As filed with the Securities and Exchange Commission on July 21, 1999
- --------------------------------------------------------------------------------
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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FSF FINANCIAL CORP.
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(Exact Name of Registrant as Specified in its Charter)
Minnesota 41-1783064
- ------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
201 Main Street South, Hutchinson, Minnesota 55350-2573
(320) 234-4500
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(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Office)
Mr. Donald A. Glas
Co-Chair and Chief Executive Officer
FSF Financial Corp.
201 Main Street South, Hutchinson, Minnesota 55350-2573
(320) 234-4500
- --------------------------------------------------------------------------------
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Please send copies of all communications to:
Gregory A. Gehlmann, Esq.
MALIZIA SPIDI & FISCH, PC
1301 K Street, N.W., Suite 700 East
Washington, D.C. 20005
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
- ------------------------------------- ---------------- ---------------------------- ------------------------- ----------------------
Title of Shares Amount to be Proposed Maximum Aggregate Proposed Maximum Amount of
to be Registered Registered Price Per Unit (1) Aggregate Offering Price Registration Fee
- ------------------------------------- ---------------- ---------------------------- ------------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock 116,800 $13.8125 $1,613,300 $448.50
- ------------------------------------- ---------------- ---------------------------- ------------------------- ----------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(c) under the Securities Act,
based upon the average of the high and low sales price of the Common
Stock as reported by the Nasdaq National Market on July 19, 1999.
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
PROSPECTUS
116,800 Shares
FSF Financial Corp.
201 Main Street South
Hutchinson, Minnesota 55350-2573
Telephone: 320-234-4500
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Common Stock
----------------------
This prospectus relates to the offer and sale of up to 116,800 shares
of our common stock by selling shareholders listed under the caption "Selling
Shareholders" on page 5. We will not receive any proceeds from sales by the
selling shareholders. Our agreement with the selling shareholders is described
in more detail on page 5.
----------------------
Our common stock is quoted on the Nasdaq National Market under the symbol
"FFHH." On July 19, 1999, the last reported sale price of the common stock on
the Nasdaq National Market was $13.8125 per share. Our shares of common stock
will be offered as discussed under the caption "Plan of Distribution" on page 6.
----------------------
You should carefully read the factors set forth in "Risk Factors" beginning on
page 3.
----------------------
The Securities offered hereby are not deposits or other obligations of a bank
and are not insured by the Federal Deposit Insurance Corporation or any other
insurer or governmental agency.
----------------------
The Securities and Exchange Commission and state regulators have not approved or
disapproved of these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
----------------------
The date of this Prospectus is __________, 1999.
<PAGE>
SPECIAL NOTE OF CAUTION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus (including information included or incorporated by
reference into this prospectus) contains forward-looking statements with respect
to our financial condition, results of operations, plans, objectives, future
performance and business. The words "believes," "expects," "anticipates" or
similar words are intended to identify forward-looking statements. The
forward-looking statements are based on our management's beliefs, assumptions
and expectations of our future economic performance, taking into account the
information currently available to them. Forward-looking statements involve
risks and uncertainties that may cause our actual results, performance or
financial condition to be materially different from the expectations of future
results, performance or financial condition we express or imply in any
forward-looking statements.
Factors that may cause our actual results to differ materially from our
expectations include the following possibilities in addition to those described
in "Risk Factors":
o significant increase in competitive pressures among depository and other
financial institutions;
o changes in the interest rate environment resulting in reduced margins;
o general economic or business conditions, either nationally or in Minnesota,
being less favorable than expected, which would result in, among other
things, a deterioration in credit quality or a reduced demand for credit;
o legislative or regulatory changes adversely affecting the businesses in
which we and our subsidiaries engage;
o changes in the securities markets; and
o changes in the banking industry including the effects of consolidation
resulting from possible mergers of financial institutions.
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<PAGE>
RISK FACTORS
In addition to the other information in this prospectus, you should
carefully consider the following risk factors in deciding whether to invest in
the common stock.
Future changes in interest rates may reduce our profits.
Our ability to make a profit largely depends on our net interest
income, which could be negatively affected by changes in interest rates. Net
interest income is the difference between:
o the interest income we earn on interest-earning assets, such as mortgage
loans and investment securities; and
o the interest expense we pay on our interest-bearing liabilities, such as
deposits and amounts we borrow.
Most of our mortgage loans have rates of interest which are fixed for
the life of the loan and are generally originated for periods of up to 30 years,
while our deposit accounts have significantly shorter periods to maturity.
Because our interest-earning assets generally have fixed rates of interest and
have longer effective maturities than our interest-bearing liabilities, the
yield on our interest-earning assets generally will adjust more slowly to
changes in interest rates than the cost of our interest-bearing liabilities,
which are primarily time deposits. As a result, our net interest income may be
reduced when interest rates increase significantly for long periods of time. In
addition, rising interest rates may reduce our earnings because there may be a
lack of customer demand for loans. Declining interest rates may also reduce our
net interest income if adjustable rate or fixed rate mortgage loans are
refinanced at reduced rates or paid off earlier than expected, and we reinvest
these funds in assets which earn us a lower rate of interest.
Fluctuations in interest rates are not predictable or controllable. We
have attempted to structure our asset and liability management strategies to
mitigate the impact of changes in market interest rates on our net interest
income. However, there can be no assurance that we will be able to manage
interest rate risk so as to avoid significant adverse effects in our net
interest income.
A downturn in the health of the economy or changes in the Federal
Reserve's monetary policy could affect our net interest income and reduce our
profitability.
A downturn in the economy could affect us in the following ways, among
others:
o the amount of funds available for deposit could be reduced;
o the ability of borrowers to repay their loans could be hurt; and
o the strength of credit demands by customers could decline.
In addition, the banking business is affected not only by general
economic conditions, but also by the monetary policies of the Federal Reserve.
These monetary policies have significant effects on the operating results of
banks. Changes in monetary policies may affect the ability of the banks to
attract deposits, make loans and manage interest rate risk.
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<PAGE>
Changes in laws or regulations could hurt our profitability.
We operate in a highly regulated industry and are subject to the
supervision and examination by the Office of Thrift Supervision and the Federal
Deposit Insurance Corporation. The federal and state banking laws and
regulations limit the manner in which we and the banks may conduct business and
obtain financing. Changes in the laws and regulations that govern us could
restrict our operations or impose burdensome requirements upon us. This could
reduce our profitability.
Our operations may be adversely affected if we, or certain persons with
whom we do business, fail to resolve Year 2000 issues.
Rapid and accurate data processing is essential to our operations. Many
computer programs that can only distinguish the final two digits of the year
entered are expected to read entries for the year 2000 as the year 1900 and
compute payment, interest or delinquency based on the wrong date or are expected
to be unable to compute payment, interest, or delinquency.
Failure to resolve year 2000 issues presents the following risks to us:
o we could lose customers to other financial institutions, resulting in a
loss of revenue, if our data processing operation is unable to process
properly customer transactions;
o the Federal Home Loan Bank, the Federal Reserve System, and correspondent
banks could fail to provide funds to the banks which could materially
impair their liquidity and affect their ability to fund loans and deposit
withdrawals;
o concern on the part of depositors that year 2000 issues could impair access
to their deposit account balances could result in the banks experiencing
deposit outflows prior to December 31, 1999;
o the failure of our commercial and industrial borrowers to adequately
resolve their own year 2000 issues could render them unable to continue to
make timely loan payments; and
o we could incur increased personnel costs if additional staff is required to
perform functions that inoperative systems would have otherwise performed.
Most of our material data processing that could be affected by this
problem is provided by a third party service bureau. If our third party service
bureau does not resolve this problem, we would likely experience significant
data processing delays, mistakes or failures. These delays, mistakes, or
failures could have a significant adverse impact on our financial condition or
profitability.
The amount of stock held by our executive officers and directors and
stock benefit plans could make it difficult for stockholders to adopt proposals
or approve takeover attempts not supported by management.
The amount of ownership and control of our stock by directors and
executive officers could make it difficult for stockholders to make successful
stockholder proposals if they are opposed by management and the Board of
Directors. In addition, directors and executive officers could use their voting
power to block the approval of transactions, such as business combinations and
amendments to FSF's articles of incorporation or bylaws. As of June 30, 1999,
our directors and executive officers beneficially owned approximately 564,000
shares of our stock or 17%. In addition, approximately 12% of our common stock
4
<PAGE>
is owned by our employee stock ownership plan. Shares owned by our employee
stock ownership plan but not yet allocated to the accounts of our employees will
be voted by a committee of our non-employee directors.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares
being offered by the selling shareholders.
SELLING SHAREHOLDERS
Each of the shareholders named in the following table was either
formerly a stockholder of Homeowners Mortgage Corp. or of Insurance Planners of
Hutchinson, Inc. Each selling shareholder acquired shares of our common stock in
the transaction under which we acquired all of the issued and outstanding shares
of Homeowners Mortgage Corp. on November 17, 1998 or the transaction under which
we acquired all of the issued and outstanding shares of Insurance Planners of
Hutchinson, Inc. on June 1, 1998. Both Homeowners and Insurance Planners are now
wholly owned subsidiaries of FSF Financial. Except for certain positions as
officers of the subsidiaries, no selling shareholder has had any position,
office or other material relationship with us, other than in connection with the
acquisition of the companies, within the past three years.
The shares issued in connection with the acquisitions of Homeowners and
Insurance Planners were not registered and are therefor restricted as to resale.
As part of each acquisition agreement, we agreed to register at our expense, the
shares of FSF Financial common stock issued to the selling shareholders.
The following table assumes that each selling shareholder sells in this
offering all of the shares he or she holds. However, we are unable to determine
the exact number of shares that will actually be sold or when or if these sales
will occur. The percentage of ownership stated in the table is based on
2,841,487 shares, the number of issued and outstanding shares of our common
stock as of June 30, 1999.
5
<PAGE>
Name Shares Beneficially Owned Before Offering
- -------------------- -----------------------------------------
Number Percent
-------------------------- -------------
Dennis W. Potter 12,987 *
Murray Swenson 12,987 *
Robb Torushek 12,987 *
Elmer Nygaard 7,784 *
Sherry Nygaard 7,784 *
Tracy Nygaard 4,281 *
Brian Nygaard 4,281 *
Peter Fisher 19,071 *
Karen Magill 25,688 *
Nicole Magill 1,362 *
Travis Magill 3,113 *
Stephanie Magill 3,113 *
Tyler Magill 1,362 *
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TOTAL 116,800 4.1
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- -------------------------------
*Less than 1% of the common stock outstanding
PLAN OF DISTRIBUTION
The selling shareholders may from time to time sell all or a portion of
the shares. The shares may be sold in one or more transactions:
o in the over-the-counter market;
o in the Nasdaq National Market;
o on any exchange on which our common stock may then be listed; or
o a combination of such methods of sale.
The sales of the shares may take place in negotiated transactions. The
shares will be sold at market prices prevailing at the time of sale, at prices
related to the prevailing market prices, or at negotiated prices. The selling
shareholders may effect the sales of the shares by selling the shares to or
through broker-dealers. The broker-dealers may receive compensation in the form
of underwriting discounts, concessions or commissions. The compensation will be
received from the selling shareholders and/or purchasers of the shares for whom
the broker-dealers act as agent. The compensation may be in excess of customary
commissions.
The selling shareholders and any broker-dealers or agents participating
in the sales may be deemed to be underwriters as that term is defined under the
Securities Act of 1933, as amended. Any discount or commission received by them
and any profit on the resale of shares as principals would be deemed to be
underwriting discounts or commissions under the Securities Act. As of the date
of this prospectus, the
6
<PAGE>
selling shareholders cannot estimate and we cannot estimate the amount of
commissions or discounts that will be paid by the selling shareholders on
account of their sales of the shares from time to time.
We will pay all costs, expenses and fees in connection with the
registration of the shares. Commissions and discounts, if any, attributable to
the sale of shares will be borne by the selling shareholders. We estimate our
expenses to be as follows:
o Registration Fees $ 450
o Legal Services 4,000
o Printing Costs 0
o Miscellaneous 1,000
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o TOTAL $ 5,450
======
EXPERTS
The consolidated financial statements from our Annual Report on Form
10-K for the fiscal year ended September 30, 1998, have been incorporated by
reference into this prospectus and the registration statement in reliance upon
the report of Bertram Cooper & Co., LLP, independent auditors, which is
incorporated by reference into this prospectus, and in reliance upon the
authority of Bertram Cooper as experts in accounting and auditing.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be
passed upon for FSF by Malizia Spidi & Fisch, PC, Washington, D.C., counsel to
FSF Financial Corp.
WHERE TO FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended. Accordingly, we file periodic reports, proxy
statements and other information with the Securities and Exchange Commission.
You may inspect or copy these materials at the Public Reference Room at the SEC
at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional
offices of the SEC located at 7 World Trade Center, 13th Floor, Suite 1300, New
York, New York 10048 and Suite 1400, Citicorp Center, 14th Floor, 500 West
Madison Street, Chicago, Illinois 60661. For a fee, you may also obtain copies
of these materials by writing to the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information on
the operationof the Public Reference Room by calling the SEC at 1-800-SEC-0330.
Our filings are also available to the public on the SEC's website on the
Internet at http://www.sec.gov.
We have filed with the SEC a registration statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") with respect to the shares of common stock offered by this
prospectus. This prospectus does not contain all of the information included in
the registration statement. Please refer to the registration statement and its
exhibits, and to the documents incorporated by reference into the registration
statement, for further information about us and the shares of common stock
offered by this prospectus. You may obtain a copy of the registration statement
through the public reference facilities of the SEC described above. You may also
access a copy of the registration statement by means of the SEC's website at
http://www.sec.gov.
7
<PAGE>
Our common stock is traded on the Nasdaq National Market under the
symbol "FFHH." Documents that we have filed with the SEC can also be inspected
at the offices of the National Association of Securities Dealers, Inc., at 1735
K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference documents that we have
filed with the SEC. This means that we can disclose important information to you
by referring to those documents, and the information in those documents is
considered to be part of this prospectus. Documents that we file later with the
SEC will automatically update and supersede this information.
We incorporate by reference the documents listed below:
(1) FSF Financial Corp.'s Annual Report on Form 10-K for the year
ended September 30, 1998;
(2) FSF Financial Corp.'s Quarterly Reports on Form 10-Q for the
quarters ended December 31, 1989 and March 31, 1999;
(3) FSF Financial Corp.'s Current Report on Form 8-K filed with the
Commission on March 12, 1999;
(4) FSF Financial Corp.'s Registration Statement on Form 8A declared
effective by the SEC in 1994 and any amendment or report filed
for the purpose of updating such description; and
(5) All reports and other documents FSF Financial Corp. files with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, after the date of this
prospectus and prior to the termination of this offering.
You may request from the Secretary of FSF Financial Corp. a copy of any
document incorporated by reference, excluding exhibits unless they are
specifically incorporated into this prospectus, at no cost, by writing or
calling us at:
FSF Financial Corp.
201 Main Street South
Hutchinson, Minnesota 55350-2573
Telephone: (320) 234-4500.
8
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<TABLE>
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<S> <C>
================================================================================ ===============================================
You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information that is different. This
prospectus does not constitute an offer to sell, or the solicitation of an offer 116,800 Shares
to buy, any of the securities offered hereby to any person in any jurisdiction
in which the offer or solicitation would be unlawful. You should not assume that
the information provided by this prospectus is accurate as of any date after the
date of this prospectus. FSF FINANCIAL CORP.
--------------------
TABLE OF CONTENTS Common Stock
Page
Special Note of Caution Regarding
Forward-Looking Statements........................................... 2 ------------------
Risk Factors........................................................... 3 PROSPECTUS
Use of Proceeds........................................................ 5 ------------------
Selling Shareholders................................................... 5
Plan of Distribution................................................... 6
Experts................................................................ 7
Legal Matters.......................................................... 7
Where To Find More Information......................................... 7
Incorporation of Certain Documents by
Reference............................................................ 8 ___________, 1999
================================================================================ ===============================================
</TABLE>
<PAGE>
PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
* Registration Fees............................................... $ 450
* Legal Services.................................................. 4,000
* Printing Costs.................................................. 0
* Miscellaneous................................................... 1,000
-----
* Total........................................................... $5,450
=====
Item 15. Indemnification of Directors and Officers.
Sections 302A.521 of the Minnesota Business Corporation Act authorizes
a corporation such as the registrant to indemnify officers, directors, employees
and agents under certain circumstances. Section 302A.521, subdivision 2 requires
indemnification of directors, officers, employees and agents who have been
successful on the merits or otherwise in defense of certain actions, suits,
proceedings claims, issues and matters, if the person has not been indemnified
from another source, acted in good faith, received no improper personal benefit
and, in a criminal proceeding, had no reasonable cause to believe the conduct
was unlawful, and, when acting in an official capacity, reasonably believed the
conduct was in the best interest of the registrant. Article XVIII of the
Registrant's Articles of Incorporation provides for indemnification of
directors, officers and employees under certain circumstances.
Section 308A.325 of the Minnesota Statutes, 1971 allows for the
limitation of liability of directors.
Article XVII of the Registrant's Articles of Incorporation eliminates, under
certain circumstances, the liability of the directors of the Registrant.
The Registrant believes that these provisions assist the Registrant in,
among other things, attracting and retaining-qualified persons to serve the
registrant and its subsidiaries. However, a result of such provisions could be
to increase the expenses of the Registrant and effectively reduce the ability of
stockholders to sue on behalf of the Registrant since certain suits could be
barred or amounts that might otherwise be obtained on behalf of the Registrant
could be required to be repaid by the Registrant to an indemnified party.
Under a directors' and officers' liability insurance policy, directors
and officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act, as amended.
II-1
<PAGE>
Item 16. Exhibits:
The exhibits filed as part of this Registration Statement are as
follows:
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<S> <C>
4 Common Stock Specimen*
5 Opinion of Malizia Spidi & Fisch, PC
10.1 Statement of "Registration Rights," Exhibit C to Merger
Agreement with Homeowners Mortgage Corp.
10.2 Statement of "Subsequent Registration," Section 10.14
to Stock Purchase Agreement with Insurance Planners of
Hutchinson, Inc.
23.1 Consent of Bertram Cooper & Co. LLP
23.2 Consent of Malizia Spidi & Fisch, PC (included in Exhibit 5)
</TABLE>
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* Incorporated by reference to the registrant's Registration Statement on
Form S-1 filed with the Commission on June 1, 1994 (File No. 333-79570).
Item 17. 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,
represents a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Regulation
Fee" table in the effective 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 to such information 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.
II-2
<PAGE>
(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) The undersigned registrant hereby undertakes that, for 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 15(d) 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.
(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 Securities and
Exchange 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 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 and will be governed by the final adjudication of such issue.
II-3
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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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Hutchinson, Minnesota, on July 20, 1999.
FSF FINANCIAL CORP.
By: /s/Donald A. Glas
------------------------------------
Donald A. Glas
Co-Chair and Chief Executive Officer
(Duly Authorized Representative)
We, the undersigned directors and officers of FSF Financial Corp., do
hereby severally constitute and appoint Donald A. Glas and George B. Loban our
true and lawful attorneys and agents, to do any and all things and acts in our
names in the capacities indicated below and to execute all instruments for us
and in our names in the capacities indicated below which said Donald A. Glas and
George B. Loban may deem necessary or advisable to enable FSF Financial Corp. to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission, in connection with
this Registration Statement on Form S-3, including specifically, but not limited
to, power and authority to sign for us or any of us, in our names in the
capacities indicated below, the Registration Statement and any and all
amendments (including post-effective amendments) thereto; and we hereby ratify
and confirm all that Donald A. Glas and George B. Loban do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities indicated on July 20, 1999.
<TABLE>
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<S> <C>
/s/ Donald A. Glas /s/ Richard H. Burgart
- ----------------------------------------- ------------------------------------------------
Donald A. Glas Richard H. Burgart
Co-Chairman of the Board and Chief Chief Financial Officer and Treasurer
Executive Officer (Principal Financial and Accounting Officer)
(Principal Executive Officer)
/s/ George B. Loban /s/ Sever B. Knutson
- ----------------------------------------- ------------------------------------------------
George B. Loban Sever B. Knutson
Co-Chairman of the Board and President Director
/s/ Roger R. Stearns /s/ James J. Caturia
- ----------------------------------------- ------------------------------------------------
Roger R. Stearns James J. Caturia
Director Director
/s/ Jerome R. Dempsey
- -----------------------------------------
Jerome R. Dempsey
Director
</TABLE>
EXHIBIT NO. 5
<PAGE>
MALIZIA SPIDI & FISCH, PC
ATTORNEYS AT LAW
ONE FRANKLIN SQUARE
1301 K STREET, N.W.
SUITE 700 EAST
WASHINGTON, D.C. 20005
(202) 434-4660
FACSIMILE: (202) 434-4661
WRITER'S DIRECT DIAL NUMBER
July 20, 1999
Board of Directors
FSF Financial Corp.
201 Main Street South
Hutchinson, Minnesota 55350-2573
Re: Registration Statement Under the Securities Act of 1933
-------------------------------------------------------
Ladies and Gentlemen:
This opinion is rendered in connection with the Registration Statement
on Form S-3 filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Act") relating to the offer and sale
(the "Offering") of up to 116,800 shares of common stock, par value $.10 per
share (the "Common Stock"), of FSF Financial Corp. (the "Company"). As special
counsel to the Company, we have reviewed such legal matters as we have deemed
appropriate for the purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that the shares of Common
Stock of the Company covered by the aforesaid Registration Statement will, when
issued in accordance with the terms of the Offering against full payment
therefor, be validly issued, fully paid, and non-assessable shares of Common
Stock of the Company.
We hereby consent to the use of this opinion and to the reference to
our firm appearing in the Company's Prospectus under the heading "Legal
Matters." In giving this consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Securities and Exchange Commission adopted under
the Act.
This opinion is given as of the effective date of the Registration
Statement and we assume no obligation to advise you of changes that may
hereafter be brought to our attention.
Sincerely,
/s/Malizia Spidi & Fisch, PC
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MALIZIA SPIDI & FISCH, PC
EXHIBIT NO. 10.1
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Exhibit C
Registration Rights
1. Shelf Registration
(a) Shelf Registration. The Company, shall, no sooner than six months
and no later than nine months from the date of this Agreement,
(the "Filing Period"), file with the SEC a Registration Statement
for an offering to be made on a continuous basis pursuant to Rule
415 covering all of the Purchased Stock (as hereinafter defined)
(the "Initial Shelf Registration"). The Initial Shelf
Registration shall be on Form S-3 or another appropriate form
permitting registration of such Purchased Stock for resales by
holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The
Company shall not permit any securities other than the Purchased
Stock to be included in any Shelf Registration without the
consent of the holders of Purchased Stock. The Company shall use
its best efforts to keep the Initial Shelf Registration
continuously effective under the Securities Act of 1933, as
amended (the "Securities Act") until the date which is 24 months
from the date of filing (the "Effectiveness Period") or such
shorter period ending when (i) all Purchased Stock covered by the
Initial Shelf Registration have been sold in the manner set forth
and as contemplated in the Initial Shelf Registration or (ii) a
Subsequent Shelf Registration covering all of the Purchased Stock
has been declared effective under the Securities Act.
(b) Subsequent Shelf Registration. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for
any reasons at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered
thereunder), the Company shall use its best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 30 days of such cessation
of effectiveness amend the Shelf Registration in a manner to
obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Purchased Stock (a
"Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use its best efforts to
cause the Subsequent, Shelf Registration to be declared effective
as soon as practicable after such filing and to keep such
Subsequent Shelf Registration continuously effective for a period
equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein, the term "Shelf
Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement
and amend any Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form
used for such Shelf Registration, if required by the Securities
Act, or if reasonably requested by the holders of a majority of
the
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Purchased Stock covered by such Shelf Registration or by any
underwriter of such Purchased Stock, in each case, with the
Company's consent, which consent shall not be unreasonably
withheld or delayed.
(d) Redemption Rights. Notwithstanding anything contained herein to
the contrary, if the Company has not filed the Initial Shelf
Registration within the Filing Period and caused it to become
effective during said time period, than the Company shall, upon
request by any of the holders of the Purchased Stock redeem any
or all of the shares of said Purchased Stock (as may be requested
by said holder) at the higher of (i) the Average Market Price (as
said term is defined in the Merger Agreement); or (ii) the
closing price of the Company's common stock as reported by NASDAQ
on the last business day of the Filing Period.
2. Incidental Registration. Each time the Company shall determine to proceed
with the actual preparation and filing of a registration statement under
the Securities Act in connection with the proposed offer and sale for cash
of any of its securities by it or any of its security holders (other than a
registration statement on a form that does not permit the inclusion of
shares by its security holders), the Company will give written notice of
its determination to all record holders of Purchased Stock not theretofore
registered under the Securities Act and sold. Upon the written request of a
record holder of any shares of Purchased Stock given within 30 days after
receipt of any such notice from the Company, the Company will, except as
herein provided, cause all such shares of Purchased Stock, the record
holders of which have so requested registration thereof, to be included in
such registration statement, all to the extent requisite to permit the sale
or other disposition by the prospective seller or sellers of the Purchased
Stock to be so registered; provided, however, that nothing herein shall
prevent the Company from, at any time, abandoning or delaying any such
registration initiated by it. If any registration pursuant to this
paragraph 3 shall be underwritten in whole or in part, the Company may
require that the Purchased Stock requested for inclusion pursuant to this
paragraph 3 be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the underwriters.
If in the good faith judgment of the managing underwriter of a proposed
underwritten public offering the inclusion of all of the Purchased Stock
originally covered by a request for registration would reduce the number of
shares to be offered by the Company or interfere with the successful
marketing of the shares of stock offered by the Company, the number of
shares of Purchased Stock otherwise to be included in the underwritten
public offering may be reduced pro rata (by number of shares) among the
holders thereof requesting such registration, provided, however, that after
any such required reduction the Purchased Stock to be included in such
offering, together with any shares to be included in such offering that are
being offered by other selling shareholders, shall constitute at least 25%
of the total number of shares to be included in such offering. Those shares
of Purchased Stock which are thus excluded from the underwritten public
offering shall be withheld from the market by the holders thereof for a
period, not to exceed 90 days, which
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the managing underwriter reasonably determines if necessary in order to
effect the underwritten public offering.
3. Registration Procedures. If and whenever the Company is required by the
provisions of paragraph 1, 2 or 3 hereof to effect the registration of
shares of Purchased Stock under the Securities Act, the Company will:
(a) prepare and file with the Commission a registration statement with
respect to such securities, and use its best efforts to cause such
registration statement to become and remain effective for such period
as may be reasonably necessary to effect the sale of such securities,
not to exceed (i) twenty-four months in the case of the Shelf
Registration specified in Section 1 and (ii) nine months with respect
to a registration statement not covered by Section 1;
(b) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained
therein as may be necessary to keep such registration statement
effective for such period as may be reasonably necessary to effect the
sale of such securities, not to exceed (i) twenty-four months in the
case of the Shelf Registration specified in Section 1 and (ii) nine
months with respect to a registration statement not covered by Section
1;
(c) furnish to the security holders participating in such registration and
to the underwriters of the securities being registered such reasonable
number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such
underwriters may reasonably request in order to facilitate the public
offering of such securities;
(d) use its best efforts to register or qualify the securities covered by
such registration statement under such state securities or blue sky
laws of such jurisdictions as such participating holders may
reasonably request in writing within 20 days following the original
filing of such registration statement, except that the Company shall
not for any purpose be required to execute a general consent to
service of process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified.
(e) notify the security holders participating in such registration,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been
filed;
(f) notify such holders promptly of any request by the Commission for the
amending or supplementing of such registration statement or prospectus
or for additional information;
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(g) prepare and file with the Commission, promptly upon the request of any
such holders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such
holders (and concurred in by counsel for the Company), is required
under the Securities Act or the rules and regulations thereunder in
connection with the distribution of the Purchased Stock by such
holder;
(h) prepare and promptly file with the Commission and promptly notify such
holders of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct
any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities
Act, any event shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
(i) advise such holders, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceeding for the purpose and
promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued;
(j) use its best efforts to have the Purchased Stock listed on the Nasdaq
Stock Market or such other of the principal market or principal
exchange on which the Company's stock is then listed or quoted.
4. Expenses. With respect to each registration, the Company shall bear all
fees, costs and expenses including, without limitation, all registration,
filing and NASD fees, printing expenses, fees and disbursements of counsel
and accountants for the Company, fees and disbursements of counsel for the
underwriter or underwriters of such securities (if the Company and/or
selling security holders are required to bear such fees and disbursements),
all internal Company expenses, all legal fees and disbursements and other
expenses of complying with state securities or blue sky laws of any
jurisdictions in which the securities to be offered are to be registered or
qualified, and the premiums and other costs of policies of insurance
against liability (if any) arising out of such public offering and
underwriting discounts and commissions and transfer taxes relating to the
shares included in the offering by the selling security holders.
5. Indemnification. In the event that any Purchased Stock is included in a
registration statement under paragraph 1, 2 or 3 hereof:
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(a) The Company will indemnify and hold harmless each holder of shares of
Purchased Stock which are included in a registration statement
pursuant to the provisions of paragraph 1, 2 or 3 hereof, its
directors and officers, and any underwriter (as defined in the
Securities Act) for such holder and each person, if any, who controls
such holder or such underwriter within the meaning of the Securities
Act, from and against, and will reimburse such holder and each such
underwriter and controlling person with respect to, any and all loss,
damage, liability, cost and expense to which such holder or any such
underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or
alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
provided, however, that the Company will not be liable in any such
case to the extent that any such loss, damage, liability, cost or
expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity
with information furnished by such holder, such underwriter or such
controlling person in writing specifically for use in the preparation
thereof
(b) Each holder of shares of Purchased Stock which are included in a
registration pursuant to the provisions of this paragraph 1, 2 or 3
hereof will indemnify and hold harmless the Company, its directors and
officers, any controlling person or any underwriter from and against,
and will reimburse the Company, its directors and officers, any
controlling person and any underwriter with respect to, any and all
loss, damage, liability, cost or expense to which the Company or any
controlling person and/or any underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue or alleged
untrue statement of any material fact contained in such registration
statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was so
made in reliance upon and in strict conformity with written
information furnished by such holder specifically for use in the
preparation thereof. Notwithstanding the foregoing, each holder's
liability for indemnification shall be limited to the amount of the
holder's original purchase price of the Purchased Stock.
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(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) and (b) of this paragraph 6 of notice of
the commencement of any action involving the subject matter of the
foregoing indemnity provisions such indemnified party will, if a claim
thereof is to be made against the indemnifying party pursuant to the
provisions of said paragraph (a) or (b), promptly notify the
indemnifying party of the commencement thereof; but the omission to so
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than hereunder.
In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, provided, however, if the
defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party, or if there is a conflict
of interest which would prevent counsel for the indemnifying party
from also representing the indemnified party, the indemnified party or
parties shall have the right to select separate counsel to participate
in the defense of such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party
pursuant to the provisions of said paragraph (a) or (b) for any legal
or other expense subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed
counsel in accordance with the proviso of the preceding sentence, (ii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after the notice of the commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party.
6. Special Definition. "Purchased Stock" shall mean the Company's Common Stock
acquired pursuant to the Merger Agreement dated October 30, 1998 and the
stock or other securities of the Company issued in a stock split or
reclassification of, or a stock dividend or other distribution on or in
substitution or exchange for, or otherwise in connection with, any of the
foregoing securities, or in a merger or consolidation involving the Company
or a sale of all or substantially all of the Company's assets.
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EXHIBIT NO. 10.2
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10.14 Subsequent Registration. The parties acknowledge that the Corporation
Common Stock to be received by the Seller will not initially be registered with
the Securities and Exchange Commission ("SEC") or any state agency and therefore
is restricted as to transfer. The Corporation will, no sooner than six months
after the Closing, register such shares of Corporation Common Stock so as to be
freely transferable by the Seller.
EXHIBIT NO. 23.1
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INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
FSF Financial Corp. on Form S-3 of our report dated October 23, 1998, appearing
in the Annual Report on Form 10-K of FSF Financial Corp. for the year ended
September 30, 1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Bertram Cooper & Co., LLP
Bertram Cooper & Co., LLP
Waseca, Minnesota
July 14, 1999
