As filed with the Securities and
Exchange Commission on November 23, 1999 Registration No. 333-
---------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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REPUBLIC BANCORP, INC.
(Exact name of registrant as specified in its charter)
Kentucky 61-0862051
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
601 West Market Street
Louisville, Kentucky 40202
(Address of Principal Executive Offices)
1997 Director Options
Republic Bancorp, Inc. 1995 Stock Option Plan
(Full Title of the Plans)
Copy to:
Michael Ringswald, General Counsel Cynthia W. Young, Esq.
Republic Bancorp, Inc. Wyatt, Tarrant & Combs
601 West Market Street 2800 Citizens Plaza
Louisville, Kentucky 40202 Louisville, Kentucky 40202
(Name and address of agent for service)
(502) 584-3600
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed maximum Proposed maximum Amount of
securities To be offering price aggregate offering Registration
to be registered Registered per share(1) price1 fee
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Class A Common Stock, 2,135,000(2) shares $8.5625 $16,518,156.25 $4,592.05
no par value
Class B Common Stock, 194,500(2) shares $8.5625 $1,665,406.25 $ 462.98
no par value
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1 Estimated solely for the purpose of computing the registration fee pursuant to
Rule 457(c) and (h) based on [1] the average of the high and low prices of the
Class A Common Stock on the Nasdaq National Market System as of November 18,
1999 ($8-3/4 and $8-3/8), with respect to the 1,902,500 shares of Class A Common
Stock and 194,500 shares of Class B Common Stock issuable under the 1995 Stock
Option Plan, and [2] the actual exercise price ($6.00 per share) with respect to
the 38,000 shares of Class A Common Stock issuable under the 1997 Director
Options. The Class B Common Stock is convertible, on a one-to-one basis, into
Class A Common Stock and, since it has no established trading market, is assumed
to have the same price as the Class A Common Stock, for purposes of the
calculation. In accordance with Rule 457(i), no amount is shown with respect to
the 194,500 shares of Class A Common Stock issuable upon conversion of the Class
B Common Stock, which are also being registered hereby.
2 Includes 1,902,500 shares of Class A Common Stock and 194,500 shares of Class
B Common Stock issuable under the 1995 Stock Option Plan and 38,000 shares of
Class A Common Stock issuable under the 1997 Director Options, in each case
subject to adjustment as provided in the 1995 Stock Option Plan. Also includes
194,500 shares of Class A Common Stock issuable upon conversion of such shares
of Class B Common Stock. The Registrant also registers hereby such indeterminate
number of additional shares of Class A Common Stock and Class B Common Stock as
may be required to cover antidilutive adjustments in accordance with the 1995
Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference the following documents
in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999;
4. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999; and
5. The description of the Class A Common Stock of the Registrant
contained in the Registrant's Registration Statement on Form
8-A, including any amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), 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 part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The Class A Common Stock of the Registrant is registered under Section
12(g) of the Exchange Act. The following is a description of the Class B Common
Stock of the Registrant:
DESCRIPTION OF CLASS B COMMON STOCK
The rights of the Class B Common Stock are governed by the Articles of
Incorporation and Bylaws of the Registrant and the Kentucky Business Corporation
Act.
The following briefly outlines certain rights of the Class B Common
Stock:
VOTING RIGHTS. The Class B Common Stock carries the right to 10 votes
per share on all matters presented to a vote of the shareholders of the
Registrant. The Class B Common Stock votes together with the Class A Common
Stock (which carries the right to one vote per share) as a single voting group
unless Kentucky law requires separate voting on a particular matter.
In the election of directors, cumulative voting rules apply. Under
cumulative voting, each shareholder is entitled to vote the number of votes of
the shares owned by him or her on the record date multiplied by the number of
directors to be elected. Each shareholder may cast all of his or her votes for a
single nominee or may distribute his votes in any manner among as many
candidates as the shareholder sees fit.
The Registrant's Articles of Incorporation limit the right of
shareholders to call a special meeting of the shareholders. Under the Articles
of Incorporation, special meetings of shareholders may only be called by the
board of directors or shareholders owning shares representing more than 50% of
the votes entitled to be cast by all shareholders of the Registrant. The
affirmative vote of shareholders owning more than 50% of the voting power of the
then outstanding voting stock is required to amend this provision of the
Articles of Incorporation.
DIVIDENDS. Subject to any preferential rights of any shares of
Preferred Stock then outstanding, and applicable requirements of law, the Class
B Common Stock is entitled to dividends from funds legally available therefor
if, as and when declared by the board of directors of the Registrant.
If any dividend is paid with respect to the Class B Common Stock, a
dividend of like kind must be declared and paid contemporaneously with respect
to the Class A Common Stock. If a cash dividend is paid on the Class B Common
Stock, a cash dividend must be paid on the Class A Common Stock in an amount per
share equal to 110% of the dividend paid per share on the Class B Common Stock
(rounded to the nearest $.0001). If a stock dividend, payable in shares of Class
B Common Stock, is paid on the Class B Common Stock, a stock dividend, payable
in shares of Class A Common Stock, must be paid on the Class A Common Stock at
the same per share rate. If a dividend is paid on the Class B Common Stock other
than in cash or shares of Class B Common Stock, an equal dividend, on a per
share basis, must be paid on the Class A Common Stock.
The instruments under which the securities of the Registrant's
subsidiary, Republic Capital Trust, are outstanding prohibit the payment of
dividends on the Registrant's common stock if the Registrant elects to defer
payments on the trust subsidiary's securities, as permitted by those
instruments.
CONVERSION. The Class B Common Stock is convertible into shares of
Class A Common Stock on a one-for-one basis. Only whole shares of Class B Common
Stock can be converted. Holders cannot convert a fractional share of Class B
Common Stock into a fractional share of Class A Common Stock.
To convert shares of Class B Common Stock into shares of Class A Common
Stock, the record holder of the Class B Common Stock must
< endorse the stock certificate (or certificates) representing the shares
of Class B Common Stock for transfer,
< surrender the endorsed certificate (or certificates) at the office of
the Registrant or of any transfer agent for the Class B Common Stock,
and
< give written notice to the Registrant at such office that the holder is
electing to convert the shares.
The Registrant will, as soon as practicable thereafter, issue and deliver at
such office to the converting shareholder a certificate for the shares of Class
A Common Stock the shareholder is entitled to receive as a result of the
conversion. The conversion of shares of Class B Common Stock into Class A Common
Stock will be deemed to have been made immediately prior to the close of
business on the date of surrender of the shares of Class B Common Stock to be
converted, and the converting shareholder will be treated for all purposes as
the record holder of such shares of Class A Common Stock at such time on such
date.
The Registrant is required to reserve and keep available out of its
authorized but unissued shares of Class A Common Stock, solely for the purpose
of effecting the conversion of the shares of the Class B Common Stock, a
sufficient number of shares of Class A Common Stock to effect the conversion of
all outstanding shares of the Class B Common Stock. If at any time the number of
authorized but unissued shares of Class A Common Stock is not sufficient to
effect the conversion of all of the then outstanding shares of the Class B
Common Stock, the Registrant will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Class A Common Stock to such number of shares as shall be sufficient
for such purpose, including, without limitation, engaging in best efforts to
obtain the requisite shareholder approval of any necessary amendment to the
Registrant's Articles of Incorporation.
PREEMPTIVE RIGHTS. Holders of the Class B Common Stock are not entitled
to preemptive rights with respect to any shares which may be issued.
REDEMPTION. The Class B Common Stock is not subject to redemption or
to any sinking fund.
CONVERSION OR REDEMPTION. The Class B Common Stock is convertible into
shares of Class A Common Stock on a one-for-one basis. The Class B Common Stock
is not subject to redemption or to any sinking fund.
PREEMPTIVE RIGHTS. Holders of the Class B Common Stock are not entitled
to preemptive rights with respect to any shares which may be issued.
DISSOLUTION. If the Registrant is dissolved, the holders of the Class B
Common Stock, together with the holders of the Class A Common Stock, will be
entitled to receive, pro rata based on the number of shares held, the remaining
assets of the Registrant after the satisfaction of the Registrants liabilities
and any preferential liquidation rights of any then outstanding shares of
Preferred Stock of the Registrant.
ASSESSABILITY. Shares of Class B Common Stock issued against receipt of
the consideration authorized by the board of directors consisting of property
paid or services rendered are not subject to liability for further calls or to
assessment by the Registrant or for liabilities of the Registrant imposed on its
shareholders under Kentucky statutes.
ANTI-DILUTION PROVISION. The Registrant's Articles of Incorporation
require that, if there is a change in the number of issued and outstanding
shares of Class A Common Stock as a result of share split, reverse share split,
share dividend or similar recapitalization (a "Capital Change"), then a Capital
Change of like kind must be made in the issued and outstanding shares of Class B
Common Stock. Likewise, if there is a Capital Change in the issued and
outstanding shares of Class B Common Stock, a Capital Change of like kind must
occur in the issued and outstanding shares of Class A Common Stock.
OTHER ASPECTS. The Articles of Incorporation of the Registrant do not
contain any restriction on the alienability of the Class B Common Stock or any
provision discriminating against any existing or prospective holder of shares of
Class B Common Stock as a result of such shareholder owning a substantial amount
of securities.
In addition to the Class A and the Class B Common Stock, the Registrant
is also authorized to issue 100,000 shares of Preferred Stock. The Preferred
Stock is preferred as to the payment of dividends over the Class B Common Stock
and shall be preferred over the Class B Common Stock upon liquidation,
dissolution or winding up of the affairs of the Registrant. The Registrant's
Articles of Incorporation authorize the board of directors of the Registrant to
establish series of Preferred Stock and to fix the relative rights and
preferences of shares of the series established. The authority vested in the
board of directors by the Articles of Incorporation includes the authority,
within the limitations imposed by law and the Articles of Incorporation, to fix
and determine as to each series of Preferred Stock:
[1] The voting rights and powers, if any, of the holders of shares
of such series;
[2] The number of shares and designation of such series;
[3] The annual dividend rate and whether cumulative, noncumulative, or
partially cumulative;
[4] The prices at which, and the terms and conditions on which, shares
of such series may be redeemed;
[5] The amounts payable on shares of such series in the event of
any voluntary or involuntary liquidation, dissolution, or
winding up of the affairs of the Registrant;
[6] Whether the shares of such series shall have a preference, as
to the payment of dividends or otherwise, over the shares of
any other series;
[7] The terms, if any, upon which shares of such series may be
convertible into, or exchangeable for, shares of any other
class or classes or of any other series of the same or any
other class or classes, including the price or prices and the
rate of conversion or exchange, any adjustments thereof, and
all other terms and conditions;
[8] The sinking fund provisions, if any, for the redemption or purchase
of shares of such series; and
[9] Such other provisions as may be fixed by the board of directors of
the Registrant pursuant to Kentucky law.
To the extent the board of directors of the Registrant exercises this
authority granted it in the Articles of Incorporation, the fixing of the
relative rights, preferences and limitations of shares of Preferred Stock,
vis-a-vis the Class B Common Stock, could have the effect of modifying the
rights of holders of Class B Common Stock. The issuance of Preferred Stock may
have the effect of delaying, deferring or preventing a change in control of the
Registrant without further action by shareholders and may adversely affect the
voting and other rights of the holders of Class B Common Stock.
The Preferred Stock and, because of its voting rights, the Class B
Common Stock could be deemed to have an anti-takeover effect. If a hostile
takeover situation should arise, shares of Class B Common Stock and/or Preferred
Stock could be issued to purchasers sympathetic with the Registrant's management
or others in such a way as to render more difficult or to discourage a merger,
tender offer, proxy contest, the assumption of control by a holder of a large
block of the Registrant's securities or the removal of incumbent management.
The effects of the issuance of a series of the Preferred Stock on the
holders of Class B Common Stock could include, among other things, (i) reduction
of the amount otherwise available for payments of dividends on Class B Common
Stock if dividends are payable on the series of Preferred Stock; (ii)
restrictions on dividends on Class B Common Stock if dividends on the series of
Preferred Stock are in arrears; (iii) dilution of the voting power of Class B
Common Stock if the series of Preferred Stock has voting rights, including a
possible "veto" power if the series of Preferred Stock has class voting rights;
(iv) dilution of the equity interest of holders of Class B Common Stock if the
series of Preferred Stock is convertible, and is converted, into Class B Common
Stock; and (v) restrictions on the rights of holders of Class B Common Stock to
share in the Registrant's assets upon liquidation until satisfaction of any
liquidation preference granted to the holders of the series of Preferred Stock.
Holders of Class B Common Stock have no preemptive rights to purchase or
otherwise acquire any Preferred Stock that may be issued.
ELIMINATION OF CERTAIN LIABILITIES AND INDEMNIFICATION RIGHTS. The
Articles of Incorporation of the Registrant limit the liability of directors to
the Registrant and its shareholders to the maximum extent permitted by
applicable law. Under Section 271B.2-020 of the Kentucky Business Corporation
Act, the personal liability of a director may not be eliminated or limited for
the following actions:
(1) for any transaction in which the director's personal financial
interest is in conflict with the financial interests of the
corporation or its shareholders;
(2) for acts or omissions not in good faith or which involve
intentional misconduct or are known by the director to violate
law;
(3) actions involving an unlawful distribution in violation of
KRS 271B.8-330; and
(4) for any transaction from which the director derived an improper
personal benefit.
If the Kentucky General Assembly expands the types of director liabilities that
can be eliminated or limited, the personal liability of directors of the
Registrant under the Articles of Incorporation will likewise be eliminated or
limited without any further action by shareholders.
Under Kentucky law, a corporation has broad powers of indemnification.
A person may be indemnified for judgments, penalties, fines, settlements, and
reasonable expenses incurred by that person in proceedings in connection with
the person's official capacity in the corporation. Indemnification against
reasonable legal expenses incurred by a person in such a proceeding is mandatory
when the person is wholly successful in the defense of the proceeding. The
Bylaws of the Registrant also require the Registrant to indemnify, and permit
the Registrant to advance expenses to, all directors, officers, employees or
agents of the Registrant who were or are threatened to be made a defendant or
respondent to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he or she is or was a director, officer, employee or agent of the
Registrant, to the fullest extent that is expressly permitted or required by the
Kentucky statutes and all other applicable law.
CONFLICT OF INTEREST TRANSACTIONS. The Articles of Incorporation
provide that the Registrant may enter into conflict of interest transactions
with officers, directors and/or shareholders. According to the Articles of
Incorporation, a conflict of interest transaction that is approved by
shareholders holding a majority of the voting power is valid and binding as
though ratified by every shareholder of the Registrant.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Class A Common Stock and
Class B Common Stock being offered by the Registration Statement will be passed
on for the Registrant by the law firm of Wyatt, Tarrant & Combs. Wyatt, Tarrant
& Combs provides legal services from time to time to the Registrant, and
partners of Wyatt, Tarrant & Combs own shares of the Registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Registrant require the Registrant to indemnify, and
permit the Registrant to advance expenses to, all directors, officers, employees
or agents of the Registrant who were or are threatened to be made a defendant or
respondent to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that he or she is or was a director, officer, employee or agent of the
Registrant, to the fullest extent that is expressly permitted or required by the
Kentucky statutes and all other applicable law.
The circumstances under which Kentucky law requires or permits a
corporation to indemnify its directors, officers, employees and/or agents are
set forth at KRS 271B.8-500, et seq.
Generally, under KRS 271B.8-500 ET SEQ., a corporation may indemnify an
individual made a party to a proceeding because he is or was a director or
officer against liability incurred in the proceeding if:
[1] He conducted himself in good faith; and
[2] He reasonably believed
[a] in the case of conduct in his official capacity with the
corporation that his conduct was in its best interests; and
[b] in all other cases, that his conduct was at least not
opposed to its best interests; and
[c] in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
A corporation may not indemnify a director or officer: [1] in
connection with a proceeding by or in the right of the corporation in which the
director or officer was adjudged liable to the corporation; or [2] in connection
with any other proceeding charging improper personal benefit to him, whether or
not involving action in his official capacity, in which he was adjudged liable
on the basis that personal benefit was improperly received by him.
Indemnification permitted in connection with a proceeding by or in the
right of the corporation is limited to reasonable expenses incurred in
connection with the proceeding.
The Registrant may provide liability insurance for each director and officer
for certain losses arising from claims or changes made against them while acting
in their capabilities as directors or officers of Registrant, whether or not
Registrant would have the power to indemnify such person against such liability,
as permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits listed on the Exhibit Index appearing on page 14 of this
Registration Statement are hereby incorporated by reference.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
< To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
< To include any prospectus required by Section 10(a)(3) of the Act;
< 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;
< 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.A[1] and 1.A[2] do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
< 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.
< To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes 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 Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 directors, officers and controlling persons of
the Registrant, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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 Louisville, Commonwealth of Kentucky, on November 11,
1999.
REPUBLIC BANCORP, INC.
By /s/ Steven E. Trager
---------------------------------------
Steven E. Trager, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Steven E. Trager and Bill Petter, and each of
them, with the power to act without the other, his or her true and lawful
attorney-in-facts and agents, 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 and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons in the capacities indicated and on the dates indicated:
(Signature) (Title) (Date)
/s/ Andy Anderson Director November 11, 1999
----------------------------
Andy Anderson
/s/ Larry M. Hayes Director November 11, 1999
----------------------------
Larry M. Hayes
/s/ Bill Petter Chief Operating Officer, November 11, 1999
---------------------------- Vice Chairman and Director
Bill Petter
/s/ Sandra Metts Snowden Director November 11, 1999
----------------------------
Sandra Metts Snowden
/s/ R. Wayne Stratton Director November 11, 1999
----------------------------
R. Wayne Stratton
/s/ Samuel G. Swope Director November 11, 1999
----------------------------
Samuel G. Swope
/s/ A. Scott Trager Vice Chairman and Director November 11, 1999
----------------------------
A. Scott Trager
/s/ Bernard M. Trager Chairman & Director November 11, 1999
----------------------------
Bernard M. Trager
/s/ Steven E. Trager Chief Executive Officer and Director November 11, 1999
----------------------------
Steven E. Trager
/s/ Mark A. Vogt Chief Financial and November 11, 1999
---------------------------- Chief Accounting Officer
Mark A. Vogt
Exhibit Index
4.1 Articles of Incorporation of Republic Bancorp, Inc., as amended
(incorporated by reference to Exhibit 3(i) to the Registration Statement on
Form S-1 of Republic Bancorp, Inc. (Registration No. 333-56583), filed with
the Securities and Exchange Commission on July 7, 1998 pursuant to the
Securities Exchange Act of 1933)
4.2 Bylaws of Republic Bancorp, Inc., as amended (incorporated by reference to
Exhibit 3(ii) to the Registration Statement on Form S-1 of Republic
Bancorp, Inc. (Registration No. 333-56583), filed with the Securities and
Exchange Commission on July 20, 1998 pursuant to the Securities Exchange
Act of 1933)
5 Opinion of counsel
23.1 Consent of Crowe, Chizek and Company LLP
23.2 Consent of Wyatt, Tarrant & Combs (included in Exhibit 5)
24 Power of attorney (included on the signature page of the Registration
Statement)
99.1 1995 Stock Option Plan of Republic Bancorp, Inc.
99.2 Summary of terms of 1997 Director Options