Registration No. 333-______
As filed with the Securities and Exchange Commission on September 14, 2005
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
First Federal Banc of the Southwest, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 85-0453611
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
300 North Pennsylvania Avenue
Roswell, New Mexico 88201
(Address of Principal Executive Offices)
Aubrey L. Dunn, Jr.
300 North Pennsylvania Avenue
Roswell, New Mexico 88201
(Name and Address of Agent for Service)
------------------------
First Federal Bank 1995 Employees' Stock Option Plan
First Federal Banc of the Southwest, Inc.
2002 Stock Option Plan and Incentive Plan
(Full Title of the Plans)
Copies to:
Aubrey L. Dunn, Jr. Gary A. Lax, Esq.
President and Chief Executive Officer Luse Gorman Pomerenk & Schick
First Federal Banc of the Southwest, Inc. Professional Corporation
300 North Pennsylvania Avenue 5335 Wisconsin Ave., N.W., Suite 400
Roswell, New Mexico 88201 Washington, D.C. 20015
(505) 622-6201 (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 Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 62,960 (1) $7.8513 (2) $494,317 $58
- --------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 11,400 (3) $16.00 (4) $182,400 $21
- --------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 143,600 (5) $10.044 (2) $1,442,313 $170
- --------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 89,600 (6) $16.00 (4) $1,443,600 $170
- --------------------------------------------------------------------------------------------------------------------
Totals $3,562,630 $419
====================================================================================================================
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(1) Represents the number of shares of common stock currently reserved for
issuance under the First Federal Bank 1995 Employees' Stock Option Plan
(the "1995 Stock Option Plan") for any stock options that have been
granted.
(2) Determined by the exercise price of options pursuant to 17 C.F.R. Section
230.457(h)(1). (3) Represents the number of shares of common stock
currently reserved for issuance under the 1995 Stock Option Plan for any
future stock option grants.
(4) Determined by reference to the fair market value of the common stock on
September 12, 2005, pursuant to 17 C.F.R. Section 230.457(c).
(5) Represents the number of shares of common stock currently reserved for
issuance under the First Federal Banc of the Southwest, Inc. 2002 Stock
Option and Incentive Plan (the "2002 Stock Option Plan") for any stock
options that have been granted.
(6) Represents the number of shares of common stock currently reserved for
issuance under the 2002 Stock Option Plan for any future stock option
grants.
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 1995 Stock Option Plan
and the 2002 Stock Option 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"). In 1998, in connection with the
reorganization by First Federal Bank (the "Bank") into a holding company
structure and the concurrent formation of First Federal Banc of the Southwest,
Inc. (the "Company") as the sole stockholder of the Bank, the 1995 Stock Option
Plan was assumed as a stock option plan of the Company.
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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.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed by the Company
with the Commission are hereby incorporated by reference in this Registration
Statement:
a) The Company's joint proxy statement-prospectus containing audited
financial statements for the fiscal year ended September 30, 2004 (the
"Prospectus"), filed with the Commission on April 21, 2005 pursuant to Rule
424(b)(3) of the Securities Act of 1933, as amended;
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 Prospectus 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 April 8, 2005.
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
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 Aubrey
L. Dunn, Jr., First Federal Banc of the Southwest, Inc., 300 North Pennsylvania
Avenue, Roswell, New Mexico 88201, telephone number (505) 622-6201.
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.
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Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Articles ELEVENTH and TWELFTH of the Certificate of Incorporation of First
Federal Banc of the Southwest, Inc. (the "Corporation") set forth circumstances
under which directors, officers, employees and agents of the Corporation may be
insured or indemnified against liability which they incur in their capacities as
such:
ELEVENTH:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),by
reason of the fact that he or she is or was a director or an officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation, including, without limitation, any
Subsidiary(as defined in Article EIGHTH herein), partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; PROVIDED, HOWEVER, that,
except as provided in Section C hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any such indemnitee
in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
B. The right to indemnification conferred in Section A of this Article
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); PROVIDED, HOWEVER, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication"), that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article shall be contract rights
and such rights shall continue as to an indemnitee who has ceased to be a
director or officer and shall inure to the benefit of the indemnitee's heirs,
executors and administrators.
C. If a claim under Section A or B of this Article is not paid in full by
the Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall also be entitled to be paid the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
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Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by a
majority vote of the disinterested directors, grant rights to indemnification
and to the advancement of expenses to any employee or agent of the Corporation
to the fullest extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
TWELFTH:
A director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is hereafter amended
to further eliminate or limit the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Reference to Prior Filing
Regulation S-K or Exhibit No. attached
Exhibit Number Document hereto
--------------- -------- ------
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Exhibit 5
10.1 First Federal Bank 1995 Stock Option Plan **
10.2 First Federal Banc of the Southwest, Inc. 2002 Stock Option and ***
Incentive Plan
5
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23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Neff + Ricci LLP Exhibit 23.2
23.3 Consent of Eide Bailly LLP Exhibit 23.3
24 Power of Attorney Contained on Signature Page
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* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form S-4 originally filed by the Company with the Commission on November
24, 2004, and all amendments or reports for the purpose of updated such
description.
** Incorporated by reference to Exhibit 10.9 to the Quarterly Report on Form
10-QSB filed by the Company with the Commission on August 15, 2005.
*** Incorporated by reference to Exhibit 10.10 to the Quarterly Report on Form
10-QSB filed by the Company with the Commission on August 15, 2005.
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
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.
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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 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 Roswell, State of New Mexico, on this 14th day
of September, 2005.
FIRST FEDERAL BANC OF THE SOUTHWEST, INC.
By: /s/ Aubrey L. Dunn, Jr.
--------------------------------------
Aubrey L. Dunn, Jr.
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of First Federal Banc of the
Southwest, Inc. (the "Company") hereby severally constitute and appoint Aubrey
L. Dunn, 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 Aubrey L. Dunn, 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 First Federal Bank 1995 Stock Option Plan and the
First Federal Banc of the Southwest, Inc. 2002 Stock Option 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 Aubrey L. Dunn, 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/ Aubrey L. Dunn, Jr. President, Chief Executive September 14, 2005
- -------------------------------- Officer and Director (Principal
Aubrey L. Dunn, Jr. Executive Officer)
/s/ George A. Rosenbaum, Jr. Executive Vice President and September 14, 2005
- -------------------------------- Chief Financial Officer
George A. Rosenbaum, Jr. (Principal Financial and
Accounting Officer)
/s/ Edward K. David Chairman of the Board September 14, 2005
- --------------------------------
Edward K. David
Vice Chairman of the Board _____________________, 2005
- --------------------------------
Marc Reischman
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Director _____________________, 2005
- --------------------------------
Kay R. McMillan
/s/ Michael A. McMillan
- -------------------------------- Director September 14, 2005
Michael A. McMillan
/s/ Arturo Jurado Director September 14, 2005
- --------------------------------
Arturo Jurado
Director _____________________, 2005
- --------------------------------
Russell P. Weems
/s/ Larry L. Sheffield Director September 14, 2005
- --------------------------------
Larry L. Sheffield
/s/ James E. Paul, Jr. Director September 14, 2005
- --------------------------------
James E. Paul, Jr.
/s/ Catherine Gutierrez Director September 14, 2005
- --------------------------------
Catherine Gutierrez
Director ____________________, 2005
- --------------------------------
Michael P. Mataya
/s/ Richard C. Kauzlaric Director September 14, 2005
- --------------------------------
Richard C. Kauzlaric
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4 Form of Common Stock Certificate*
5 Opinion of Luse Gorman Pomerenk & Schick, A Professional
Corporation
10.1 First Federal Bank 1995 Stock Option Plan**
10.2 First Federal Banc of the Southwest, Inc. 2002 Stock Option
Plan***
23.2 Consent of Neff + Ricci LLP
23.3 Consent of Eide Bailly LLP
24 Power of Attorney (contained in the signature page to
this Registration Statement).
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* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form S-4 originally filed by the Company with the Securities and Exchange
Commission on November 24, 2004, and all amendments or reports for the
purpose of updated such description.
** Incorporated by reference to Exhibit 10.9 to the Quarterly Report on Form
10-QSB filed by the Company with the Commission on August 15, 2005.
*** Incorporated by reference to Exhibit 10.10 to the Quarterly Report on Form
10-QSB filed by the Company with the Commission on August 15, 2005.