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As filed with the Securities and Exchange Commission on _________ __, 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
MONTGOMERY FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Indiana 35-1962246
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
119 East Main Street, Crawfordsville, Indiana 47933
(Address of principal executive offices) (Zip Code)
MONTGOMERY SAVINGS, A FEDERAL ASSOCIATION
MANAGEMENT RECOGNITION PLAN
(Full title of the plan)
Martin Meyrowitz, P.C.
Daniel C. Holdgreiwe
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
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
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Common Stock, par value 13,988 shares $10.4375(1) $146,000(1) $40.59(1)
$.01 per share
Interests in Plan(2)
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(1) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating
the registration fee, at $10.4375 per share, which was the average of the
closing bid and asked prices of the common stock of Montgomery Financial
Corporation on September 20, 1999 as reported on the Nasdaq SmallCap
Market.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein. In accordance
with Rule 457(h)(2), no separate fee calculation is made for plan
interests.
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 Montgomery Savings Management
Recognition 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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by Montgomery
Financial Corporation (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. 0-29312) filed pursuant to the Securities and Exchange
Act of 1934, as amended (the "Exchange Act");
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act") since
the end of the fiscal year covered by audited financial statements
contained in the prospectus referred to in Item 3(a) above; and
(c) the description of the common stock, par value $.01 per share, of the
Registrant contained in the Registrant's Registration Statement on Form S-1
(File No. 333-24721) filed with the Commission on April 7, 1997 and all
amendments thereto or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant 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, Montgomery Financial Corporation, 119 East Main Street,
Crawfordsville, Indiana 47933, telephone number (765) 362-4710.
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.
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Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article X of the Company's Certificate of Incorporation requires the
Company to indemnify, to the fullest extent to which it is empowered to do so by
Indiana law, the directors and officers of the Company against any and all
liabilities, judgments, fines and reasonable settlements, costs, expenses and
attorneys' fees incurred in any actual, threatened or potential proceeding.
Article X also provides for the authority to purchase insurance against any
liability arising from an individual's status as a Director or Officer whether
or not the Company would have power to indemnify the individual against the same
liability.
Chapter 37 of the Business Corporation Law of the State of Indiana
authorizes a corporation's Board of Directors to grant indemnity to directors
and officers, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a proceeding
by or in the right of such corporation. Indemnification is permitted where such
person (i) was acting in good faith; (ii) was acting in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation or
other corporation or enterprise, as appropriate; and (iii) with respect to a
criminal proceeding, has no reasonable cause to believe his conduct was
unlawful.
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person being
indemnified has met the requisite standard of conduct. Such determination may be
made (i) by the Board of Directors of the Company by a majority vote of a quorum
consisting of directors not at the time parties to such proceeding; (ii) if such
a quorum cannot be obtained, then by a committee of such directors; or (iii) by
special legal counsel; or (iv) by the shareholders who are not directors who are
parties to the proceeding.
Chapter 37 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that he
is not entitled to be indemnified by the corporation against such expenses.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
Reference to Prior
Regulation S-K Filing or
Exhibit Exhibit Number
Number Document Attached Hereto
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4 Instruments Defining the Rights of Security
Holders, Including Indentures:
Certificate of Incorporation of Montgomery
Financial Corporation............................... *
Bylaws of Montgomery Financial Corporation............ *
Form of Stock Certificate of Montgomery
Financial Corporation............................... *
5 Opinion of Silver, Freedman & Taff, L.L.P............. 5
23 Consents of Experts and Counsel:
Consent of Olive, LLP certified public accountant..... 23
Consent of Silver, Freedman & Taff, L.L.P............. Included in Exhibit 5
24 Power of Attorney..................................... Contained on
Signature Page
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* Filed as exhibits to the Registrant's Registration Statement on Form S-1
(File No. 333-24721) filed with the Commission on April 7, 1997 and all
amendments thereto or reports filed for the purpose of updating such
description. All of such previously filed documents are hereby incorporated
herein by reference in accordance with Item 601 of Regulation S-K.
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.
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(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 and each filing of the employee benefit plan's annual
report pursuant to 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.
(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.
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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 Crawfordsville, State of Indiana, on
__________ __, 1999.
MONTGOMERY FINANCIAL CORPORATION
By: /s/ Earl F. Elliott
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Earl F. Elliot, 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 Earl F. Elliott, 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/ Earl F. Elliott /s/ J. Lee Walden
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Earl F. Elliott, President and J. Lee Walden, Director, Chief Operating
Chief Executive Officer Officer and Chief Financial Officer
Date: __________ ___, 1999 Date: __________ ___, 1999
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/s/ Mark E. Foster /s/ John E. Woodward
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Mark E. Foster, Director John E. Woodward, Director
Date: __________ ___, 1999 Date: __________ ___, 1999
/s/ C. Rex Henthorn /s/ Robert C. Wright
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C. Rex Henthorn, Director and Robert C. Wright, Director
Chairman of the Board
Date: __________ ___, 1999 Date: __________ ___, 1999
/s/ Joseph M. Malott
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Joseph M. Malott, Director
Date: __________ ___, 1999
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MONTGOMERY FINANCIAL CORPORATION
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II-7
EXHIBIT INDEX
Reference to Prior Filing or
Page Number in Sequentially
Exhibit Numbered Registration
Number Statement
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4 Instruments Defining the Rights of Security Holders,
Including Indentures:
Certificate of Incorporation of Montgomery Financial
Corporation............................................. *
Bylaws of Montgomery Financial Corporation................ *
Form of Stock Certificate of Montgomery Financial
Corporation............................................. *
5 Opinion of Silver, Freedman & Taff, L.L.P................. Exhibit 5
23 Consent of Olive, LLP .................................... Exhibit 23
Consent of Silver, Freedman & Taff, L.L.P................. Included in Exhibit 5
24 Power of Attorney......................................... Contained on signature page.
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* Filed as exhibits to the Registrant's Registration Statement on Form S-1
(File No. 333-24721) filed with the Commission on April 7, 1997 and all
amendments thereto or reports filed for the purpose of updating such
description. All of such previously filed documents are hereby incorporated
herein by reference in accordance with Item 601 of Regulation S-K.
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Exhibit 5
August __, 1999
Board of Directors
Montgomery Financial Corporation
119 East Main Street
Crawfordsville, Indiana 47933
Gentlemen:
We have acted as counsel to Montgomery Financial Corporation (the
"Corporation") in connection with the preparation and filing with the Securities
and Exchange Commission of a registration statement on Form S-8 under the
Securities Act of 1933 (the "Registration Statement") relating to 13,988 shares
of the Corporation's Common Stock, par value $.01 per share (the "Common
Stock"), to be offered pursuant to Montgomery Savings' Management Retention Plan
(the "Plan") and related interests in the Plan.
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan, the Corporation's
Certificate of Incorporation, Bylaws, and resolutions of its Board of Directors.
Based upon the foregoing, it is our opinion that the Common Stock and
interests in the Plan covered by the Registration Statement will, when issued
according to the terms of the Plan, be legally issued, fully paid and
non-assessable.
We hereby consent to the inclusion of our opinion as Exhibit 5 of this
Registration Statement on Form S-8. In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Silver, Freedman & Taff, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Montgomery Financial Corporation (the "Company") of our report dated
July 30, 1998 on the consolidated financial statements of the Company which
report is incorporated by reference in the Company's Annual Report on Form 10-K
for the three years ended June 30, 1998 filed pursuant to the Securities
Exchange Act of 1934.
OLIVE LLP
/s/ Olive LLP
Indianapolis, IN
September 21, 1999