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As filed with the Securities and Exchange Commission on December 12, 1997
Registration No.333-30757
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE
AMENDMENT NO. 4
TO THE
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INDEPENDENCE COMMUNITY BANK CORP.
(Exact name of registrant as specified in its articles of incorporation)
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Delaware 6711 11-3387931
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(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Classification Code Number) Identification No.)
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195 Montague Street
Brooklyn, New York 11201
(718) 722-5300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Charles J. Hamm
Chairman of the Board, President and Chief Executive Officer
195 Montague Street
Brooklyn, New York 11201
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Raymond A. Tiernan, Esq.
Philip R. Bevan, Esq.
Hugh T. Wilkinson, Esq.
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
12th Floor
Washington, D.C. 20005
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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, 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 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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AMOUNT
TITLE OF EACH CLASS OF TO BE PURCHASE PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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Common Stock, $.01 par
value per share (1) 76,043,750 shares $10.00 $760,437,500(2) $230,436(3)
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Participation interests 1,233,450 shares -- -- (4)
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(1) Includes shares of Common Stock to be issued to the Independence Community
Foundation, a private foundation.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee of $230,436.00 was previously paid in connection with
the prior filing of the Form S-1.
(4) The securities of Independence Community Bank Corp. to be purchased by the
Independence Savings Bank 401(k) Savings Plan are included in the amount
shown for Common Stock. Accordingly, no separate fee is required for the
participation interests. In accordance with Rule 457(h) of the Securities
Act, as amended, the registration fee has been calculated on the basis of
the number of shares of Common Stock that may be purchased with the
current assets of such Plan.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 13.OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION (1).
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SEC filing fees............................................................................... $ 230,436
NYBD filing fees.............................................................................. 5,000
OTS filing fees............................................................................... 2,000
NASD filing fees.............................................................................. 30,500
Nasdaq National Market listing fee............................................................ 50,000
Printing, postage and mailing ................................................................ 2,250,000
Legal fees.................................................................................... 1,100,000
Blue Sky and expenses......................................................................... 15,000
Marketing agent's fees and expenses........................................................... 10,500,000
Accounting fees............................................................................... 800,000
Appraiser's fees.............................................................................. 120,000
Proxy solicitation fees and expenses.......................................................... 50,000
Conversion agent fees and expenses............................................................ 200,000
Transfer agent fees and expenses.............................................................. 50,000
Conversion center telephone, temporary support staff and equipment............................ 1,000,000
Miscellaneous................................................................................. 47,064
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TOTAL.........................................................................................$16,450,000
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(1) Actual expense based upon the registration of 76,043,750 shares at
$10.00 per share. All other expenses are estimated.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law sets forth
circumstances under which directors, officers, employees and agents may be
insured or indemnified against liability which they may incur in their capacity
as such. The Certificate of Incorporation and the Bylaws of the Company provide
that the directors, officers, employees and agents of the Company shall be
indemnified to the full extent permitted by law. Such indemnity shall extend to
expenses, including attorney's fees, judgments, fines and amounts paid in the
settlement, prosecution or defense of the foregoing actions.
Article 10 of the Registrant's Certificate of Incorporation provides
as follows:
ARTICLE 10. INDEMNIFICATION. The Corporation shall indemnify its
directors, officers, employees, agents and former directors, officers,
employees and agents, and any other persons serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
association, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees, judgments, fines and amounts paid in
settlement)
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incurred in connection with any pending or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, with
respect to which such director, officer, employee, agent or other person
is a party, or is threatened to be made a party, to the full extent permitted
by the General Corporation Law of the State of Delaware, provided, however,
that the Corporation shall not be liable for any amounts which may be due to
any person in connection with a settlement of any action, suit or proceeding
effected without its prior written consent or any action, suit or proceeding
initiated by any person seeking indemnification hereunder without its prior
written consent. The indemnification provided herein (i) shall not be deemed
exclusive of any other right to which any person seeking indemnification may be
entitled under any bylaw, agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and
as to action in any other capacity, and (ii) shall inure to the benefit of the
heirs, executors and administrators of any such person. The Corporation shall
have the power, but shall not be obligated, to purchase and maintain insurance
on behalf of any person or persons enumerated above against any liability
asserted against or incurred by them or any of them arising out of their status
as corporate directors, officers, employees, or agents whether or not the
Corporation would have the power to indemnify them against such liability under
the provisions of this Article 10.
Article VI of the Company's Bylaws provides as follows:
6.1 Indemnification. The Corporation shall provide indemnification to
its directors, officers, employees, agents and former directors, officers,
employees and agents and to others in accordance with the Corporation's
Certificate of Incorporation.
6.2 Advancement of Expenses. Reasonable expenses (including attorneys'
fees) incurred by a director, officer or employee of the Corporation in
defending any civil, criminal, administrative or investigative action, suit or
proceeding described in Section 6.1 may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding as authorized by
the Board of Directors only upon receipt of an undertaking by or on behalf of
such person to repay such amount if it shall ultimately be determined that the
person is not entitled to be indemnified by the Corporation.
6.3 Other Rights and Remedies. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Corporation's Certificate of
Incorporation, any agreement, vote of stockholders or disinterested directors
or otherwise, both as to actions in their official capacity and as to actions
in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer or employee and shall inure to
the benefit of the heirs, executors and administrators of such person.
6.4 Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director,
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officer of employee of the Corporation, or is or was serving at the
request of the corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against him or incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would have
the power to indemnify him against such liability under the provisions of its
Certificate of Incorporation or this Article VI.
6.5 Modification. The duties of the Corporation to indemnify and to
advance expenses to a director, officer or employee provided in this Article VI
shall be in the nature of a contract between the Corporation and each such
person, and no amendment or repeal of any provision of this Article VI shall
alter, to the detriment of such person, the right of such person to the advance
of expenses or indemnification related to a claim based on an act or failure to
act which took place prior to such amendment or repeal.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Not applicable.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS SCHEDULES
The exhibits and financial statement schedules filed as a part of this
Registration Statement are as follows:
(a) LIST OF EXHIBITS (filed herewith unless otherwise noted)
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1.1* Engagement Letter with Sandler O'Neill & Partners, L.P.
1.2* Form of Agency Agreement with Sandler O'Neill & Partners, L.P.
2.0* Plan of Conversion, as amended
3.1* Certificate of Incorporation of Independence Community Bank Corp.
3.2* Bylaws of Independence Community Bank Corp.
4.0* Form of Stock Certificate of Independence Community Bank Corp.
5.0* Opinion of Elias, Matz, Tiernan & Herrick L.L.P. re: legality
8.1* Opinion of Elias, Matz, Tiernan & Herrick L.L.P. re: Federal tax
matters
8.2* Opinion of Ernst and Young LLP re: New York tax matters
8.3* Letter of RP Financial, LC. re: Subscription Rights
10.1* Form of Change of Control Agreement to be entered into among
Independence Community Bank Corp., Independence Savings Bank and
certain executive offices.
10.2* Form of ESOP Loan Commitment Letter
10.3* Form of Change of Control Agreement to be entered into between
Independence Savings Bank and certain officers of the Bank.
23.1* Consent of Elias, Matz, Tiernan & Herrick L.L.P. (included in
Exhibits 5.0 and 8.1, respectively)
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23.2 Consent of Ernst & Young LLP.
23.3* Consent of RP Financial, LC.
23.4* Consent of Potter Anderson & Corroon
23.5* Consent of William M. Mercer, Incorporated.
24.0* Power of Attorney (included in Signature Page of this Registration
Statement)
27.0* Financial Data Schedule
99.1* Appraisal Report of RP Financial, LC.
99.2* Subscription Order Form and Instructions
99.3* Additional Solicitation Material
99.4* Form of the Independence Community Bank Foundation Gift Instrument
99.5* Updated Appraisal Report dated as of August 8, 1997 of RP Financial, LC.
99.6* Updated Appraisal Report dated as of October 29, 1997 of RP Financial, LC.
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* Previously filed.
(b) FINANCIAL STATEMENT SCHEDULES
All schedules have been omitted as not applicable or not required
under the rules of Regulation S-X.
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, represent 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 the securities offered would not exceed that which was
registered) and any deviation from the low or high and 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 20
percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
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 Statement;
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the Offering.
The undersigned Registrant hereby undertakes to furnish stock
certificates to or in accordance with the instructions of the respective
purchasers of the Common Stock, so as to make delivery to each purchaser
promptly following the closing under the Plan of Conversion.
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 of
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
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Form S-1 Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the State of New
York on December 12, 1997.
INDEPENDENCE COMMUNITY BANK CORP.
By: /s/ Charles J. Hamm
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Charles J. Hamm
Chairman, 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 Charles J. Hamm his true and
lawful attorney, with full power to sign for each 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.
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Name Title Date
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/s/ Charles J. Hamm Chairman, President and December 12, 1997
- ----------------------------------- Chief Executive Officer
Charles J. Hamm (principal executive
officer)
/s/ Joseph S. Morgano Director, Executive Vice December 12, 1997
- ----------------------------------- President and Mortgage
Joseph S. Morgano Officer
/s/ John B. Zurell Executive Vice President- December 12, 1997
- ----------------------------------- Accounting and Financial Systems
John B. Zurell (principal financial and accounting
officer)
/s/ Willard N. Archie * Director December 12, 1997
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Willard N. Archie
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Name Title Date
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Robert D. Catell *
- ----------------------------------- Director December 12, 1997
Robert D. Catell
/s/ Rohit M. Desai * Director December 12, 1997
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Rohit M. Desai
/s/ Chaim Y. Edelstein * Director December 12, 1997
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Chaim Y. Edelstein
/s/ Robert W. Gelfman * Director December 12, 1997
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Robert W. Gelfman
/s/ Scott M. Hand * Director December 12, 1997
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Scott M. Hand
/s/ Donald E. Kolowsky * Director December 12, 1997
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Donald E. Kolowsky
/s/ Janine Luke * Director December 12, 1997
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Janine Luke
/s/ Wesley D. Ratcliff * Director December 12, 1997
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Wesley D. Ratcliff
/s/ Donald H. Elliott * Director December 12, 1997
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Donald H. Elliott
/s/ Malcolm MacKay * Director December 12, 1997
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Malcolm MacKay
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* Signed by Charles J. Hamm pursuant to power of attorney granted thereto as
of July 3, 1997.
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Experts,"
"Consolidated Statements of Income" and "The Conversion - Tax Aspects" and to
the use of our reports dated May 29, 1997 (with respect to the consolidated
financial statements of Independence Savings Bank) and July 31, 1997 (with
respect to the financial statements of Independence Savings Bank 401(k) Savings
Plan in RSI Retirement Trust, included in the Registration Statement, related
Prospectus and Prospectus Supplement of Independence Community Bank
Corp., for the registration of up to 76,043,750 shares of its common stock, and
the Application for Conversion on Form 86-AC.
/s/ ERNST & YOUNG LLP
New York, New York
December 11, 1997
