Registration No. 333-_____
Filed July 19, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HARRINGTON FINANCIAL GROUP, INC.
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(Exact Name of Registrant as specified in its Articles of Incorporation)
INDIANA 48-1050267
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(State of incorporation) (IRS Employer Identification No.)
7300 College Boulevard
Suite 430
OVERLAND PARK, KANSAS 66210
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(Address of principal executive offices, including zip code)
SMITH BREEDEN ASSOCIATES, INC.
PROFIT SHARING AND 401(K) PLAN
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(Full Title of the Plans)
Copies to:
Craig J. Cerny Jeffrey R. Houle, Esq.
President Elias, Matz, Tiernan & Herrick L.L.P.
Harrington Financial Group, Inc. 734 15th Street, N.W.
7300 College Boulevard, Suite 430 Washington, D.C.
Overland Park, Kansas 66210 (202) 347-0300
(913) 451-1566
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(Name, address, and telephone number
of agent for service)
Page 1 of 78 pages
Index to Exhibits is located on page 6.
CALCULATION OF REGISTRATION FEE
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Title of
Securities Amount Proposed Maximum Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share(2) Offering Price(2) Fee(3)
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Common Stock, par
value $.125 350,000(1) $10.25 $3,587,500.00 $1,237.07
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(1) Represents an estimate of such presently undeterminable number of shares
as may be purchased with employer and employee contributions pursuant to
the Smith Breeden Associates, Inc. Profit Sharing and 401(k) Plan.
Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee,
which has been calculated pursuant to Rule 457(h). The Proposed Maximum
Offering Price Per Share is the average of the high and low prices of the
common stock, par value $.125 per share (the "Common Stock") of Harrington
Financial Group, Inc. (the "Company" or the "Registrant") on the Nasdaq
National Market on July 15, 1996.
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This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act of 1933,
as amended, and 17 C.F.R. Section 230.462.
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PART I
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended ("Securities Act"),
and the Note to Part I on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Prospectus, filed with the Commission as part
to Registration Statement on Form S-1 (Commission File No. 333-1556)
containing audited financial statements for the year ended June 30, 1995;
(b) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the financial
statements in the Prospectus referred to in clause (a) above;
(c) The description of the Common Stock of the Company contained
in the Company's Registration Statement on Form 8-A filed with the
Commission on March 11, 1996;
(d) All documents filed by the Company 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.
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 or is 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.
Not applicable since the Company's Common Stock is registered under
Section 12 of the Exchange Act.
ITEM. 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the Indiana Business Corporation Law,
of which Chapter 37 provides as follows:
23-1-37-1 "CORPORATION". As used in this chapter, "corporation" includes
any domestic or foreign predecessor entity of a corporation in a merger or other
transaction in which the predecessor's existence ceased upon consummation of the
transaction.
23-1-37-2 "DIRECTOR". As used in this chapter, "director" means an
individual who is or was a director of a corporation or an individual who, while
a director of a corporation, is or was serving at the corporation's request as a
director, officer, partner, member, manager, trustee, employee, or agent of
another foreign or domestic corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan, or other enterprise, whether for
profit or not. A director is considered to be serving an employee benefit plan
at the corporation's request if the director's duties to the corporation also
impose duties on, or otherwise involve services by, the director to the plan or
to participants in or beneficiaries of the plan. "Director" includes, unless
the context requires otherwise, the estate or personal representative of a
director.
23-1-37-3 "EXPENSES". As used in this chapter, "expenses" include counsel
fees.
23-1-37-4 "LIABILITY". As used in this chapter, "liability" means the
obligation to pay a judgment, settlement, penalty, fine (including an excise tax
assessed with respect to an employee benefit plan), or reasonable expenses
incurred with respect to a proceeding.
23-1-37-5 "OFFICIAL CAPACITY". As used in this chapter, "official
capacity" means:
(1) when used with respect to a director, the office of director in a
corporation; and
(2) when used with respect to an individual other than a director, as
contemplated in section 13 of this chapter, the office in a
corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the
corporation.
"Official capacity" does not include service for any other foreign or
domestic corporation or any partnership, limited liability company, joint
venture, trust, employee benefit plan, or other enterprise, whether for profit
or not.
23-1-37-6 "PARTY". As used in this chapter, "party" includes an
individual who was, is, or is threatened to be made a named defendant or
respondent in a proceeding.
23-1-37-7 "PROCEEDING". As used in this chapter, "proceeding" means any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative and whether formal or informal.
23-1-37-8 "PERMISSIVE INDEMNIFICATION".
(a) A corporation may indemnify an individual made a party to a proceeding
because the individual is or was a director against liability incurred in the
proceeding if:
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed:
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(A) in the case of conduct in the individual's official
capacity with the corporation, that the individual's
conduct was in its best interests; and
(B) in all other cases, that the individual's conduct was at
least not opposed to its best interests; and
(3) in the case of any criminal proceeding, the individual either:
(A) had reasonable cause to believe the individual's conduct
was lawful; or
(B) had no reasonable cause to believe the individual's conduct
was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
23-1-37-9 "MANDATORY INDEMNIFICATION". Unless limited by its articles of
incorporation, a corporation shall indemnify a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which the director was a party because the director is or was a director of the
corporation against reasonable expenses incurred by the director in connection
with the proceeding.
23-1-37-10 "ADVANCE INDEMNIFICATION".
(a) A corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding if:
(1) the director furnishes the corporation a written affirmation of
the director's good faith belief that the director has met the
standard of conduct described in section 8 of this chapter;
(2) the director furnishes the corporation a written undertaking,
executed personally or on the director's behalf, to repay the
advance if it is ultimately determined that the director did not
meet the standard of conduct; and
(3) a determination is made that the facts then known to those making
the determination would not preclude indemnification under this
chapter.
(b) The undertaking required by subsection (a)(2) must be an unlimited
general obligation of the director but need not be secured and may be accepted
without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this section shall
be made in the manner specified in section 12 of this chapter.
23-1-37-11 "APPLICATION FOR INDEMNIFICATION". Unless a corporation's
articles of incorporation provide otherwise, a director of the corporation who
is a party to a proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction. On receipt of an
application, the court after giving any notice the court considers necessary may
order indemnification if it determines:
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(1) the director is entitled to mandatory indemnification under section 9
of this chapter, in which case the court shall also order the corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification; or
(2) the director is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not the director met the
standard of conduct set forth in section 8 of this chapter.
23-1-37-12 PROCEDURE FOR DETERMINING INDEMNIFICATION.
(a) A corporation may not indemnify a director under section 8 of this
chapter unless authorized in the specific case after a determination has been
made that indemnification of the director is permissible in the circumstances
because the director has met the standard of conduct set forth in section 8 of
this chapter.
(b) The determination shall be made by any one (1) of the following
procedures:
(1) By the board of directors by majority vote of a quorum consisting
of directors not at the time parties to the proceeding.
(2) If a quorum cannot be obtained under subdivision (1), 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.
(3) By special legal counsel:
(A) selected by the board of directors or its committee in the
manner prescribed in subdivision (1) or (2); or
(B) if a quorum of the board of directors cannot be obtained
under subdivision (1) and a committee cannot be designated
under subdivision (2), selected by majority vote of the
full board of directors (in which selection directors who
are parties may participate).
(4) 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.
(c) 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 under subsection
(b)(3) to select counsel.
23-1-37-13 INDEMNIFICATION OF OFFICERS, AGENTS AND EMPLOYEES. Unless a
corporation's articles of incorporation provide otherwise:
(1) an officer of the corporation, whether or not a director, is entitled
to mandatory indemnification under section 9 of this chapter, and is entitled to
apply for court-ordered indemnification under section 11 of this chapter, in
each case to the same extent as a director;
(2) the corporation may indemnify and advance expenses under this chapter
to an officer, employee, or agent of the corporation, whether or not a director,
to the same extent as to a director; and
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(3) a corporation may also indemnify and advance expenses to an officer,
employee, or agent, whether or not a director, to the extent, consistent with
public policy, that may be provided by its articles of incorporation, bylaws,
general or specific action of its board of directors, or contract.
23-1-37-14 INSURANCE. A corporation may purchase and maintain insurance
on behalf of an individual who is or was a director, officer, employee, or agent
of the corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, member, manager, trustee, employee, or agent of another
foreign or domestic corporation, partnership, limited liability company, joint
venture, trust, employee benefit plan, or other enterprise, against liability
asserted against or incurred by the individual in that capacity or arising from
the individual's status as a director, officer, member, manager, employee, or
agent, whether or not the corporation would have power to indemnify the
individual against the same liability under section 8 or 9 of this chapter.
The:
(1) corporation may purchase insurance under this section from; and
(2) insurance purchased under this section may be reinsured in whole or in
part by; an insurer that is owned by or otherwise affiliated with the
corporation whether the insurer does or does not do business with other persons.
23-1-37-15 INDEMNIFICATION UNDER CHAPTER NOT EXCLUSIVE.
(a) The indemnification and advance for expenses provided for or
authorized by this chapter does not exclude any other rights to indemnification
and advance for expenses that a person may have under:
(1) a corporation's articles of incorporation or bylaws;
(2) a resolution of the board of directors or of the shareholders; or
(3) any other authorization, whenever adopted, after notice, by a
majority vote of all the voting shares then issued and outstanding.
(b) If the articles of incorporation, bylaws, resolutions of the board of
directors or of the shareholders, or other duly adopted authorization of
indemnification or advance for expenses limit indemnification or advance for
expenses, indemnification and advance for expenses are valid only to the extent
consistent with the articles, bylaws, resolution of the board of directors or of
the shareholders, or other duly adopted authorization of indemnification or
advance for expenses.
(c) This chapter does not limit a corporation's power to pay or reimburse
expenses incurred by a director, officer, employee, or agent in connection with
the person's appearance as a witness in a proceeding at a time when the person
has not been made a named defendant or respondent to the proceeding.
Article IX of the Registrant's Amended and Restated Articles of
Incorporation provide as follows:
PERSONAL LIABILITY OF DIRECTORS. A director of the Corporation shall not
be personally liable for monetary damages for any action taken or any failure to
take any action as a director except to the extent that by law a director's
liability for monetary damages may not be limited.
INDEMNIFICATION. The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, except actions by or in the right of the
Corporation, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director or officer of the Corporation,
against expenses (including attorney's fees),
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judgments, fines, excise taxes and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit
or proceeding to the full extent permissible under Indiana law.
ADVANCEMENT OF EXPENSES. Reasonable expenses incurred by an officer,
director, employee or agent of the Corporation in defending a civil or criminal
action, suit or proceeding described above in "indemnification" shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding to the full extent permitted under Indiana law.
OTHER RIGHTS. The indemnification and advancement of expenses provided by
or pursuant to this Article 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 Articles of Incorporation, any insurance or other
agreement, vote of shareholders or directors or otherwise, both as to actions in
their official capacity and as to actions in another capacity while holding an
office, and shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit to the heirs, executors and
administrators of such person provided that no indemnification shall be made to
or on behalf of an individual if a judgment or other final adjudication
establishes that his act or omissions (i) were in breach of his duty of loyalty
to the Corporation or its stockholders, (ii) were not in good faith or involved
a knowing violation of law or (iii) resulted in the receipt of an improper
personal benefit.
INSURANCE. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against any liability asserted against him and
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 these Articles of Incorporation.
MODIFICATION. The duties of the Corporation to indemnify and to advance
expenses to a director or officer provided in the Article shall be in the nature
of a contract between the Corporation and each such director or officer, and no
amendment or repeal of any provision of this Article shall alter, to the
determent of such director or officer, 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 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable since no restricted securities will be reoffered or resold
pursuant to this Registration Statement.
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ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K):
NO. EXHIBIT PAGE
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4 Common Stock Certificate* --
23.2 Consent of Deloitte & Touche LLP E-1
24 Power of attorney for any subsequent
amendments is located in the signature pages --
99.1 Smith Breeden Associates, Inc. Profit Sharing
and 401(k) Plan E-2
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* Incorporated by reference from the Company's Registration Statement on
Form S-1 (Commission File No. 333-1556) filed with the Commission on
February 20, 1996.
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, (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, 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 in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a post-
effective amendment by those clauses is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, 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.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 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.
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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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against 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 questions whether such indemnification by it is against public
policy expressed in the Securities 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 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 Overland Park, State of Indiana, on
this 18th day of July, 1996.
HARRINGTON FINANCIAL GROUP, INC.
By: /s/ Craig J. Cerny
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Craig J. Cerny, President
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 Craig J. Cerny his or her true
and lawful attorney, with full power to sign for such 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.
/s/ Craig J. Cerny July 18, 1996
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Craig J. Cerny
President
/s/ Catherine A. Habschmidt July 18, 1996
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Catherine A. Habschmidt
Chief Financial Officer
and Treasurer
/s/ William F. Quinn, Jr. July 18, 1996
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William F. Quinn, Jr.
Executive Vice President
and Director
/s/ Douglas T. Breeden July 18, 1996
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Douglas T. Breeden
Chairman of the Board
/s/ Gerald J. Madigan July 18, 1996
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Gerald J. Madigan
Director
/s/ Michael J. Giarla July 18, 1996
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Michael J. Giarla
Director
/s/ Stephen A. Eason July 18, 1996
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Stephen A. Eason
Director
/s/ Lawrence E. Golaszewski July 18, 1996
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Lawrence E. Golaszewski
Director
/s/ David F. Harper July 18, 1996
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David F. Harper
Director
/s/ Stanley J. Kon July 18, 1996
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Stanley J. Kon
Director
/s/ John J. McConnell July 18, 1996
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John J. McConnell
Director
Pursuant to the requirements of the Securities Act of 1933, the trustee
who administers the employee benefit plan has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chapel Hill, State of North Carolina, on July 18,
1996.
SMITH BREEDEN ASSOCIATES, INC.
PROFIT SHARING AND 401(K) PLAN
By: /s/ Marianthe S. Mewkill
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Marianthe S. Mewkill, Trustee