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Registration No. 333-_____
Filed June 30, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ANCHOR BANCORP WISCONSIN INC.
(Exact Name of Registrant as specified in its Articles of Incorporation)
Wisconsin 39-1726871
(State of incorporation) (IRS Employer Identification No.)
25 West Main Street
Madison, Wisconsin 53703
(Address of principal executive offices, including zip code)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
Copies to:
Gerard L. Hawkins, Esq.
Douglas J. Timmerman, President Kenneth B. Tabach, Esq.
Anchor BanCorp Wisconsin Inc. Elias, Matz, Tiernan & Herrick L.L.P.
25 West Main Street 734 15th Street, N.W.
Madisonl, Wisconsin 53703 Washington, D.C. 20005
(608) 252-8700 (202) 347-0300
- --------------------------------------
(Name, address, and telephone number
of agent for service)
Page 1 of 14 pages
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(2) Offering Price(2) Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.10 300,000 $18.625 $5,687,500 $1,553.33
- ---------------------------------------------------------------------------------------------------------------------
</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 the
Anchor BanCorp Wisconsin Inc. ("Company" or "Registrant") 1999 Employee Stock
Purchase Plan ("Plan") as a result of a stock split, stock dividend or similar
adjustment of the outstanding common stock, $.10 par value per share ("Common
Stock"), of the Company.
(2) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) promulgated under the Securities Act of 1933, as
amended ("Securities Act"). The Proposed Maximum Offering Price Per Share is
equal to the average of the high and low sales price of a share of Common Stock
on June 23, 1999 as reported on the Nasdaq National Market System.
--------------------------
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. ss. 230.462.
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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 Annual Report on Form 10-K of the Company for the year
ended March 30, 1999;
(b) All reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Company's Annual Report on 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-A filed
with the Commission on March 30, 1992;
(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.
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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 180.0850 to 180.0859 of the Wisconsin Business Corporation Law
relate to indemnification and insurance. These provisions provide that a
Wisconsin corporation shall indemnify a director or officer, to the extent he or
she has been successful on the merits or otherwise in the defense of a
proceeding, for all reasonable expenses incurred in the proceeding if the
director or officer was a party because he or she is a director or officer of
the corporation. In all other cases, a Wisconsin corporation shall indemnify a
director or officer against liability incurred by a director or officer in a
proceeding to which the director or officer was a party because he or she is a
director or officer of the corporation, unless liability was incurred because
the director or officer breached or failed to perform a duty he or she owes to
the corporation and the breach or failure to perform constitutes any of the
following: (1) a wilful failure to deal fairly with the corporation or its
stockholders in connection with a matter in which the director or officer has a
material conflict of interest, (2) a violation of criminal law, unless the
director or officer had reasonable cause to believe his or her conduct was
lawful or no reasonable cause to believe his or her conduct was unlawful, (3) a
transaction from which the director or officer derived an improper personal
profit, or (4) wilful misconduct.
Article VI of the Registrant's Bylaws provides as follows:
6.1 CERTAIN DEFINITIONS. The following terms shall have the meanings
set forth below for purposes of this Article VI.
(1) "Director or officer" means any of the following:
(a) An individual who is or was a director or officer of the
Corporation.
(b) An individual who, while a director or officer of the Corporation,
is or was serving at the Corporation's request as a director, officer, partner,
trustee, member of any government or decision-making committee, employee or
agent of another corporation, foreign or domestic, partnership, joint venture,
trust, employee benefit plan or other enterprise.
(c) An individual who, while a director or officer of the Corporation,
is or was serving an employee benefit plan of the Corporation because his duties
to the Corporation also impose duties on, or otherwise involve services by, the
person to the plan or to participants in or beneficiaries of the plan.
(d) Unless the context requires otherwise, the estate or personal
representative of a director or officer.
(2) "Expenses" include fees, costs, charges, disbursements, attorneys
fees and any other expenses incurred in connection with a proceeding.
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(3) "Liability" includes the obligation to pay a judgment, settlement,
penalty, assessment, forfeiture or fine, including an excise tax assessed with
respect to an employee benefit plan, and reasonable expenses.
(4) "Party" includes an individual who was or is, or who is threatened
to be made, a named defendant or respondent in a proceeding.
(5) "Proceeding" means any threatened, pending or completed civil,
criminal, administrative or investigative action, suit, arbitration or other
proceeding, whether formal or informal and including any appeal therefrom, which
involves foreign, federal, state or local law and which is brought by or in the
right of the Corporation or by any other person.
6.2 RIGHT TO INDEMNIFICATION.
(a) Upon written request of a director or officer and to the fullest
extent authorized by the Wisconsin Business 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 broader
indemnification rights than was permitted prior thereto), the Corporation shall
promptly indemnify and hold harmless a director or officer against any and all
liabilities and expenses actually incurred in connection with a proceeding to
which any such person shall have become subject because he is a director or
officer of the Corporation or arising from his status as such, provided that the
Corporation may not indemnify any director or officer against any liabilities or
expenses unless it is determined by or on behalf of the Corporation that the
director or officer did not breach or fail to perform a duty he owes to the
Corporation which constitutes conduct under Section 180.0851(2)(a)1, 2, 3 or 4
of the Wisconsin Business Corporation Law, and further provided that (except as
provided in Section 6.3 below concerning suits to enforce rights to
indemnification or advancement of expenses) the Corporation shall not indemnify
any such director or officer in connection with a proceeding, or part thereof,
which was initiated by such director or officer unless such proceeding was
authorized by the Board of Directors of the Corporation.
(b) The determination by or on behalf of the Corporation whether a
director or officer is entitled to indemnification under Section 6.2 (a) hereof
shall be made by a majority vote of a quorum of the Board of Directors
consisting of directors not at the time parties to the same or related
proceedings, or if such a quorum cannot be obtained, by majority vote of a
committee duly appointed by the Board of Directors, including directors who are
parties to the same or related proceedings, and consisting solely of two or more
directors not at the time parties to the same or related proceedings. If the
required determination cannot be made in the foregoing manner, it shall be made
by independent legal counsel to the Corporation selected by majority vote of the
Board of Directors, including directors who are parties to the same or related
proceedings. The termination of a proceeding by judgment, order, settlement or
conviction, or upon a plea of no contest or an equivalent plea, does not, by
itself, create a presumption that indemnification of the director or officer is
not required by this Article VI.
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(c) Indemnification under this Article VI is not required if the
director or officer has previously received indemnification or allowance of
expenses from any person, including the Corporation, in connection with the same
proceeding.
6.3 ADVANCEMENT OF EXPENSES. Expenses incurred by a director or officer
who is a party to a proceeding shall be paid or reimbursed by the Corporation in
advance of the final disposition of such proceeding as such expenses are
incurred if the director or officer submits a written request therefor to the
Corporation and provides the Corporation with (1) a written affirmation of his
good faith belief that he has not breached or failed to perform his duties to
the Corporation and (2) a written undertaking, executed personally or on his
behalf, to repay the allowance and, if required by the Corporation, to pay
reasonable interest on the allowance to the extent that indemnification is not
required hereunder or not ordered by a court under the Wisconsin Business
Corporation Law. Such undertaking shall be an unlimited general obligation of
the director or officer and may be accepted without reference to his ability to
repay the allowance and may be secured or unsecured.
6.4 PROCEDURE FOR INDEMNIFICATION. The right to indemnification or
advances under this Article VI shall be enforceable by the director or officer
in any court of competent jurisdiction if the Corporation denies his request
therefor, in whole or in part, or if no disposition thereof is made within 60
days from receipt by the Corporation of a written demand therefor. Such persons'
expenses incurred in connection with successfully establishing his or her right
to indemnification, in whole or in part, in any such proceeding also shall be
indemnified by the Corporation. It shall be a defense to any such proceeding
(other than a proceeding brought to enforce a claim for the advancement of
expenses under Section 6.3 of this Article VI where the required undertaking has
been received by the Corporation) that the Corporation has determined in the
manner set forth in Section 6.2(b) hereof that the claimant breached or failed
to perform a duty he owes to the Corporation which constitutes conduct under
Section 180.0851(2)(a) 1, 2, 3 or 4 of the Wisconsin Business Corporation Law.
6.5 SETTLEMENT. The Corporation shall not be obligated to reimburse the
costs of any settlement to which it has not previously agreed in writing. If in
any proceeding within the scope of Section 6.2 of this Article VI the person to
be indemnified shall have unreasonably failed to enter into a settlement thereof
offered or assented to by the opposing party or parties in such proceeding and
which is acceptable to the Corporation, then, notwithstanding any other
provision hereof, the indemnification obligation of the Corporation to such
person in connection with such proceeding shall not exceed the total of the
amount at which settlement could have been made and the expenses incurred by
such person prior to the time such settlement could reasonably have been
effected.
6.6 SUBSEQUENT AMENDMENT. No amendment or repeal of this Article VI or
of relevant provisions of applicable law shall affect or diminish in any way the
right of any director or officer to indemnification under the provisions hereof
with respect to any proceeding arising out of, or relating to, any actions,
transactions or facts occurring prior to the final adoption of such amendment or
repeal.
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6.7 OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION.
(a) The indemnification provided by this Article VI shall not be deemed
exclusive of any other rights to which a director or officer seeking
indemnification may be entitled under the Articles of Incorporation or Bylaws, a
written agreement between the director or officer and the Corporation, a
resolution of the Board of Directors or a resolution, after notice, adopted by a
majority vote of all of the Corporation's voting shares then issued and
outstanding, provided that the Corporation may not indemnify a director or
officer or permit a director or officer to retain any advancement of expenses
unless it is determined by or on behalf of the Corporation that the director or
officer did not breach or fail to perform a duty he owes to the Corporation
which constitutes conduct under Section 180.0851(2)(a), 1, 2, 3 or 4 of the
Wisconsin Business Corporation Law. A director or officer who is a party to the
same or related proceeding for which indemnification or advancement of expenses
is sought may not participate in a determination under this Section 6.7.
(b) All rights to indemnification under this Article VI shall be deemed
to be a contract between the Corporation and each director or officer and this
Article VI shall be binding upon any successor corporation to the Corporation,
whether by way of acquisition, merger, consolidation or otherwise.
(c) If this Article VI or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director or officer against any liabilities and
expenses to the fullest extent permitted by any applicable portion of this
Article VI that shall not have been invalidated and to the fullest extent
permitted by the Wisconsin Business Corporation Law.
6.8 INSURANCE. The Corporation may purchase and maintain insurance on
behalf of a director or officer against liability asserted against or incurred
by him in his capacity as a director or officer or arising from his status as
such, regardless whether the Corporation is required or authorized to indemnify
or advance expenses to such director or officer under this Article VI.
6.9 EMPLOYEES AND AGENTS. The Corporation may, but need not, to the
extent authorized from time to time by the Board of Directors by general or
specific action or by contract, grant rights to indemnification, and to the
advancement of expenses, to any employee or agent of the Corporation who is not
a director or officer to the fullest extent of the provisions of this Article VI
and may impose such conditions and limitations thereon as the Board of Directors
deems appropriate.
In addition, certain employee benefit plans of the Company include
provisions providing for indemnification of the administrators of such plans.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable since no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
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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 PAGE
4 Common Stock Certificate (1)
5 Opinion of Elias, Matz, Tiernan & Herrick L.L.P. E-1
as to the legality of the securities
23.1 Consent of Ernst & Young L.L.P. E-3
23.2 Consent of Elias, Matz, Tiernan & Herrick L.L.P. --
(contained in the opinion included as Exhibit 5)
24 Power of attorney for any subsequent --
amendments is included in the signature page
99 1999 Stock Employee Purchase Plan (2)
- -----------------
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 (Commission File No. 33-46536) filed with the Commission on March 19, 1992.
(2) Incorporated by reference from the Company's Definitive Proxy Statement for
the 1999 Annual Meeting of Stockholders dated June 25, 1999.
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, (ii) to reflect
in the prospectus any facts or events arising after the effective
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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, 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, 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 and
is, therefore, unenforceable. In the event that a claim for indemnification
against 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 questions whether such indemnification by it is against public
policy expressed in the Securities 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 the city of Madison, State of Wisconsin, on the 30th day of June
1999.
ANCHOR BANCORP WISCONSIN INC.
By: /s/ Douglas J. Timmerman
-----------------------------------
Douglas J. Timmerman, 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 Douglas J. Timmerman his 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/ Douglas J. Timmerman June 30, 1999
- -----------------------------
Douglas J. Timmerman
Director, President and
Chief Executive Officer
(Principal Executive Officer)
/s/ Michael W. Helser June 30, 1999
- ---------------------------------
Michael W. Helser
Treasurer and
Chief Financial Officer
(Principal Accounting Officer)
- --------------------------------- June __, 1999
Holly Cremer Berkenstadt
Director
- --------------------------------- June __, 1999
Richard A. Bergstrom
Director
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- --------------------------------- June __, 1999
Donald D. Kropidlowski
Director
/s/ Greg M. Larson June 30, 1999
- ---------------------------------
Greg M. Larson
Director
/s/ Pat Richter
- --------------------------------- June 30, 1999
Pat Richter
Director
/s/ Bruce A. Robertson June 30, 1999
- ---------------------------------
Bruce A. Robertson
Director
<PAGE>
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
June 30, 1999
Board of Directors
Anchor Bancorp Wisconsin Inc.
25 West Main Street
Madison, Wisconsin 53703
Re: Registration Statement on Form S-8
Gentlemen:
We are special counsel to Anchor Bancorp Wisconsin Inc., a Wisconsin
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 (the "Act"), of a Registration Statement on Form S-8
(the "Registration Statement"), relating to the registration of up to 300,000
shares of common stock, par value $0.10 per share ("Common Stock"), to be
issued pursuant to the Corporation's 1999 Employee Stock Purchase Plan (the
"Plan") upon the exercise of options granted to employees under the Plan
(referred to as "Option Rights"). The Registration Statement also registers
an indeterminate number of additional shares which may be necessary under the
Plan to adjust the number of shares reserved thereby for issuance as the
result of a stock split, stock dividend or similar adjustment of the
outstanding Common Stock of the Corporation. We have been requested by the
Corporation to furnish an opinion to be included as an exhibit to the
Registration Statement.
For this purpose, we have reviewed the Registration Statement and
related Prospectus, the Articles of Incorporation and Bylaws of the
Corporation, the Plan, a specimen stock certificate evidencing the Common
Stock of the Corporation and such other corporate records and documents as we
have deemed appropriate. 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 relevant as a basis for this opinion. In
addition, we have assumed, without independent verification, the genuineness
of all signatures and the authenticity of all documents furnished to us and
the 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 this opinion.
<PAGE>
Board of Directors
June 30, 1999
Page 2
For purposes of this opinion, we have also assumed that (i) the
shares of Common Stock issuable pursuant to Option Rights granted under the
terms of the Plan will continue to be validly authorized on the dates the
Common Stock is issued pursuant to the Option Rights; (ii) on the dates the
Option Rights are exercised, the Option Rights granted under the terms of the
Plan 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) the Option Rights are
exercised in accordance with their terms and the exercise price therefor is
paid in accordance with the terms thereof; (iv) no change occurs in
applicable law or the pertinent facts; and (v) the provisions of "blue sky"
and other securities laws as may be applicable will 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 Plan, when issued and sold pursuant to the
Plan and upon receipt of the consideration required thereby, will be legally
issued, fully paid and non-assessable shares of Common Stock of the
Corporation.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P
By: /s/ Kenneth B. Tabach
--------------------------------
Kenneth B. Tabach, a Partner
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1999 Employee Stock Purchase Plan of our report dated
April 30, 1999, with respect to the consolidated financial statements of Anchor
BanCorp Wisconsin Inc. included in its Annual Report (Form 10-K) for the year
ended March 31, 1999, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Milwaukee, Wisconsin
June 24, 1999
