Registration No. 333-
Filed March 2, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________
ESB Financial Corporation
_____________________________________________________________________________
(Exact Name of Registrant as specified in its Articles of Incorporation)
Pennsylvania 25-1659846
________________________ _________________________________
(State of incorporation) (IRS Employer Identification No.)
600 Lawrence Avenue
Ellwood City, Pennsylvania 16117
_____________________________________________________________________________
(Address of principal executive offices, including zip code)
Options to purchase Common Stock of the Registrant
issued pursuant to an Agreement and Plan of Merger, dated
as of July 21, 1999, as amended, between the Registrant and
SHS Bancorp, Inc. ("SHS"), upon conversion of outstanding options
to purchase Common Stock of SHS issued by SHS under its 1998 Stock Option Plan
_____________________________________________________________________________
(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
_____________________________________________________________________________
(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.
CALCULATION OF REGISTRATION FEE
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
_____________________________________________________________________________
Common Stock, 43,030(2) $7.71 $331,761 $87.59
par value
$.01
_____________________________________________________________________________
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares of Common Stock of ESB
Financial Corporation (the "Company" or the "Registrant") registered
hereby as a result of a stock split, stock dividend or similar
adjustment of the outstanding Common Stock.
(2) Represents the number of shares of Common Stock of the Company reserved
for issuance as a result of the conversion of options to purchase common
stock of SHS Bancorp, Inc. ("SHS") into options to purchase Common Stock
of the Company pursuant to an Agreement and Plan of Reorganization,
dated as of July 21, 1999, between the Company and SHS.
(3) Estimated solely for the purpose of calculating the registration fee,
which has been calculated pursuant to Rule 457(h) promulgated under the
Securities Act of 1933, as amended ("Securities Act"). The Proposed
Maximum Offering Price Per Share is equal to the weighted average
exercise price for the options to purchase shares of Common Stock.
______________________
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*
__________________________
* 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):
No. Exhibit Location
___ _______ ________
4 Specimen Common Stock Certificate. (1)
5 Opinion of Elias, Matz, Tiernan & Herrick
L.L.P. as to the legality of the securities Attached
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P.
(contained in the opinion included as Exhibit 5) --
23.2 Consent of KPMG LLP Attached
24 Power of attorney for any subsequent amendments
(located in the signature pages of this
Registration Statement). --
99 SHS Bancorp, Inc. 1998 Stock Option Plan (2)
____________
(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.
(2) Incorporated by reference from the Registration Statement on Form
S-8 (Commission File No. 333-66881) filed by SHS Bancorp, Inc.
with the Commission on November 6, 1998.
8
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.
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 1st day of
March 2000.
ESB FINANCIAL CORPORATION
By: /s/ Charlotte A. Zuschlag
-------------------------
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 March 1, 2000
- -------------------------
Charlotte A. Zuschlag
President and Chief Executive Officer
/s/ William B. Salsgiver March 1, 2000
- ------------------------
William B. Salsgiver
Chairman of the Board
/s/ Herbert S. Skuba March 1, 2000
- --------------------
Herbert S. Skuba
Vice Chairman of the Board
/s/ Charles P. Evanoski March 1, 2000
- -----------------------
Charles P. Evanoski
Senior Vice President and
Chief Financial Officer
(principal financial officer)
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/s/ George William Blank, Jr. March 1, 2000
- -----------------------------
George William Blank, Jr.
Director
/s/ Lloyd L. Kildoo March 1, 2000
- -------------------
Lloyd L. Kildoo
Director
/s/ Charles Delman March 1, 2000
- ------------------
Charles Delman
Director
/s/ Edmund C. Smith March 1, 2000
- -------------------
Edmund C. Smith
Director
/s/ Edwin A. Thaner March 1, 2000
- -------------------
Edwin A. Thaner
Director
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EXHIBIT 5
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
Telephone (202) 347-0300
March 2, 2000
Board of Directors
ESB Financial Corporation
600 Lawrence Avenue
Ellwood City, Pennsylvania 16117
Re: Registration Statement on Form S-8
43,030 Shares of Common Stock
Ladies and Gentlemen:
We have acted as special counsel to ESB Financial Corporation, a
Pennsylvania corporation (the "Corporation"), in connection with the
preparation and filing with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, of a Registration Statement on Form S-
8 (the "Registration Statement"), relating to the registration of up to 43,030
shares of common stock, par value $.01 per share ("Common Stock"), to be
issued upon exercise of options previously granted by SHS Bancorp, Inc.
("SHS") pursuant to its 1998 Stock Option Plan (the "Plan"), and converted
into options to purchase Common Stock of the Corporation (the "Options") upon
the acquisition of SHS by the Corporation on February 10, 2000 pursuant to an
Agreement and Plan of Reorganization, dated as of July 21, 1999, between the
Corporation and SHS (the "Agreement"). The Registration Statement also
registers an indeterminate number of additional shares which may be necessary
to adjust the number of shares registered thereby for issuance as the result
of a stock split, stock dividend or similar adjustment of the outstanding
Common Stock. We have been requested to furnish an opinion to be included as
an exhibit to the Registration Statement.
In this regard, we have reviewed the Registration Statement and
Prospectus for the Plan, the Articles of Incorporation and Bylaws of the
Corporation, the Plan, the Agreement, a specimen stock certificate evidencing
the Common Stock of the Corporation and such other corporate records and
documents as we have deemed appropriate for the purposes of this opinion. We
are relying upon the originals, or copies certified or otherwise identified to
our satisfaction, of the corporate records of the Corporation and such other
instruments, certificates and representations of public officials, officers
and representatives of the Corporation as we have deemed applicable or
relevant as a basis for the opinions set forth below. In addition, we have
assumed, without independent verification, the genuineness of all signatures
and the authenticity of all documents furnished to us and the
Board of Directors
March 2, 2000
Page 2
conformance in all respects of copies to originals. Furthermore, we have made
such factual inquiries and reviewed such laws as we determined to be relevant
for the purposes of this opinion.
For purposes of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to the exercise of the Options will continue
to be validly authorized on the dates the Common Stock is issued pursuant to
the exercise of the Options; (ii) on the dates the Options are exercised, the
Options will constitute valid, legal and binding obligations of the
Corporation and will (subject to applicable bankruptcy, moratorium,
insolvency, reorganization and other laws and legal principles affecting the
enforceability of creditors' rights generally) be enforceable as to the
Corporation in accordance with their terms; (iii) no change occurs in
applicable law or the pertinent facts; and (iv) the provisions of "blue sky"
and other securities laws as may be applicable have been complied with to the
extent required.
Based on the foregoing, and subject to the assumptions set forth
herein, we are of the opinion as of the date hereof that the shares of Common
Stock to be issued pursuant to the exercise of the Options, upon receipt by
the Corporation of the consideration required thereby, will be legally issued,
fully paid and non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Kenneth B. Tabach
---------------------------------
Kenneth B. Tabach, a Partner
EXHIBIT 23.2
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
March 2, 2000
