As filed with the Securities and Exchange Commission on August 15, 2002
Registration No. 333-
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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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Charter Financial Corporation
(Exact name of registrant as specified in its charter)
United States 58-2659667
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
c/o CharterBank
600 Third Avenue
West Point, GA 31833
(706) 645-1391
(Address, including Zip Code, of principal executive offices)
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Charter Financial Corporation 2001 Stock Option Plan and
Charter Financial Corporation 2001 Recognition and Retention Plan
(Full title of the Plans)
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Robert L. Johnson
President and Chief Executive Officer
CharterBank
600 Third Avenue
West Point, GA 31833
(706) 645-1391
Copy to:
V. Gerard Comizio, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, NW, Suite 800
Washington, DC 20006
(202) 347-8400
(Name and address, including Zip Code, telephone number and area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
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Amount to be Registered(1) Proposed Maximum Offering Proposed Maximum Amount of
Title of Securities to be Price Per Share (2) Aggregate Offering Price Registration Fee
Registered (2)
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Common Stock, $.01 par value 555,027 $27.535 $15,282,668 $1,406.01
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(1) Based on the total number of shares of common stock of Charter Financial
Corporation (the "Company") reserved for issuance upon the exercise of
options granted pursuant to the Charter Financial Corporation 2001 Stock
Option Plan ("Option Plan") and the total number of shares of common stock
authorized for awards under the Charter Financial Corporation 2001
Recognition and Retention Plan (the "RRP"). There are 396,448 shares of
common stock reserved for awards under the Option Plan and 158,579 shares
authorized for awards under the RRP (collectively, the "Plans"). In
addition to such shares, this registration statement also covers an
undetermined number of shares of common stock of the Company that, by
reason of certain events specified in the Plans, may become issuable upon
exercise of options or grant of awards through the application of certain
anti-dilution provisions.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to which a
total of 555,027 restricted shares and shares that may be acquired upon
exercise of options granted in the future are deemed to be offered at
$27.535 per share, the average of the daily high and low sales prices of
common stock of the Company on the Nasdaq National Market System at the
close of trading on August 12, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such document
need not be filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended (the "Securities Act").
PART II
Item 3. Incorporation of Documents by Reference.
The following documents and information heretofore filed with the
Commission by the Registrant (File No. 333-57684) are incorporated by reference
in this registration statement:
(1) the description of the Registrant's common stock (the "Common Stock")
contained in the Registrant's Registration Statement on Form 8-A,
dated August 10, 2001;
(2) the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 2001; and
(3) the Registrant's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 2001, March 31, 2002 and June 30, 2002.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to 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 are incorporated
herein by reference, and such documents shall be deemed to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this prospectus to the
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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 statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Charter Financial Corporation will provide without charge to each
person to whom this Prospectus is delivered, upon request of any such person, a
copy of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents). Written requests should be directed to:
Curt Kollar, CharterBank, 600 Third Avenue, West Point, Georgia 31833. Telephone
requests may be directed to (706) 645-1391.
All information appearing in this registration statement and the
prospectuses is qualified in its entirety by the detailed information 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.
12 C.F.R. Section 545.121 of OTS Regulations sets forth the ability of a
federal savings & loan association to indemnify its officers and directors. This
section provides that a savings association shall indemnify any person against
whom an action is brought or threatened because that person is or was a
director, officer or employee of the association for: (1) any amount for which
that person becomes liable under a judgment if such action; and (2) reasonable
costs and expenses, including reasonable attorney's fees paid or incurred by
that person in defending or settling such action, or in enforcing his or her
rights under such section if he or she attains a favorable judgment in such
enforcement action.
Indemnification shall be made to such individuals if (1) final judgements
on the merits is in the individual's favor; or (2) in case of (i) settlement;
(ii) final judgement against the individual, or (iii) final judgement in the
individual's favor, other than on the merits, if a majority of the disinterested
directors determine that the individual was acting in good faith within the
scope of his or her employment or authority as he or she could have reasonably
perceived it under the circumstances and for a purpose he or she could
reasonably have believed under the circumstances was in the best interests of
the savings association or its members.
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The section also provides that no indemnification may be made unless the
association gives the OTS 60 days notice of its intention to make such
indemnification.
In addition to providing indemnification, under OTS Regulations, a savings
association may obtain insurance to protect it and its officers, directors and
employees from potential losses arising from claims against any of them for
alleged wrongful acts, or wrongful acts, committed in their capacity as
directors, officers or employees. However, the savings association may not
obtain insurance which provides for payment of losses of any person incurred as
a consequence of his or her willful or criminal misconduct.
Section 545.121 of OTS regulations is subject to and qualified by 12 U.S.C
(S) 1821(k) which provides in general that a director or officer of an insured
depository institution may be held personally liable for monetary damages by, on
behalf of, or at the request or direction of the Federal Deposit Insurance
Corporation in certain circumstances.
Article XII of both Charter Financial Corporation's and CharterBank's
Bylaws provide that it shall indemnify any person against whom an action is
brought or threatened because that person is or was a director, officer or
employee of Charter Financial Corporation or CharterBank for: (a) any amount
for which that person becomes liable under a judgment in such action; and (b)
reasonable costs and expenses, including reasonable attorneys' fees, actually
paid or incurred by that person in defending or settling such action, or in
enforcing his or her rights under the indemnification section of the bylaws if
he or she attains a favorable judgment in such enforcement action. These bylaw
sections mirror OTS regulations as set forth above.
Section 19 of the Bylaws of First Charter, MHC, the majority owner of
Charter Financial Corporation, provides that the mutual holding company shall
indemnify its officers, directors and employees to the fullest extent permitted
by the rules and regulations of the OTS at 12 C.F.R. (S) 545.121.
CharterBank and Charter Financial Corporation have each entered into a
separate Employment Agreement with Robert L. Johnson. The Agreements each
provide for indemnification to be provided to Mr. Johnson to the fullest extent
permitted under federal law. CharterBank and Charter Financial Corporation are
also parties to Change of Control Agreements with certain officers which provide
for indemnification for attorneys' fees in some instances.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See the Exhibits Index.
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Item 9. Undertakings.
A. Rule 415 offering. 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. Notwithstanding the foregoing, any increase or decrease in 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 Commission pursuant to Rule 424(b)) if, in the aggregate, the
changes in volume and price represent no more than 20% 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) do
not apply if the registration statement is on Form S-3 or Form S-8, and 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 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining 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.
(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. Filings incorporating subsequent Exchange Act documents by reference.
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 15(d) of the Exchange Act (and, where
applicable, each filing of an 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
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and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Incorporated annual and quarterly reports. The undersigned registrant
hereby undertakes to deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
D. Filing of registration on Form S-8. 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 for 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
Pursuant to the requirements of the Securities Act, 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 West Point, State of Georgia on July 30, 2002.
Charter Financial Corporation
(Registrant)
By: /s/Robert L. Johnson
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Robert L. Johnson
President and Chief Executive Officer
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.
Signature Title Date
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/s/ John W. Johnson, Jr. Chairman of the Board August 7, 2002
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John W. Johnson, Jr.
/s/ Robert L. Johnson President, Chief Executive Officer July 30, 2002
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Robert L. Johnson
/s/David Z. Cauble, III Director July 30, 2002
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David Z. Cauble, III
/s/ Jane W. Darden Director July 30, 2002
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Jane W. Darden
/s/ William B. Hudson Director July 30, 2002
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William B. Hudson
/s/ Thomas M. Lane Director July 30, 2002
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Thomas M. Lane
/s/ R. Terry Taunton Director July 30, 2002
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R. Terry Taunton
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Signature Title Date
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/s/ Curtis R. Kollar Chief Financial Officer, Vice July 30, 2002
- ----------------------------- President and Treasurer
Curtis R. Kollar
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EXHIBIT INDEX
Exhibit
Number Description
4.1 Articles of Organization of Charter Financial Corporation,
incorporated by reference to Exhibit 3.1, the Registrant's
Registration Statement on Form S-1, dated March 27, 2001, as amended,
Registration No. 333-57684, and any amendments thereto.
4.2 By-Laws of Charter Financial Corporation, incorporated by reference to
the Registrant's Registration Statement on Form S-1, dated March 27,
2001, as amended, Registration No. 333-57684, and any amendments
thereto.
4.3 Form of Stock Certificate, incorporated by reference to the
Registrant's Registration Statement on Form S-1, dated March 27, 2001,
as amended, Registration No. 333-57684, and any amendments thereto.
5.1 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the
legality of the securities being registered.
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
99.1 Charter Financial Corporation 2001 Stock Option Plan filed on March
26, 2002 as Appendix B to Registrant's Proxy Statement on Schedule
14A, is incorporated herein by reference.
99.2 Charter Financial Corporation 2001 Recognition and Retention Plan
filed on March 26, 2002 as Appendix C to Registrant's Proxy Statement
on Schedule 14A, is incorporated herein by reference.