Registration No. 333-___________
As filed with the Securities and Exchange Commission on July 13, 2001
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________
CFS BANCSHARES, INC.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
- --------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation or Organization)
63-0367958
- --------------------------------------------------------------------------------
(I.R.S. Employer Identification Number)
1700 THIRD AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices)
CFS BANCSHARES, INC. STOCK OPTION AND INCENTIVE PLAN
- --------------------------------------------------------------------------------
(Full Title of the Plan)
BUNNY STOKES, JR., PRESIDENT AND CHIEF EXECUTIVE OFFICER
CFS BANCSHARES, INC.
1700 THIRD AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
- --------------------------------------------------------------------------------
(Name and Address of Agent For Service)
(205) 328-2041
- --------------------------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
COPIES TO:
JAMES C. STEWART, ESQUIRE
STRADLEY RONON HOUSLEY KANTARIAN & BRONSTEIN, LLP
1220 19th Street N.W., Suite 700
Washington, D.C. 20036
(202) 822-9611
======================================================================================================================
Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
TO Be To Be Price Per Offering Registration
Registered Registered Share Price Fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock,
$.01 par value 13,000 $14.00 $182,000 $45.50
======================================================================================================================
<FN>
(1) Maximum number of shares issuable under the CFS Bancshares, Inc. Stock
Option and Incentive Plan (13,000 shares), together with an indeterminate number
of shares being registered hereby as may be necessary to adjust the number of
additional shares of Common Stock reserved for issuance under such Plan as a
result of an increase in the number of shares issuable under such plan as the
result of a merger, consolidation, recapitalization or similar event involving
the Registrant or a stock split, stock dividend, reclassification,
recapitalization or similar adjustment in the Registrant's common stock.
(2) Under Rule 457(h) the registration fee in case of an employee stock option
plan may be calculated, inter alia, based upon the price at which the options
----- ----
may be exercised.
</FN>
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
- ------
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
- ------
*This registration statement relates to the registration of 13,000 shares
of Common Stock, $.01 par value per share, of CFS Bancshares, Inc. (the
"Company") reserved for issuance and delivery under the CFS Bancshares, Inc.
Stock Option and Incentive Plan (the "Plan"). Documents containing the
information required by Part I of this registration statement will be sent or
given to participants in the Plan in accordance with Rule 428(b)(1). In
accordance with the Note to Part I of Form S-8, such documents are not filed
with the Securities and Exchange Commission (the "Commission") either as part of
this registration statement or as prospectuses or prospectus supplements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
- ------
The following documents filed by CFS Bancshares, Inc. (the "Company") are
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
September 30, 2000 filed with the Commission on December 29, 2000 (Commission
File No. 0-24625).
(b) The Company's Quarterly Reports on Form 10-QSB for the quarters ended
December 31, 2000 and March 31, 2001 as filed with the Commission on February 14
and May 15, 2001, respectively.
(c) The description of the Company's Securities as contained in the
Company's Current Report on Form 8-K filed with the Commission on July 14, 1998.
ALL DOCUMENTS SUBSEQUENTLY FILED BY THE COMPANY PURSUANT TO SECTIONS 13(A),
13(C), 14, AND 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, PRIOR
TO THE FILING OF A POST-EFFECTIVE AMENDMENT WHICH INDICATES THAT ALL SECURITIES
OFFERED HAVE BEEN SOLD OR WHICH DEREGISTERS ALL SECURITIES THEN REMAINING
UNSOLD, SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THIS REGISTRATION
STATEMENT AND TO BE A PART HEREOF FROM THE DATE OF FILING OF SUCH DOCUMENTS.
ITEM 4. DESCRIPTION OF SECURITIES
- ------
Not applicable, as the Common Stock is registered under Section 12 of the
Securities Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
- ------
Not Applicable.
1
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
- ------
INDEMNIFICATION OF DIRECTORS AND OFFICERS OF THE COMPANY
Directors, officers and employees of the Company and/or Citizens Federal
Savings Bank (the "Bank") may be entitled to benefit from the indemnification
provisions contained in the Delaware General Corporation Law (the "DGCL"), the
Company's Certificate of Incorporation and federal regulations applicable to the
Bank. The general effect of these provisions is summarized below:
DELAWARE GENERAL CORPORATION LAW
Section 145 of the DGCL permits a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
proceeding of any type, (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, may not, of itself, create a presumption that these standards
have not been met.
A Delaware corporation may also indemnify any person who was or is a party
or is threatened to be made a party to any proceeding by or in the right of the
corporation by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation. However, no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought
determines upon application that such person is fairly and reasonably entitled
to be indemnified.
To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any proceeding
described above indemnification against expenses (including attorneys' fees)
actually and reasonably incurred by him is mandatory.
Any determination that indemnification of the director, officer, employee
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in subsections (a) and (b) must be made by a
majority of the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or by
the stockholders.
Expenses (including attorneys' fees) incurred by an officer or director in
defending any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation.
The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section is not exclusive.
2
In addition, a corporation shall have power to purchase and maintain
insurance against any liability of individuals whom the corporation is required
to indemnify.
ARTICLE XVI OF THE COMPANY'S CERTIFICATE OF INCORPORATION
A. Persons. The Corporation shall indemnify, to the extent provided in
-------
paragraphs B, D or F:
(1) any person who is or was a director, officer, employee, or agent
of the Corporation; and
(2) any person who serves or served at the Corporation's request as a
director, officer, employee, agent, partner or trustee of another
corporation, partnership, joint venture, trust or other enterprise.
B. Extent -- Derivative Suits. In case of a threatened, pending or
-----------------------------
completed action or suit by or in the right of the Corporation against a person
named in paragraph A by reason of his holding a position named in paragraph A,
the Corporation shall indemnify him if he satisfies the standard in paragraph C,
for expenses (including attorneys' fees but excluding amounts paid in
settlement) actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit.
C. Standard -- Derivative Suits. In case of a threatened, pending or
-----------------------------
completed action or suit by or in the right of the Corporation, a person named
in paragraph A shall be indemnified only if:
(1) he is successful on the merits or otherwise; or
(2) he acted in good faith in the transaction which is the subject of
the suit or action, and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, including, but not
limited to, the taking of any and all actions in connection with the
Corporation's response to any tender offer or any offer or proposal of
another party to engage in a Business Combination (as defined in Article
XV) not approved by the board of directors. However, he shall not be
indemnified in respect of any claim, issue or matter as to which he has
been adjudged liable to the Corporation unless (and only to the extent
that) the court in which the suit was brought shall determine, upon
application, that despite the adjudication but in view of all the
circumstances, he is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper.
D. Extent -- Nonderivative Suits. In case of a threatened, pending or
-------------------------------
completed suit, action or proceeding (whether civil, criminal, administrative or
investigative), other than a suit by or in the right of the Corporation,
together hereafter referred to as a nonderivative suit, against a person named
in paragraph A by reason of his holding a position named in paragraph A, the
Corporation shall indemnify him if he satisfies the standard in paragraph E, for
amounts actually and reasonably incurred by him in connection with the defense
or settlement of the nonderivative suit, including, but not limited to (i)
expenses (including attorneys' fees), (ii) amounts paid in settlement, (iii)
judgments, and (iv) fines.
E. Standard -- Nonderivative Suits. In case of a nonderivative suit, a
--------------------------------
person named in paragraph A shall be indemnified only if:
(1) he is successful on the merits or otherwise; or
(2) he acted in good faith in the transaction which is the subject of
the nonderivative suit and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Corporation, including, but not
limited to, the taking of any and all actions in connection with the
Corporation's response to any tender offer or any offer or proposal of
another party to engage in a Business Combination (as defined in Article
XV) not approved by the board of directors and, with respect to any
criminal action or proceeding, he had no reasonable cause to believe his
conduct was unlawful. The termination of a nonderivative suit by
3
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent shall not, in itself, create a presumption that the
person failed to satisfy the standard of this subparagraph E(2).
F. Determination That Standard Has Been Met. A determination that the
-------------------------------------------
standard of paragraph C or E has been satisfied may be made by a court, or,
except as stated in subparagraph C(2) (second sentence), the determination may
be made by:
(1) the board of directors by a majority vote of a quorum consisting
of directors of the Corporation who were not parties to the action, suit or
proceeding; or
(2) independent legal counsel (appointed by a majority of the
disinterested directors of the Corporation, whether or not a quorum) in a
written opinion; or
(3) the stockholders of the Corporation.
G. Proration. Anyone making a determination under paragraph F may determine
---------
that a person has met the standard as to some matters but not as to others, and
may reasonably prorate amounts to be indemnified.
H. Advance Payment. The Corporation shall pay in advance any expenses
----------------
(including attorneys' fees) which may become subject to indemnification under
paragraphs A through G if:
(1) the board of directors authorizes the specific payment; and
(2) the person receiving the payment undertakes in writing to repay
the same if it is ultimately determined that he is not entitled to
indemnification by the Corporation under paragraphs A through G.
I. Nonexclusive. The indemnification and advance payment of expenses
------------
provided by paragraphs A through H shall not be exclusive of any other rights to
which a person may be entitled by law, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
J. Continuation. The indemnification provided by this Article XVI shall be
------------
deemed to be a contract between the Corporation and the persons entitled to
indemnification thereunder, and any repeal or modification of this Article XVI
shall not affect any rights or obligations then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought based in whole or in part upon any such state
of facts. The indemnification and advance payment provided by paragraphs A
through H shall continue as to a person who has ceased to hold a position named
in paragraph A and shall inure to his heirs, executors and administrators.
K. Insurance. The Corporation may purchase and maintain insurance on behalf
---------
of any person who holds or who has held any position named in paragraph A,
against any liability incurred by him in any such position, or arising out of
his status as such, whether or not the Corporation would have power to indemnify
him against such liability under paragraphs A through H.
L. Intention and Savings Clause. It is the intention of this Article XVI to
----------------------------
provide for indemnification to the fullest extent permitted by the General
Corporation Law of the State of Delaware, and this Article XVI shall be
interpreted accordingly. If this Article XVI or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee, and
agent of the Corporation as to costs, charges, and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the Corporation to the
full extent permitted by any applicable portion of this Article XVI that shall
not have been invalidated and to the full extent permitted by applicable law. If
the General Corporation Law of the State of Delaware is amended, or other
Delaware law is enacted, to permit further or additional indemnification of the
persons defined in this Article XVI A, then the indemnification of such persons
4
shall be to the fullest extent permitted by the General Corporation Law of the
State of Delaware, as so amended, or such other Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
- ------
Not applicable.
ITEM 8. EXHIBITS
- ------
For a list of all exhibits filed or included as part of this Registration
Statement, see "Index to Exhibits" at the end of this Registration Statement.
ITEM 9. UNDERTAKINGS
- ------
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregrate,
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 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 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; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if the registration
statement is on Form S-3 or S-8, 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
of the securities being registered that 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
(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 of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Birmingham, State of Alabama, on July 13, 2001.
CFS BANCSHARES, INC.
By: /s/ Bunny Stokes, Jr.
----------------------------------
Bunny Stokes, Jr.
President
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned Directors of CFS Bancshares, Inc., hereby severally
constitute and appoint Bunny Stokes, Jr. and W. Kent McGriff, either of whom may
act, with full power of substitution, our true and lawful attorney and agent, to
do any and all things in our names in the capacities indicated below which said
Bunny Stokes, Jr. and W. Kent McGriff, either of whom may act, may deem
necessary or advisable to enable CFS Bancshares, Inc. 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 the registration
of CFS Bancshares, Inc. common stock, including specifically, but not limited
to, power and authority to sign for 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
said Bunny Stokes, Jr. and W. Kent McGriff shall do or cause to be done by
virtue thereof.
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.
Signatures Title Date
---------- ----- ----
By: /s/ Bunny Stokes, Jr. Principal Executive Officer July 13, 2001
--------------------------------- and Director
Bunny Stokes, Jr.
By: /s/ W. Kent McGriff Principal Financial and July 13, 2001
--------------------------------- Accounting Officer
W. Kent McGriff
By: /s/ Rev. John T. Porter Director July 13, 2001
---------------------------------
Rev. John T. Porter
By: /s/ Odessa Woolfolk Director July 13, 2001
---------------------------------
Odessa Woolfolk
By: /s/ James W. Coleman Director July 13, 2001
---------------------------------
James W. Coleman
7
INDEX TO EXHIBITS
-----------------
Exhibit Description
- ------- -----------
5.1 Opinion of Stradley Ronon Stevens & Young, LLP as
to the validity of the Common Stock being registered
23.1 Consent of Independent Auditors
23.2 Consent of Stradley Ronon Stevens & Young, LLP
(appears in their opinion filed as Exhibit 5.1)
24. Power of Attorney (contained in the signature page of
this Registration Statement)
99.1 CFS Bancshares, Inc. Stock Option and Incentive Plan
(the "Plan")
99.2 Form of Incentive Stock Option Agreement
99.3 Form of Non-Incentive Stock Option Agreement