Registration No. 333-______
As filed with the Securities and Exchange Commission on April 20, 2007
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
First Federal Bankshares, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 42-1485449
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
329 Pierce Street
Sioux City, Iowa 51101
(Address of Principal Executive Offices)
First Federal Bankshares, Inc. 2006 Stock-Based Incentive Plan
(Full Title of the Plan)
Copies to:
Mr. Michael W. Dosland Robert B. Pomerenk, Esquire
President and Chief Executive Officer Luse Gorman Pomerenk & Schick, P.C.
First Federal Bankshares, Inc. 5335 Wisconsin Ave., N.W.,
329 Pierce Street Suite 400
Sioux City, Iowa 51101 Washington, D.C. 20015
(712) 277-0200 (202) 274-2000
(Name, Address and Telephone
Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
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Common stock, par value
$0.01 per share 5,362 (2) $21.32 (6) $114,318 $4
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 14,350 (3) $21.50 (5) $308,525 $10
- --------------------------------------------------------------------------------------------------------------------
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Common stock, par value
$0.01 per share 280,288 (4) $21.32 (6) $5,975,741 $184
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
TOTALS 300,000 $6,398,584 $198
- --------------------------------------------------------------------------------------------------------------------
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(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance pursuant to
the First Federal Bankshares, Inc. 2006 Stock-Based Incentive Plan (the
"Stock Benefit Plan") as a result of a stock split, stock dividend or
similar adjustment of the outstanding common stock of First Federal
Bankshares, Inc. (the "Company") pursuant to 17 C.F.R. Section 230.416(a).
(2) Represents the number of shares of common stock awarded as restricted stock
but not vested under the Stock Benefit Plan.
(3) Represents the number of shares of common stock currently reserved for
issuance for options granted pursuant to the Stock Benefit Plan.
(4) Represents the number of shares of common stock reserved for issuance under
the Stock Benefit Plan for any future grants of restricted stock or stock
options.
(5) Determined pursuant to 17 C.F.R. Section 230.457(h)(1).
(6) Determined pursuant to 17 C.F.R. Section 230.457(c).
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.
2
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
The documents containing the information specified in Parts I and II of
Form S-8 have been or will be sent or given to participants in the Stock Benefit
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.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed with the
Commission are hereby incorporated by reference in this Registration Statement:
a) The Annual Report on Form 10-K of the Company for the fiscal year ended
June 30, 2006 (Commission File No. 000-25509), filed with the Commission on
September 13, 2006 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 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 March 8, 1999
(Commission File No. 000-25509).
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 that
indicates that all securities offered hereby have been sold or that 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.
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
None.
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Item 6. Indemnification of Directors and Officers
Articles TENTH and ELEVENTH of the Certificate of Incorporation of First
Federal Bankshares, Inc. (for purposes of this Item 6, 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:
TENTH:
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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, Officer, employee or agent of another corporation or of a 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, Officer,
employee or agent or in any other capacity while serving as a Director, Officer,
employee or agent, 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
TENTH 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 TENTH shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a Director, Officer, employee or agent 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 TENTH 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 be
entitled to be paid also 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 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
4
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 TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH 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 the
Board of 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 TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
ELEVENTH: 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 amended to
authorize corporate action further eliminating or limiting 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.
In addition, the employment agreement between the First Federal Bankshares,
Inc. and Michael W. Dosland (hereafter referred to as "Executive") provides that
during the term of the agreement, the Company shall provide Executive (including
his heirs, executors and administrators) with coverage under a standard
directors and officers liability insurance policy at its expense, and shall
indemnify Executive (and his heirs, executors and administrators) to the fullest
extent permitted under Delaware law against all expenses and liabilities
reasonably incurred by him in connection with or arising out of any action, suit
or proceeding in which he may be involved by reason of his having been a
director or officer of the Company (whether or not he continues to be a director
or officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys fees and the cost of reasonable settlements (such settlements must be
approved by the Board of Directors of the Company). If such action, suit or
proceeding is brought against Executive in his capacity as an officer or
director of the Company, however, such indemnification shall not extend to
matters as to which Executive is finally adjudged to be liable for willful
misconduct in the performance of his duties.
Item 7. Exemption From Registration Claimed.
Not applicable.
5
Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
- -------------- -------- ----------------------------
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
10 First Federal Bankshares, Inc. 2006 Stock-Based
Incentive Plan **
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of McGladrey & Pullen, LLP Attached as Exhibit 23.2
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-1 (Commission File No. 333-69245) originally filed by the Company
under the Securities Act of 1933, with the Commission on December 18, 1998,
and all amendments or reports filed for the purpose of updating such
description.
** Incorporated by reference to Appendix A to the proxy statement for the
Company's 2006 Annual Meeting of Stockholders (Commission File No.
000-25509), filed by the Company under the Securities and Exchange Act of
1934, on September 21, 2006.
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 of 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 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
6
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.
7
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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sioux City, State of
Iowa, on this 19th day of April, 2007.
FIRST FEDERAL BANKSHARES, INC.
By: /s/ Michael W. Dosland
----------------------
Michael W. Dosland, President and
Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of First Federal Bankshares,
Inc. (the "Company") hereby severally constitute and appoint Michael W. Dosland,
as our true and lawful attorney and agent, to do any and all things in our names
in the capacities indicated below which said Michael W. Dosland 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 shares of common
stock to be granted and shares of common stock to be issued upon the exercise of
stock options to be granted under the First Federal Bankshares, Inc. 2006
Stock-Based Incentive 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
Michael W. Dosland 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/ Michael W. Dosland President and Chief Executive Officer April 19, 2007
- ---------------------------
Michael W. Dosland (Principal Executive
and Financial Officer)
/s/ Michael S. Moderski Senior Vice President, April 19, 2007
- ---------------------------
Michael S. Moderski Chief Financial Officer,
(Principal Financial and
Accounting Officer)
/s/ Arlene T. Curry Chairman of the Board April 19, 2007
- ---------------------------
Arlene T. Curry
Director April 19, 2007
- ---------------------------
Barry E. Backhaus
/s/ Jon G. Cleghorn Director April 19, 2007
- ---------------------------
Jon G. Cleghorn
/s/ Gary L. Evans Director April 19, 2007
- ---------------------------
Gary L. Evans
/s/ Allen J. Johnson Director April 19, 2007
- ---------------------------
Allen J. Johnson
/s/ Ronald A. Jorgensen Director April 19, 2007
- ---------------------------
Ronald A. Jorgensen
/s/ David M. Roederer Director April 19, 2007
- ---------------------------
David M. Roederer
/s/ Charles D. Terlouw Director April 19, 2007
- ---------------------------
Charles D. Terlouw
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4 Form of Common Stock Certificate (incorporated by reference to Exhibit 4 to the Registration Statement on
Form S-1 (Commission File No. 333-69245), originally filed by the Company under the Securities Act of 1933
with the Commission on December 18, 1998, and all amendments or reports filed for the purpose of updating
such description).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C.
10 First Federal Bankshares, Inc. 2006 Stock-Based Incentive Plan (incorporated by reference to Appendix A to
the proxy statement for the Company's 2006 Annual Meeting of Stockholders (Commission File No. 000-25509),
filed by the Company under the Securities and Exchange Act of 1934, on September 21, 2006).
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (contained in the opinion included as Exhibit 5).
23.2 Consent of McGladrey & Pullen, LLP
24 Power of Attorney (contained in the signature page to this Registration Statement).
Exhibit 5
OPINION OF LUSE GORMAN POMERENK & SCHICK, PC
LUSE GORMAN POMERENK & SCHICK
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
5335 WISCONSIN AVENUE, N.W., SUITE 400
WASHINGTON, D.C. 20015
TELEPHONE (202) 274-2000
FACSIMILE (202) 362-2902
www.luselaw.com
WRITER'S DIRECT DIAL NUMBER WRITER'S EMAIL
(202) 274-2000
April 20, 2006
Board of Directors
First Federal Bankshares, Inc.
329 Pierce Street
Sioux City, Iowa 51101
Re: First Federal Bankshares, Inc. 2006 Stock-Based Incentive Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested the opinion of this firm as to certain matters in
connection with the issuance of First Federal Bankshares, Inc. (the "Company")
common stock, par value $.01 per share (the "Common Stock"), pursuant to the
First Federal Bankshares, Inc. 2006 Stock-Based Incentive Plan (the "Stock
Benefit Plan"). We have reviewed the Company's Certificate of Incorporation,
Registration Statement on Form S-8 (the "Form S-8"), as well as applicable
statutes and regulations governing the Company and the offer and sale of the
Common Stock.
Based on the foregoing, we are of the following opinion:
Upon the effectiveness of the Form S-8, the Common Stock, when issued in
connection with the exercise of options granted pursuant to the Stock Benefit
Plan and shares of Common Stock granted under the Stock Benefit Plan, will be
legally issued, fully paid and non-assessable.
This opinion has been prepared solely for the use of the Company in
connection with the preparation and filing of the Form S-8, and should not be
used for any other purpose or relied upon by any other person without the prior
written consent of this firm. We hereby consent to the use of this opinion in
the Form S-8.
Very truly yours,
/s/ Luse Gorman Pomerenk & Schick, PC
LUSE GORMAN POMERENK & SCHICK
A Professional Corporation
Exhibit 23.2
CONSENT OF MCGLADREY & PULLEN, LLP
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of First Federal Bankshares, Inc. of our reports dated September 13,
2006 relating to our audits of the consolidated financial statements and
internal control over financial reporting, which appear in the Annual Report on
Form 10-K of First Federal Bankshares, Inc. for the year ended June 30, 2006.
We also consent to the reference to our firm under the caption "Experts" in the
Prospectus which is incorporated into this Registration Statement by reference.
/s/ McGladrey & Pullen, LLP
Des Moines, Iowa
April 20, 2007