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As filed with the Securities and Exchange Commission on February 5, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT ON
FORM S-8
UNDER THE SECURITIES ACT OF 1933
MSB FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
Maryland 38-3203510
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
107 North Park Street, Marshall, Michigan 49068
(Address of principal executive offices) (Zip Code)
MSB FINANCIAL, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Michael S. Sadow, P.C.
John S. Pettibone III, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
7th Floor, East Tower
1100 New York Avenue, NW
Washington, DC 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered(1) per share offering price registration fee
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Common Stock, $.01 par value 67,848 shares(2) (3) $1,090,557.33(3) $303.18(3)
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of
certain events specified in the Plan, may become subject to the Plan.
(2) The number of shares to which Awards may be made under the Plan has
been adjusted to reflect a 10% stock dividend declared in July 1998.
(3) Pursuant to Rule 457(h), of the 67,848 shares being registered hereby
(i) 46,200 shares are subject to options with an exercise price of
$16.3636 per share ($755,998.32 in the aggregate) and (ii) 21,648
shares are subject to options with an exercise price of $15.4545 per
share ($334,559.01 in the aggregate).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the MSB Financial, Inc. 1997 Stock
Option and Incentive Plan (the "Plan") as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the registration
statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously or concurrently filed by MSB Financial,
Inc. (the "Company") with the Commission are hereby incorporated by reference in
this Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1998 (File No. 0-24898) filed pursuant to the Securities and Exchange
Act of 1934, as amended (the "Exchange Act");
(b) the quarterly report on Form 10-QSB of the Company for the quarterly
period ended September 30, 1998 (File No. 0-24898); and
(c) the description of the common stock, par value $.01 per share, of the
Company contained in the Form 8-A filed with the Commission on October 3, 1995
(File No. 0-24898) and all amendments thereto or reports filed for the purpose
of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference into this registration
statement and to be a part thereof from the date of the filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this registration statement and the prospectus to
the extent that a statement contained herein or therein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein or therein 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 and the
prospectus.
The Company shall furnish without charge to each person to whom the
prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to the
Secretary, MSB Financial, Inc., 107 North Park Street, Marshall, Michigan 49067,
telephone number (616) 781-5103.
All information appearing in this registration statement and the prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities.
Not applicable
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The articles of incorporation of the Company (the "Articles of
Incorporation") provide generally that a director or officer of the Company (and
other employees and agents of the Company to the extent authorized by the board
and permitted by law) shall be indemnified by the Company to the fullest extent
authorized by the General Corporation Law of Maryland. Maryland law provides
that a director, officer, employee or agent will be indemnified provided that
the act or omission of the person was not material to the matter giving rise to
the proceedings, the person did not actually receive an improper personal
benefit in money, property, or services, or in any criminal proceedings, the
person had no reasonable cause to believe that the act or omission was unlawful.
The Articles of Incorporation and Maryland law also provide that the
indemnification provisions of the Articles of Incorporation and Maryland law are
not exclusive of any other right which a person seeking indemnification may have
or later acquire under any statute, provision of the Articles of Incorporation,
bylaws of the Company, agreement, vote of stockholders or disinterested
directors or otherwise.
These provisions may have the effect of deterring shareholder derivative
actions, since the Company may ultimately be responsible for expenses for both
parties to the action. A similar effect would not be expected for third-party
claims.
In addition, the Articles of Incorporation and Maryland law also provide
that the Company may maintain insurance, at its expense, to protect itself and
any director, officer, employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Company has the power to indemnify such
person against such expense, liability or loss under the General Corporation Law
of Maryland. The Company has purchased insurance that insures directors and
officers against certain liabilities in connection with the performance of their
duties as directors and officers, and that provides for payment to the Company
of costs incurred by it in indemnifying its directors and officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) 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 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.
(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.
(b) The undersigned registrant hereby undertakes that, for 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 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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 such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and the Registrant has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Marshall, State of Michigan, on
February 3, 1999.
MSB FINANCIAL, INC.,
a Maryland corporation
By: /s/ Charles B. Cook
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Charles B. Cook, President and
Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Charles B. Cook, his true and lawful
attorney-in-fact and agent, with full power of substitution and re-substitution,
for him and in his 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 all other
documents in connection therewith, with the 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 thing 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 said attorney-in-fact and agent or his substitutes or
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 below by the following persons in the
capacities and on the date as indicated.
/s/ Charles B. Cook
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Charles B. Cook, President, Chief Executive Aart VanElst, Chairman of the Board
Officer and Chief Financial Officer
(Principal Executive, Financial and
Accounting Officer)
Date: February 3, 1999 Date:
/s/ John W. Yakimow /s/ Martin L. Mitchell
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John W. Yakimow, Director Martin L. Mitchell, Director
Date: February 3, 1999 Date: February 3, 1999
/s/ Richard L. Dobbins /s/ J. Thomas Schaeffer
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Richard L. Dobbins, Director J. Thomas Schaeffer, Director
Date: February 3, 1999 Date: February 3, 1999
/s/ Karl F. Loomis
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Karl F. Loomis, Director
Date: February 3, 1999
EXHIBIT INDEX
Exhibit
Number
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Exhibit 4.1 Articles of Incorporation of MSB Financial, Inc.
Exhibit 4.2 Bylaws of MSB Financial, Inc.
Exhibit 4.3 Form of Stock Certificate of MSB Financial, Inc.
Exhibit 5 Opinion of Silver, Freedman & Taff, L.L.P.
Exhibit 23.1 Consent of Crowe, Chizek and Company LLP
Exhibit 23.2 Consent of Silver, Freedman & Taff, L.L.P.
Exhibit 24 Power of Attorney (contained on signature page)