgement, order, settlement or conviction or upon a
plea of nolo contendere or its equivalent shall not of itself create a
presumption that the person did not act in good faith and in a manner that he
reasonably believed to be in, or not opposed to, the best interests of the
corporation and, with respect to any criminal proceeding, had reasonable cause
to believe that his conduct was unlawful.
1742 DERIVATIVE AND CORPORATE ACTIONS.--Unless otherwise restricted
in its bylaws, a business corporation shall have power to indemnify any person
who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action by or in the right of the corporation to procure a
judgement in its favor by reason of the fact that he is or was a representative
of the corporation or is or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of the action if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation. Indemnification shall not be made under this
section in respect of any claim, issue or matter as to which the person has been
adjudged to be liable to the corporation unless and only to the extent that the
court of common pleas of the judicial district embracing the county in which the
registered office of the corporation is located or the court in which the action
was brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the person is fairly
and reasonably entitled to indemnity for the expenses that the court of common
pleas or other court deems proper.
1743 MANDATORY INDEMNIFICATION.--To the extent that a
representative of a business corporation has been successful on the merits or
otherwise in defense of any action or proceeding referred to in Section 1741
(relating to third-party actions) or 1742 (relating to derivative and corporate
actions) or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorney fees) actually and reasonably
incurred by him in connection therewith.
1744 PROCEDURE FOR EFFECTING INDEMNIFICATION.--Unless ordered by a
court, any indemnification under Section 1741 (relating to third-party actions)
or 1742 (relating to derivative and corporate actions) shall be made by the
business corporation only as authorized in the specific case upon a
determination that indemnification of the representative is proper in the
circumstances because he has met the applicable standard of conduct set forth in
those sections. The 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 action or
proceeding;
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(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.
1745 ADVANCING EXPENSES.--Expenses (including attorneys' fees)
incurred in defending any action or proceeding referred to in this subchapter
may be paid by a business corporation in advance of the final disposition of the
action or proceeding upon receipt of an undertaking by or on behalf of the
representative to repay the amount if it is ultimately determined that he is not
entitled to be indemnified by the corporation as authorized in this subchapter
or otherwise.
1746 SUPPLEMENTARY COVERAGE.--(a) General rule.--The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other sections of this subchapter shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding that office. Section 1728 (relating to
interested directors or officers; quorum) and in, the case of a registered
corporation, section 2538 (relating to approval of transactions with interested
shareholders) shall be applicable to any bylaw, contract or transaction
authorized by the directors under this section. A corporation may create a fund
of any nature, which may, but need not be, under the control of a trustee, or
otherwise secure or insure in any manner its indemnification obligations,
whether arising under or pursuant to this section or otherwise.
(b) When indemnification is not to be made.--Indemnification
pursuant to subsection (a) shall not be made in any case where that act or
failure to act giving rise to the claim for indemnification is determined by a
court to have constituted willful misconduct or recklessness. The articles may
not provide for indemnification in the case of willful misconduct or
recklessness.
(c) Grounds.--Indemnification pursuant to subsection (a) under any
bylaw, agreement, vote of shareholders or directors or otherwise may be granted
for any action taken and may be made whether or not the corporation would have
the power to indemnify the person under any other provision of law except as
provided in this section and whether or not the indemnified liability arises or
arose from any threatened, pending or completed action by or in the right of the
corporation. Such indemnification is declared to be consistent with the public
policy of this Commonwealth.
1747 POWER TO PURCHASE INSURANCE.--Unless otherwise restricted in
its bylaws, a business corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a representative of the
corporation or is or was serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the
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corporation would have the power to indemnify him against that liability under
the provisions of this subchapter. Such insurance is declared to be consistent
with the public policy of this Commonwealth.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable since no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K):
<TABLE>
<CAPTION>
No. Exhibit
--- -------
<S> <C>
4 Specimen Common Stock Certificate.(1)
23 Consent of KPMG LLP
24 Power of attorney for any subsequent amendments
(located in the signature pages of this Registration
Statement).
</TABLE>
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(1) Incorporated by reference from the Company's Registration
Statement on Form S-4 (Commission File No. 33-39219) filed
with the Commission on March 1, 1991.
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 of 1933, (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, 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 in 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
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
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2. That, for the purpose of determining any 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.
4. That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or 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 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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 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 Ellwood City, Pennsylvania, on this 31st day of January 2000.
ESB FINANCIAL CORPORATION
By: /s/ Charlotte A. Zuschlag
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Charlotte A. Zuschlag
President 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 Charlotte A. Zuschlag 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.
/s/ Charlotte A. Zuschlag January 31, 2000
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Charlotte A. Zuschlag
President and Chief Executive Officer
/s/ William B. Salsgiver January 31, 2000
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William B. Salsgiver
Chairman of the Board
/s/ Herbert S. Skuba January 31, 2000
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Herbert S. Skuba
Vice Chairman of the Board
/s/ Charles P. Evanoski January 31, 2000
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Charles P. Evanoski
Senior Vice President and
Chief Financial Officer
(principal financial officer)
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/s/ George William Blank, Jr. January 31, 2000
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George William Blank, Jr.
Director
/s/ Lloyd L. Kildoo January 31, 2000
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Lloyd L. Kildoo
Director
/s/ Charles Delman January 31, 2000
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Charles Delman
Director
/s/ Edmund C. Smith January 31, 2000
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Edmund C. Smith
Director
/s/ Edwin A. Thaner January 31, 2000
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Edwin A. Thaner
Director
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EXHIBIT 23
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of ESB Financial Corporation of our report dated January 20, 1999, with
respect to the consolidated financial statements of ESB Financial Corporation
and subsidiaries as of December 31, 1998 and 1997, and for each of the years in
the three-year period ended December 31, 1998 which report is incorporated by
reference in the Annual Report on Form 10-K filed by ESB Financial Corporation
for the year ended December 31, 1998.
/s/ KPMG LLP
Pittsburgh, Pennsylvania
January 28, 2000
