Registration No. 333-______
As filed with the Securities and Exchange Commission on July 25, 2005
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Atlantic Coast Federal Corporation
(Exact Name of Registrant as Specified in its Charter)
Federal 59-3764686
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
505 Haines Avenue
Waycross, Georgia 31501
(Address of Principal Executive Offices)
Robert J. Larison, Jr.
505 Haines Avenue
Waycross, Georgia 31501
(Name and Address of Agent for Service)
Atlantic Coast Federal Corporation 2005 Stock Option Plan
Atlantic Coast Federal Corporation 2005 Recognition and Retention Plan
(Full Title of the Plans)
Copies to:
Robert J. Larison, Jr. Richard S. Garabedian, Esquire
President and Chief Executive Officer Luse Gorman Pomerenk & Schick
Atlantic Coast Federal Corporation A Professional Corporation
505 Haines Avenue 5335 Wisconsin Ave., N.W., Suite 400
Waycross, Georgia 31501 Washington, D.C. 20015
(800) 342-2824 (202) 274-2000
(Name, Address and Telephone
Number of Agent for Service)
-----------------
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 check the following box. [x]
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Each Class Proposed Proposed
Of Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered (1) Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 712,827 (2) $13.19 (3) $9,402,188 $1,107
- --------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 261,320 (4) $13.19 (3) $3,446,811 $406
- --------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 23,811 (5) $13.19 (3) $314,067 $37
- --------------------------------------------------------------------------------------------------------------------
Totals 997,958 $13,163,066 $1,550
====================================================================================================================
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<FN>
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Atlantic Coast Federal Corporation 2005 Stock Option Plan (the "Stock
Option Plan") and the Atlantic Coast Federal Corporation 2005 Recognition
and Retention Plan (the "Recognition Plan") as a result of a stock split,
stock dividend or similar adjustment of the outstanding common stock of
Atlantic Coast Federal Corporation pursuant to 17 C.F.R. Section
230.416(a).
(2) Represents the number of shares of common stock currently reserved for
issuance under the Stock Option Plan for any future stock option grants.
(3) Determined by reference to the fair market value of the common stock on
July 19, 2005, pursuant to 17 C.F.R. Section 230.457(c).
(4) Represents the number of shares of restricted stock that have been
previously awarded under the Recognition Plan.
(5) Represents the number of shares of common stock available for award of
restricted stock under the Recognition Plan.
</FN>
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
The documents containing the information specified in Part I of Form S-8
have been or will be sent or given to participants in the Atlantic Coast Federal
Corporation 2005 Stock Option Plan (the "Stock Option Plan") and the Atlantic
Coast Federal Corporation 2005 Recognition and Retention Plan (the "Recognition
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 documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
2
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed by Atlantic Coast
Federal Corporation, a federal corporation (the "Company") with the Commission
are hereby incorporated by reference in this Registration Statement:
a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2004 (Commission File No. 000-50962), filed with the Commission on
March 30, 2005 pursuant to Section 13(a) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act");
b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the year covered by the Annual Report on Form 10-K referred to in (a) above;
and
c) The description of the Company's common stock contained in the
Registration Statement on Form 8-A filed with the Commission on September 28,
2004 (Commission File No. 000-50962).
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, after the
date hereof, and 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
Annual Report on Form 10-K 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 Annual Report on Form 10-K.
The Company shall furnish without charge to each person to whom the Annual
Report 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 Robert
J. Larison, Jr., Atlantic Coast Federal Corporation, 505 Haines Avenue,
Waycross, Georgia 31501, telephone number (800) 342-2824.
All information appearing in this Registration Statement and the Annual
Report on Form 10-K 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
None.
Item 6. Indemnification of Directors and Officers
Section 545.121 of the Office of Thrift Supervision (OTS) regulations
provides indemnification for directors and officers of the Atlantic Coast
Federal. Although there are no indemnification provisions in the charter and
bylaws of the Registrant, all the directors and officers of the Registrant hold
the same position with Atlantic Coast Federal and have indemnification under OTS
Regulations as described below.
3
Generally, federal regulations define areas for indemnity coverage for
federal savings associations as follows:
(a) Any person against whom any action is brought or threatened because
that person is or was a director or officer of the savings association shall be
indemnified by the savings association for:
(i) Any amount for which that person becomes liable under a judgment
in such action; and
(ii) 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 this section if he or
she attains a favorable judgment in such enforcement action.
(b) Indemnification shall be made to such person under paragraph (b) of
this Section only if:
(i) Final judgment on the merits is in his or her favor; or
(ii) In case of:
a. Settlement,
b. Final judgment against him or her, or
c. Final judgment in his or her favor, other than on the
merits, if a majority of the disinterested directors of the
savings association determine that he or she was acting in
good faith within the scope of his or her employment or
authority as he or she could reasonably have perceived it
under the circumstances and for a purpose he or she could
reasonably have believed under the circumstances was in the
best interest of the savings association or its members.
However, no indemnification shall be made unless the
association gives the Office at least 60 days notice of its
intention to make such indemnification. Such notice shall
state the facts on which the action arose, the terms of any
settlement, and any disposition of the action by a court.
Such notice, a copy thereof, and a certified copy of the
resolution containing the required determination by the
board of directors shall be sent to the Regional Director,
who shall promptly acknowledge receipt thereof. The notice
period shall run from the date of such receipt. No such
indemnification shall be made if the OTS advises the
association in writing, within such notice period, of its
objection thereto.
(c) As used in this paragraph:
(i) "Action" means any judicial or administrative proceeding, or
threatened proceeding, whether civil, criminal, or otherwise,
including any appeal or other proceeding for review;
(ii) "Court" includes, without limitation, any court to which or
in which any appeal or any proceeding for review is brought;
(iii) "Final Judgment" means a judgment, decree, or order which
is not appealable or as to which the period for appeal has expired
with no appeal taken;
(iv) "Settlement" includes the entry of a judgment by consent or
confession or a plea of guilty or of nolo contendere.
Item 7. Exemption From Registration Claimed.
Not applicable.
4
Item 8. List of Exhibits.
Regulation Reference to Prior Filing
S-K Exhibit or Exhibit No. attached
Number Document hereto
------ -------- ------
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, A Professional Corporation Exhibit 5
10.1 Atlantic Coast Federal Corporation 2005 Stock Option Plan **
10.2 Atlantic Coast Federal Corporation 2005 Recognition and Retention **
Plan
23.1 Consent of Luse Gorman Pomerenk & Schick, A Professional Corporation Contained in Exhibit 5
23.2 Consent of Crowe Chizek and Company LLC Exhibit 23.2
24 Power of Attorney Contained on Signature Page
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<FN>
* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form S-1 Registration Number 333-113923) as filed on March 25, 2004, and as
amended on May 3, 2004, May 12, 2004, July 15, 2004, and August 4, 2004.
** Incorporated by reference to the Company's Proxy Statement relating to the
Company's May 27, 2005 annual meeting of stockholders, filed with the
Commission on April 7, 2005.
</FN>
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 to include any material
information with respect to the plan distribution not previously disclosed in
this registration statement or any material change to such information in this
registration statement;
2. 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;
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
Plan;
4. 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities and Exchange Act of 1934) 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; and
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 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
5
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 Act and will be governed by the final adjudication of
such issue.
6
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 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 Waycross, State of Georgia, on this 25th day of
July, 2005.
ATLANTIC COAST FEDERAL CORPORATION
By: /s/ Robert J. Larison, Jr.
-------------------------------------
Robert J. Larison, Jr.
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Atlantic Coast Federal
Corporation (the "Company") hereby severally constitute and appoint Robert J.
Larison, Jr. as our true and lawful attorney and agent, to do any and all things
in our names in the capacities indicated below which said Robert J. Larison, Jr.
may deem necessary or advisable to enable the Company to comply with the
Securities Act of 1933, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the registration of
common stock underlying the Atlantic Coast Federal Corporation 2005 Stock Option
Plan and the Atlantic Coast Federal Corporation 2005 Recognition and Retention
Plan, including specifically, but not limited to, power and authority to sign
for us in our names in the capacities indicated below the registration statement
and any and all amendments (including post-effective amendments) thereto; and we
hereby approve, ratify and confirm all that said Robert J. Larison, Jr. shall do
or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signatures Title Date
/s/ Robert J. Larison, Jr. President, Chief Executive July 25, 2005
- ----------------------------- Officer and Director (Principal -------------
Robert J. Larison, Jr. Executive Officer)
/s/ Jon C. Parker, Sr. Vice President, Chief Financial July 25, 2005
- ----------------------------- Officer and Director (Principal -------------
Jon C. Parker, Sr. Financial and Accounting Officer)
/s/ Charles E. Martin, Jr. Chairman of the Board July 25, 2005
- ----------------------------- -------------
Charles E. Martin, Jr.
Director
- ----------------------------- -------------
Thomas F. Beeckler
Director
- ----------------------------- -------------
Frederick D. Franklin, Jr.
Director
- ----------------------------- -------------
W. Eric Palmer
Director
- ----------------------------- -------------
Robert J. Smith
/s/ Forrest W. Sweat, Jr. Director July 25, 2005
- ----------------------------- -------------
Forrest W. Sweat, Jr.
/s/ H. Dennis Woods Director July 25, 2005
- ----------------------------- -------------
H. Dennis Woods
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4 Form of Common Stock Certificate*
5 Opinion of Luse Gorman Pomerenk & Schick, A Professional
Corporation
10.1 Atlantic Coast Federal Corporation 2005 Stock Option
Plan **
10.2 Atlantic Coast Federal Corporation 2005 Recognition and
Retention Plan**
23.1 Consent of Luse Gorman Pomerenk & Schick, A Professional
Corporation (contained in Exhibit 5)
23.2 Consent of Crowe Chizek and Company LLC
24 Power of Attorney (contained in the signature page to
this Registration Statement).
- ------------------
* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form S-1 Registration Number 333-113923) as filed March 25, 2004, and as
amended on May 3, 2004, May 12, 2004, July 15, 2004 and August 4, 2004.
** Incorporated by reference to the Company's Proxy Statement relating to the
Company's May 27, 2005 annual meeting of stockholders, filed with the
Commission on April 7, 2005.