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As filed with the Securities and Exchange Commission on January 7, 2010
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ATHENS BANCSHARES CORPORATION
(exact name of registrant as specified in its charter)
TENNESSEE 27-0920126
- ------------------------------- ---------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
106 WASHINGTON AVENUE
ATHENS, TENNESSEE 37303
(423) 745-1111
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
ATHENS FEDERAL COMMUNITY BANK
401(K) PLAN
(Full Title of the Plan)
COPIES TO:
JEFFREY L. CUNNINGHAM VICTOR L. CANGELOSI, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER SUZANNE A. WALKER, ESQ.
ATHENS BANCSHARES CORPORATION KILPATRICK STOCKTON LLP
106 WASHINGTON AVENUE 607 14TH STREET, NW, SUITE 900
ATHENS, TENNESSEE 37303 WASHINGTON, D.C. 20005
(423) 745-1111 (202) 508-5800
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company |X|
(Do not check if a smaller reporting company)
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Title of each Class of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Per Aggregate Offering Registration
Registered Registered(1) Share Price(2) Fee
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Common Stock 453,900 $10.00(3) $4,539,000 $324
$.01 par Value
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Participation (4)
Interests
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(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 Athens Federal Community Bank 401(k) Plan (the "Plan") as the result of
a stock split, stock dividend or similar adjustment of the outstanding
common stock of Athens Bancshares Corporation (the "Common Stock") pursuant
to 17 C.F.R. ss.230.416(a).
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The average of the high and low price of the Common Stock as reported on
January 6, 2010 in accordance with 17 C.F.R. ss.230.457(c).
(4) In addition, pursuant to 17 C.F.R. ss.230.416(c), this registration
statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the Plan, based upon the maximum amount that could be
issued under the Plan pursuant to 17 C.F.R. ss.230.457(h)(5). In accordance
with 17 C.F.R. ss.230.457(h), where securities are to be offered pursuant
to an employee benefit plan, the aggregate offering price and the amount of
the registration fee shall be computed with respect to the maximum 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. SS.230.462.
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ATHENS BANCSHARES CORPORATION
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the Athens Federal
Community Bank 401(k) Plan (the "Plan") specified by Part I of this Registration
Statement will be sent or given to the participants in the Plan as specified by
Rule 428(b)(1). Such documents need not be 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. Such documents and the information incorporated by reference pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus for the Registration Statement.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed by Athens Bancshares
Corporation (the "Registrant" or the "Corporation") with the SEC are
incorporated by reference in this Registration Statement:
(a) The Prospectus filed with the SEC by the Registrant (File No.
333-161967) pursuant to Rule 424(b)(3) on November 20, 2009, which includes the
consolidated balance sheets of Athens Federal Community Bank and subsidiaries as
of December 31, 2008 and December 31, 2007 and the related consolidated
statements of income, changes in equity and cash flows for the years then ended.
(b) The Registrant's Quarterly Report on Form 10-Q (File No. 001-34534)
for the quarterly period ended September 30, 2009 filed on December 23, 2009.
(c) The description of the Registrant's common stock contained in
Registrant's Form 8-A12B, as filed with the SEC on November 9, 2009 pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act")
pursuant to the rules promulgated under the Exchange Act.
(d) The Registrant's Current Reports on Form 8-K filed on December 10,
2009 and November 23, 2009 (other than items submitted under 2.02, 7.01 and 9.01
of Form 8-K).
(e) All documents filed by the Registrant and the Plan, where
applicable, pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act
after the date hereof and 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 (in each case other than those portions
furnished under items 2.02, 7.01 and 9.01 of Form 8-K).
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.
ITEM 4. DESCRIPTION OF SECURITIES
The Athens Bancshares Corporation Common Stock to be offered pursuant
to the Plan has been registered pursuant to Section 12(b) of the Exchange Act as
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the successor to the former issuer pursuant to the rules promulgated under 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
The Corporation's Charter provides for the following indemnification
under Article XI:
ARTICLE XI
INDEMNIFICATION
(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, and (1) he or she conducted himself in good faith, (2) he
or she reasonably believed, (a) in the case of conduct in his official capacity
with the Corporation, that his or her conduct was in the Corporation's best
interest and, (b) in all other cases, that his or her conduct was at least not
opposed to the Corporation's best interest, and (3) in the case of any criminal
proceeding, he or she had no reasonable cause to believe that his conduct was
unlawful (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 TBCA, 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 before 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
XI 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 TBCA
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 upon (1) 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, (2)
delivery to the Corporation, by or on behalf of such indemnitee, of a written
affirmation of his or her good faith belief that he or she has met the standard
of conduct set forth in Section A of this Article XI, and (3) a determination
that the facts would not preclude indemnification under this Article XI.
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The determination shall be made (a) by the Board of Directors by
majority vote of a quorum consisting of directors not at the time parties to the
proceeding, (b) if a quorum cannot be obtained under the preceding clause, by
majority vote of a committee duly designated by the Board of Directors (in which
designation directors who are parties may participate), consisting solely of two
(2) or more directors not at the time parties to the proceeding, (c) by
independent special legal counsel, (i) selected by the Board of Directors or its
committee in the manner described in clause (a) or (b) of this paragraph, or
(ii) if a quorum of the board cannot be obtained under clause (a) or (b) of this
paragraph, selected by a majority vote of the full Board of Directors (in which
selection directors who are parties may participate) or; (d) by the
shareholders, but shares owned by or voted under the control of directors who
are at the time parties to the proceeding may not be voted on the determination.
The rights to indemnification and to the advancement of expenses
conferred in Sections (A) and (B) of this Article XI 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.
(C) If a claim under Section (A) or (B) of this Article XI is not paid
in full by the Corporation within sixty (60) 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 (20) 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
(1) 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 (2) 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 TBCA. Authorization of indemnification and
evaluation as to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except that if the
determination is made by special legal counsel, authorization of indemnification
and evaluation as to reasonableness of expenses shall be made by those entitled
to select counsel under clause (c) of the second paragraph of Section (B). 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 XI or otherwise shall be on the
Corporation.
(D) The rights to indemnification and to the advancement of expenses
conferred in this Article XI shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, this Charter, Bylaws,
agreement, vote of shareholders or Disinterested Directors, as defined in
Article XIII of this Charter, 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 TBCA.
(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
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the provisions of this Article XI with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
None.
ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this registration statement on Form S-8 (numbering corresponds generally to the
Exhibit Table in Item 601 of Regulation S-K).
List of Exhibits (filed herewith unless otherwise noted):
10 Athens Federal Community Bank 401(k) Plan(1)
23.0 Consent of Hazlett, Lewis & Bieter, PLLC
24 Power of Attorney (contained on the signature pages).
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(1) Incorporated herein by reference to Exhibit 10.4 of the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-161967).
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 aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in the 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 Securities and Exchange 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; 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.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed or
furnished to the Securities and Exchange Commission by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this 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; and
(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.
(c)-(g) Not applicable.
(h) 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 SEC, such
indemnification is against public policy as expressed in such 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 such Act and will be governed by the final
adjudication of such issue.
The registrant has submitted or will submit the Plan and amendments
thereto to the IRS in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plan.
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SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the Securities Act of 1933, Athens
Bancshares Corporation 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, the City of Athens, State of Tennessee on January 7, 2010.
ATHENS BANCSHARES CORPORATION
By: /s/ Jeffrey L. Cunningham
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Jeffrey L. Cunningham
President and Chief Executive Officer
(principal executive officer)
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Cunningham) constitutes and appoints Jeffrey L.
Cunningham, as the true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him or her and in his or her 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 United States Securities and
Exchange Commission, 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, and 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, may lawfully do or cause to be
done by virtue hereof.
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.
Name Title Date
---- ----- ----
/s/ Jeffrey L. Cunningham President, Chief Executive January 7, 2010
- ------------------------------------ Officer and Director
Jeffrey L. Cunningham (principal executive officer)
/s/ Michael R. Hutsell Vice President, Chief Operating January 7, 2010
- ------------------------------------ Officer and Chief Financial Officer
Michael R. Hutsell (principal accounting and financial officer)
/s/ Dr. James L. Carter, Jr. Director January 7, 2010
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Dr. James L. Carter, Jr.
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Director
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Elaine M. Cathcart
/s/ G. Scott Hannah Director January 7, 2010
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G. Scott Hannah
/s/ G. Timothy Howard Director January 7, 2010
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G. Timothy Howard
/s/ M. Darrell Murray Director January 7, 2010
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M. Darrell Murray
/s/ Lyn B. Thompson Director January 7, 2010
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Lyn B. Thompson
/s/ Larry D. Wallace Director January 7, 2010
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Larry D. Wallace
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THE PLAN.
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the Athens Federal Community Bank
401(k) Plan have duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in Athens, Tennessee on
January 7, 2010.
ATHENS FEDERAL COMMUNITY BANK
401(K) PLAN
By: /s/ Michael R. Hutsell
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Michael R. Hutsell
Plan Administrator
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EXHIBIT INDEX
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Sequentially
Numbered
Exhibit No. Description Method of Filing Page Location
- ------------ ----------------------------------------- ----------------------------- ----------------
10 Athens Federal Community Bank 401(k) Plan Incorporated by reference.
23.0 Consent of Hazlett, Lewis & Bieter, PLLC Filed herewith.
24 Power of Attorney Located on the signature page.