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As filed with the Securities and Exchange Commission on August 23, 2001
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DUTCHFORK BANCSHARES, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 57-1094236
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
1735 WILSON RD.
NEWBERRY, SOUTH CAROLINA 29108
(803) 321-3200
(Address of Registrant's Principal Executive Offices)
NEWBERRY FEDERAL SAVINGS BANK
DIRECTOR DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
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J. THOMAS JOHNSON COPIES TO:
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER PAUL M. AGUGGIA, ESQUIRE
DUTCHFORK BANCSHARES, INC. ERIC S. KRACOV, ESQUIRE
1735 WILSON ROAD MULDOON MURPHY & FAUCETTE LLP
NEWBERRY, SOUTH CAROLINA 29108 5101 WISCONSIN AVENUE, N.W.
(803) 321-3200 WASHINGTON, D.C. 20016
(Name, Address, Including Zip Code, and Telephone (202) 362-0840
Number, Including Area Code, of Agent for Service)
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 /
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<table>
<caption>
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Proposed Proposed Maximum Amount of
Title of each Class of Amount to be Maximum Offering Aggregate Offering Registration
Securities to be Registered Registered (1) Price Per Share Price(2) Fee
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<s> <c> <c> <c> <c>
Common Stock
$.01 par Value 27,560 Shares $21.77(3) $600,000 $150.00
- ----------------------------------------------------------------------------------------------------
Participation
Interests (4) (5)
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</table>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Newberry Federal Savings Bank Director Deferred Compensation Plan (the
"Plan") as the result of a stock split, stock dividend or similar adjustment
of the outstanding Common Stock of DutchFork Bancshares, Inc. pursuant to 17
C.F.R. Section 230.416(a).
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The average of the high and low prices of the common stock of DutchFork
Bancshares, Inc. (the "Common Stock") as reported on the Nasdaq National
Market ("Nasdaq") on August 22, 2001 in accordance with 17 C.F.R. Section
230.457(c).
(4) In addition, pursuant to Rule 416(c) under the Securities Act of 1933 this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(5) In accordance with Rule 457(h) under the Securities Act of 1933, 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.
Accordingly, no separate fee is required for the participation interests.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SECTION 230.462.
Number of Pages 16
Exhibit Index begins on Page 9
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DUTCHFORK BANCSHARES, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1 PLAN INFORMATION AND ITEM 2 REGISTRANT INFORMATION AND EMPLOYEE
PLAN ANNUAL INFORMATION
The documents containing the information for Newberry Federal Savings Bank
Director Deferred Compensation Plan (the "Plan") required by Part I of the
Registration Statement will be sent or given to the participants in the Plan as
specified by Rule 428(b)(1). Such documents are not filed with the Securities
and Exchange Commission (the "SEC") either as a part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule 424 in
reliance on Rule 428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are incorporated by
reference in this Registration Statement:
(a) The Form 10-KSB report filed on December 29, 2000 by DutchFork
Bancshares, Inc. (the "Company") for the fiscal year ended September 30, 2000
(File No. 000-30483), which includes: the consolidated balance sheets of the
Company as of September 30, 2000, and the related consolidated statements of
income, comprehensive operations, changes in stockholders' equity, and cash
flows for each of the years in the two-year period then ended, together with the
related notes and the report of Clifton D. Bodiford, CPA, independent auditors.
(b) The Form 10-QSB reports filed by the Company for the fiscal quarters
ended December 31, 2000 (File No. 000-30483), March 31, 2001 (File No.
000-30483) and June 30, 2001 (File No. 000-30483), filed with the SEC on
February 14, 2001, May 15, 2001 and August 14, 2001, respectively.
(c) The description of the Company's Common Stock contained in the
Company's Form 8-A (File No. 000-30483), as filed with the SEC pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange Act"), and
Rule 12b-15 promulgated thereunder, on April 27, 2000, and declared effective
May 12, 2000 as incorporated by reference from the Company's Form SB-2 (File No.
333-31986) declared effective on May 12, 2000.
(d) All documents filed by the Registrant and the Plan, where
applicable, pursuant to Section 13(a) and (c), 14 or 15(d) of the Exchange Act
after the date hereof and prior to the filing of a post- effective amendment
which deregisters all securities then remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR IN A DOCUMENT
INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN, SHALL BE DEEMED
TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS REGISTRATION STATEMENT TO THE
EXTENT THAT A STATEMENT CONTAINED HEREIN, OR IN ANY OTHER SUBSEQUENTLY FILED
DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE
HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO MODIFIED OR
SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO
CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
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ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered pursuant to the Plan has been registered
pursuant to Section 12(g) of the Exchange Act. Accordingly, a description of the
Common Stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND PLAN ADMINISTRATOR.
Article X and XI of the Registrant's Certificate of Incorporation
provides as follows:
TENTH:
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A. Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or
was a Director or an Officer of the Corporation or is or was serving at
the request of the Corporation as a Director, Officer, employee or agent
of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such proceeding
is alleged action in an official capacity as a Director, Officer,
employee or agent or in any other capacity while serving as a Director,
Officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
such law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith; provided, however, that, except as provided in
Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation.
B. The right to indemnification conferred in Section A of this
Article TENTH shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her capacity
as a Director or Officer (and not in any other capacity in which service
was or is rendered by such indemnitee, including, without limitation,
services to an employee benefit plan) shall be made only upon delivery
to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it
shall ultimately be determined by final judicial decision from which
there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses
under this Section or otherwise. The rights to indemnification and to
the advancement of expenses conferred in Sections A and B of this
Article TENTH shall be contract rights and such rights shall continue as
to an indemnitee who has ceased to be a Director, Officer, employee or
agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators.
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C. If a claim under Section A or B of this Article TENTH is not
paid in full by the Corporation within sixty days after a written claim
has been received by the Corporation, except in the case of a claim for
an advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by
the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid
also the expenses of prosecuting or defending such suit. In (i) any suit
brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a
right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking the Corporation shall
be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set
forth in the Delaware General Corporation Law. Neither the failure of
the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard
of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnitee is not entitled to be indemnified,
or to such advancement of expenses, under this Article TENTH or
otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of
expenses conferred in this Article TENTH shall not be exclusive of any
other right which any person may have or hereafter acquire under any
statute, the Corporation's Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, Officer, employee or agent of the
Corporation or subsidiary or Affiliate or another corporation,
partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have
the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification and to
the advancement of expenses to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article TENTH with
respect to the indemnification and advancement of expenses of Directors
and Officers of the Corporation.
ELEVENTH: A Director of this Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except for liability: (i) for any breach of the
Director's duty of loyalty to the Corporation or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which the Director derived an
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improper personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of Directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing at the time of such repeal
or modification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. LIST OF EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-K):
4.1 Certificate of Incorporation of the Registrant1
4.2 Bylaws of the Registrant1
4.3 Stock Certificate of DutchFork Bancshares, Inc.1
4.4 Newberry Federal Savings Bank Director Deferred
Compensation Plan
5.0 Opinion of Muldoon Murphy & Faucette LLP re: legality of
the securities
23 Consent of Clifton D. Bodiford, CPA
24 Power of Attorney is located on the signature pages.
- --------------------------
1 Incorporated herein by reference from the Exhibits contained in the
Registration Statement on Form SB-2 (SEC No. 333-31986), as amended, and filed
on March 8, 2000.
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ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration
Statement to:
(i) Include any Prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the Prospectus any facts or events which,
individually or together, represent a fundamental change
in the information 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 SEC 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 Registration Fee" table in the effective
registration statement; and
(iii) Include any additional or changed material information on
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement unless the
information required by (i) and (ii) is contained in
periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are
incorporated by reference into this Registration
Statement;
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new Registration Statement of the
securities offered, and the offering of the securities at that
time to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the
Offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's or the Plan's
annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, 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 SEC 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 trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, DutchFork
Bancshares, Inc. and the Newberry Federal Savings Bank Director Deferred
Compensation Plan certify that they have reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and have duly caused this
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in Newberry, South Carolina on August 21, 2001.
DUTCHFORK BANCSHARES, INC.
By: /s/ J. Thomas Johnson
---------------------------------------------
J. Thomas Johnson
Chairman of the Board of Directors, President
and Chief Executive Officer
NEWBERRY FEDERAL SAVINGS BANK
DIRECTOR DEFERRED COMPENSATION PLAN
By: /s/ J. Thomas Johnson
---------------------------------------------
J. Thomas Johnson
Plan Administrator
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.
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints J. Thomas Johnson and Steven P. Sligh, as his
true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any or all amendments to the Form S-8 Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the U.S. Securities and Exchange Commission,
respectively, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and things requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
<table>
<caption>
Name Title Date
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<s> <c> <c>
/s/ J. Thomas Johnson Chairman of the Board of Directors, August 21, 2001
- ------------------------- President and Chief Executive Officer
J. Thomas Johnson (principal executive officer)
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/s/ Steven P. Sligh Executive Vice President, August 21, 2001
- ------------------------- Chief Financial Officer,
Steven P. Sligh Treasurer and Director
(principal accounting and
financial officer)
/s/ Robert E. Livingston, III Corporate Secretary and Director August 21, 2001
- ------------------------------
Robert E. Livingston, III
Director
- -------------------------
Keitt Purcell
/s/ Robert W. Owen Director August 21, 2001
- -------------------------
Robert W. Owen
Director
- --------------------------
James E. Wiseman, Jr.
</table>
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<table>
<caption>
EXHIBIT INDEX
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Exhibit No. Description Method of Filing
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<s> <c> <c>
4.1 Certificate of Incorporated herein by reference from the Exhibits of the
Incorporation of the Registrant's Registration Statement on Form SB-2 and amendments
Registrant thereto, initially filed on March 8, 2000, Registration No. 333-
31986.
4.2 Bylaws of the Incorporated herein by reference from the Exhibits of the
Registrant Registrant's Registration Statement on Form SB-2 and amendments
thereto, initially filed on March 8, 2000, Registration No. 333-
31986.
4.3 Stock Certificate of Incorporated herein by reference from the Exhibits of the
the Registrant Registrant's Registration Statement on Form SB-2 and amendments
thereto, initially filed on March 8, 2000, Registration No. 333-
31986.
4.4 Newberry Federal Filed herewith.
Savings Bank
Director Deferred
Compensation Plan
5.0 Opinion of Muldoon Filed herewith.
Murphy & Faucette
LLP re: legality of
the securities
23 Consent of Clifton Filed herewith.
D. Bodiford, CPA
24 Power of Attorney Located on the signature page.
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