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As filed with the Securities and Exchange Commission on February 26, 1999
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Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
TELEBANC FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 13-3759196
-------- ----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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1111 North Highland Street
Arlington, Virginia 22201-2807
(Address of Principal Executive Offices)
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TeleBanc Financial Corporation
Special Stock Option Plan
(Full Title of the Plan)
----------------------------
Arlen W. Gelbard, Esq.
Executive Vice President and General Counsel
1111 North Highland Street
Arlington, Virginia 22201-2807
(Name and Address of Agent for Service)
(703) 247-3700
--------------
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Ellen C. Grady, Esq.
Shaw Pittman Potts & Trowbridge
1501 Farm Credit Drive
McLean, Virginia 22102
(703) 790-7900
CALCULATION OF REGISTRATION FEE
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<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount Of
Title Of Securities To Amount To Be Aggregate Offering Aggregate Offering Registration
Be Registered Registered Price Per Share Price Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 60,000 shares $4.438(1) $266,280(1) $74.03
per share -----------------------------------------------------------------------------
133,704 shares $6.75(1) $902,502(1) $250.90
-----------------------------------------------------------------------------
48,402 shares $1.3307(1) $64,408(1) $17.91
- ---------------------------------------------------------------------------------------------------------
Total 242,106 shares $342.84
- ---------------------------------------------------------------------------------------------------------
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(1) Computed pursuant to Rule 457(h) under the Securities Act of 1933, as
amended.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which are on file with the Securities and
Exchange Commission (the "Commission"), are incorporated herein by this
reference and made a part hereof:
(a) The Annual Report on Form 10-K of TeleBanc Financial Corporation
(the "Registrant") for the year ended December 31, 1998.
(b) The following reports filed pursuant to Section 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 documents
referred to in (a) above:
None.
(c) The description of the Registrant's Common Stock under the section
entitled "Description of Securities" contained in its Registration
Statement on Form S-2 (Registration No. 333-52871) filed with the
Commission and incorporated by reference into the Registrants'
Registration Statement on Form 8-A filed with the Commission on
July 1, 1998, to register the Common Stock of the Registrant under
Section 12(g) of the Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which de-registers all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The Registrant's General Counsel has given the opinion upon the validity
of the Common Stock being registered under this S-8 Registration Statement. As
of the date of such opinion, the General Counsel was an officer and an employee
of the Registrant, owned 100 shares of Common Stock, and held options to
purchase 45,000 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation law (the "DGCL") provides
that a corporation may limit the liability of each director to the corporation
or its stockholders for monetary damages, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders;
(ii) for acts of omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) in respect of certain unlawful
dividend
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payments or stock redemption or repurchases; and (iv) for any transaction from
which the director derived an improper benefit. The Certificate of Incorporation
of the Registrant provides for the elimination and limitation of the personal
liability of directors of the Registrant for monetary damages to the fullest
extent permitted by the DGCL. Article Eight of the Registrant's Bylaws, entitled
"Indemnification," provides for indemnification of the Registrant's directors,
officers, employees and agents under certain circumstances.
In addition, the Registrant's Certificate of Incorporation provides that
if the DGCL is amended to authorize the further elimination or limitation of a
director, then the liability of the directors of the Registrant shall be
eliminated or limited to the fullest extent permitted by the DGCL, as so
amended. The effect of this provision is to eliminate the right of the
Registrant and its stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages against a director for
breach of the fiduciary duty of care as a director (including breaches resulting
from negligent or grossly negligent behavior) except in the situations described
in clauses (i) through (iv) above. The provision does not limit or eliminate the
rights of the Registrant or any stockholder to seek non-monetary relief such as
an injunction or recission in the event of a breach of a director's duty of
care. In addition, the Certificate of Incorporation provides that the Registrant
shall, to the fullest extent permitted by the DGCL, as amended from time to
time, indemnify each of its currently acting and former directors, officers,
employees and agents.
The Registrant has also obtained officers' and directors' liability
insurance with respect to liabilities arising out of certain matters, including
matters arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Description of Exhibit
------ ----------------------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference herein to Exhibit 3.1(a) of
Amendment No. 1 to the Registrant's Registration Statement on Form
S-2, dated June 22, 1998, File No. 333-52871).
4.2 Specimen certificate evidencing shares of Common Stock of the
Registrant (incorporated by reference herein to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1, File No.
33-76930).
5 Form of opinion of Arlen W. Gelbard, Esquire as to the legality of
the securities being registered (filed herewith).
23.1 Consent of Arlen W. Gelbard, Esquire (filed herewith as part of
Exhibit 5).
23.2 Consent of Arthur Andersen LLP (filed herewith).
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ITEM 9. UNDERTAKINGS.
(a) 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 there) which, individually or in the
aggregate, represents 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 statements;
provided, however, that paragraphs (a)(1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 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 securities which remain unsold at the
termination of the offering.
(b) Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report filed pursuant to Section 13(a) or 15(d) (relating to employers
which have registered stock under the 1933 Act) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. 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 county of Arlington, Virginia, on this 25th day of
February, 1999.
TELEBANC FINANCIAL CORPORATION
(Registrant)
/s/ Mitchell H. Caplan
----------------------
Mitchell H. Caplan
Vice Chairman, Chief Executive Officer and
President
Pursuant to the requirements on the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ Mithcell H. Caplan Vice Chairman of the Board, Chief
- ---------------------------- Executive Officer and President February 25, 1999
Mitchell H. Caplan (Principal Executive Officer)
/s/ Sang Han Controller and Acting Chief Financial
- ---------------------------- Officer (Acting Principal Financial February 25, 1999
Sang Han and Accounting Officer)
/s/ David A. Smilow Chairman of the Board of Directors February 25, 1999
- ----------------------------
David A. Smilow
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<S> <C> <C>
/s/ David DeCamp Director February 25, 1999
- ----------------------------
David DeCamp
/s/ Dean C. Kehler Director February 25, 1999
- ----------------------------
Dean C. Kehler
/s/ Marcia Myerberg Director February 25, 1999
- ----------------------------
Marcia Myerberg
/s/ Steven F. Piaker Director February 25, 1999
- ----------------------------
Steven F. Piaker
/s/ Mark Rollinson Director February 25, 1999
- ----------------------------
Mark Rollinson
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EXHIBITS INDEX
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<CAPTION>
Exhibit
Number Description of Exhibit
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference herein to Exhibit 3.1(a) of
the Registrant's Registration Statement on Form S-2, dated June
22, 1998, File No. 333-52871).
4.2 Specimen certificate evidencing shares of Common Stock of the
Registrant (incorporated by reference herein to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1, dated March 25,
1994, File No. 33-76930).
5 Opinion of Arlen W. Gelbard, Esquire as to the legality of the
securities being registered (filed herewith).
23.1 Consent of Arlen W. Gelbard, Esquire (filed herewith as part of
Exhibit 5).
23.2 Consent of Arthur Andersen LLP (filed herewith).
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EXHIBIT 5
February 26, 1999
Ladies and Gentlemen:
I am general counsel for TeleBanc Financial Corporation, a Delaware
corporation (the "Company"). This opinion letter is furnished in connection with
the registration of 242,106 shares (the "Shares") of the Company's common stock,
par value $.01 per share (the "Common Stock"), pursuant to a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Registration Statement"), which are available for issuance pursuant to and in
accordance with the TeleBanc Financial Corporation Special Stock Option Plan
(the "Stock Option Plan").
Based upon my examination of the originals or copies of such documents,
corporate records, certificates of officers of the Company and such other
instruments as I have deemed necessary, and upon the laws as presently in
effect, I am of the opinion that the Shares of Common Stock have been duly
authorized for issuance by the Company and, upon issuance and delivery in
accordance with the terms of the Stock Option Plan and the applicable stock
option agreements, will be fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Arlen W. Gelbard
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Arlen W. Gelbard, General Counsel
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[ARTHUR ANDERSEN LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 10, 1999
included in TeleBanc Financial Corporation's Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Vienna, Virginia
February 26, 1999
