As filed with the Securities and Exchange Commission on July 17, 2007
Registration No. 333-141380
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2 TO THE
FORM SB-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FSB COMMUNITY BANKSHARES, INC.
(Name of Small Business Issuer in Its Charter)
Federal 6712 74-3164710
(State or Other Jurisdiction (Primary Standard (I.R.S. Employer
of Incorporation or Industrial Classification Identification
Organization) Code Number) Number)
45 South Main Street
Fairport, New York 14450
(585) 223-9080
(Address and Telephone Number of
Principal Executive Offices)
45 South Main Street
Fairport, New York 14450
(Address of Principal Place of Business)
Dana C. Gavenda
45 South Main Street
Fairport, New York 14450
(585) 223-9080
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Alan Schick, Esq. James Stewart , Esq.
Steven Lanter, Esq. Malizia Spidi & Fisch, PC
Luse Gorman Pomerenk & Schick, P.C. 901 New York Avenue, N.W.
5335 Wisconsin Avenue, N.W., Suite 400 Suite 210 East
Washington, D.C. 20015 Washington, DC 20001
Approximate date of proposed sale to the public: As soon as practicable after
this registration statement becomes effective.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum Proposed
Title of each class of offering price maximum aggregate Amount of
securities to be registered Amount to be registered per share offering price registration fee
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Common Stock, $0.10
par value per share 1,305,308 shares $10.00 $13,053,080 (1) $401 (2)
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Participation Interests 281,276 interests -- -- (3)
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) Previously paid.
(3) The securities of FSB Community Bankshares, Inc. to be purchased by the
Fairport Savings Bank 401(k) Plan are included in the amount shown for
common stock. However, pursuant to Rule 457(h) of the Securities Act of
1933, as amended, no separate fee is required for the participation
interests. Pursuant to such rule, the amount being registered has been
calculated on the basis of the number of shares of common stock that may be
purchased with the current assets of such plan.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration shall
thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the registration statement shall become effective on such
date as the Securities and Exchange Commission, acting pursuant to said Section
8(a), may determine.
PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
Item 24. Indemnification of Directors and Officers
Section 545.121 of the Office of Thrift Supervision ("OTS") regulations
provides indemnification for directors and officers of Fairport Savings Bank.
Each of the directors and officers of the Registrant hold the same position with
Fairport Savings Bank and have indemnification under OTS Regulations as
described below.
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 25. Other Expenses of Issuance and Distribution
Amount
--------
Legal Fees and Expenses*, (1).......................... $ 310,000
Accounting Fees and Expenses*.......................... 100,000
Marketing Agent Fees and Expenses ..................... 210,000
Appraisal Fees and Expenses............................ 30,000
Business Plan Fees and Expenses........................ 20,000
Conversion Agent Fees and Expenses..................... 15,000
Printing, Postage, Mailing and EDGAR*.................. 110,000
Filing Fees (OTS, NASD and SEC)........................ 9,603
State Filing Fees* .................................... 15,000
Other .............................................. 34,997
---------
Total .............................................. $ 854,600
=========
----------------
* Estimated
(1) Includes fees for filings with state securities commissions.
Item 26. Recent Sales of Unregistered Securities
On January 14, 2005, the Registrant issued 100 shares of its Common Stock
to FSB Community Bankshares, MHC in an offering that was exempt under Section
4(2) of the Securities Act as part of its initial organization.
Item 27. Exhibits and Financial Statement Schedules:
The exhibits filed as part of this registration statement are as follows:
(a) List of Exhibits
1.1 Engagement Letter between FSB Community Bankshares, Inc. and Sandler
O'Neill & Partners, L.P.*
1.2 Form of Agency Agreement between FSB Community Bankshares, Inc. and Sandler
O'Neill & Partners, L.P. *
2 Plan of Stock Issuance
3.1 Charter of FSB Community Bankshares, Inc.*
3.2 Bylaws of FSB Community Bankshares, Inc.*
4 Form of Common Stock Certificate of FSB Community Bankshares, Inc.*
5 Opinion of Luse Gorman Pomerenk & Schick regarding legality of securities
being registered*
8 Federal Tax Opinion of Luse Gorman Pomerenk & Schick*
10.1 Employment Agreement of Dana C. Gavenda*
10.2 Supplemental Executive Retirement Plan*
10.3 Form of Employee Stock Ownership Plan*
16 Letter of Mengel, Metzger, Barr & Co LLP regarding change in accountants*
21 Subsidiaries of Registrant*
23.1 Consent of Luse Gorman Pomerenk & Schick (contained in Opinions included as
Exhibits 5 and 8)*
23.2 Consent of Beard Miller Company, LLP*
23.3 Consent of RP Financial, LC.*
24 Power of Attorney (set forth on signature page)
99.1 Prospectus Supplement for 401(k) Plan*
99.2 Appraisal Agreement between FSB Community Bankshares, Inc. and RP
Financial, LC.*
99.3 Business Plan Agreement between FSB Community Bankshares, Inc. and Keller &
Company*
99.4 Appraisal Report of RP Financial, LC. *,**
99.5 Letter of RP Financial, LC. with respect to Subscription Rights*
99.6 Marketing Materials*
99.7 Order and Acknowledgment Form*
99.8 Press Release*
99.9 Prospectus Supplement*
99.10 Prospectus Supplement dated July 16, 2007
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<Page>
* Previously filed.
** Supporting financial schedules filed in paper format only pursuant to Rule
202 of Regulation S-T. Available for inspection during business hours at
the principal offices of the SEC in Washington, D.C.
Item 28. Undertakings
The small business issuer will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii)Reflect in the prospectus any facts or events which, individually or
together, represent a fundamental change in the information 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 a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) Include any additional or changed material information as the plan of
distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement as the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering thereof.
(3) File a post-effective amendment to remove from registration any of the
securities being registered that remain unsold at the termination of the
offering.
(4) For determining liability of the undersigned small business issuer
under the Securities Act to any purchaser in the initial distribution of the
securities, the undersigned small business issuer undertakes that in a primary
offering of securities of the undersigned small business issuer pursuant to this
registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned small
business issuer will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned small
business issuer relating to the offering required to be filed pursuant
to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned small business issuer or used or referred to
by the undersigned small business issuer;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned small
business issuer or its securities provided by or on behalf of the
undersigned small business issuer; and
(iv) Any other communication that is an offer in the offering made by the
undersigned small business issuer to the purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer 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 small business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer in the successful defense of any
<page>
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the small business
issuer 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.
The small business issuer hereby undertakes that:
(1) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430(A) and contained in a form of
prospectus filed by the small business issuer pursuant to Rule 424(b)(1), or (4)
or 497(h) under the Securities Act as part of this registration statement as of
the time the Commission declared it effective.
(2) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial bona fide
offering of those securities.
SIGNATURES
In accordance with 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 of filing on Form SB-2 and authorized this registration
statement to be signed on its behalf by the undersigned, in the City of
Fairport, State of New York on July 17, 2007.
FSB COMMUNITY BANKSHARES, INC.
By: /s/ Dana C. Gavenda
--------------------------------------------
Dana C. Gavenda
President, Chief Executive Officer and Director
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of FSB Community Bankshares,
Inc. (the "Company") hereby severally constitute and appoint Dana C. Gavenda as
our true and lawful attorney and agent, to do any and all things in our names in
the capacities indicated below which said Dana C. Gavenda 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 statement on Form SB-2 relating
to the offering of the Company's common stock, 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 Dana C. Gavenda shall do or cause to be done by virtue thereof.
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates indicated.
Signatures Title Date
/s/ Dana C. Gavenda President, Chief Executive Officer and July 17, 2007
- --------------------------------
Dana C. Gavenda Director (Principal Executive Officer)
/s/ Kevin Maroney Senior Vice President and Chief Financial July 17, 2007
- --------------------------------
Kevin Maroney Officer (Principal Financial and
Accounting Officer)
/s/ Thomas J. Hanss Chairman of the Board July 17, 2007
- --------------------------------
Thomas J. Hanss
/s/ Terence O'Neil Vice Chairman of the Board July 17, 2007
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Terence O'Neil
/s/ D. Lawrence Keef Director July 17, 2007
- --------------------------------
D. Lawrence Keef
/s/ James E. Smith Director July 17, 2007
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James E. Smith
Director July 17, 2007
/s/ Lowell T. Twitchell
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Lowell T. Twitchell
/s/ Robert W. Sturn Director July 17, 2007
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Robert W. Sturn
/s/ Charis W. Warshof Director July 17, 2007
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Charis W. Warshof
/s/ Gary Lindsay Director July 17, 2007
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Gary Lindsay
As filed with the Securities and Exchange Commission on July 17, 2007
Registration No. 333-141380
---------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------------
EXHIBITS
TO
POST-EFFECTIVE AMENDMENT NO. 2
TO THE
REGISTRATION STATEMENT
ON
FORM SB-2
FSB Community Bankshares, Inc.
Fairport, New York
EXHIBIT INDEX
1.1 Engagement Letter between FSB Community Bankshares, Inc. and Sandler
O'Neill & Partners, L.P.*
1.2 Form of Agency Agreement between FSB Community Bankshares, Inc. and Sandler
O'Neill & Partners, L.P.*
2 Plan of Stock Issuance
3.1 Charter of FSB Community Bankshares, Inc.*
3.2 Bylaws of FSB Community Bankshares, Inc.*
4 Form of Common Stock Certificate of FSB Community Bankshares, Inc.*
5 Opinion of Luse Gorman Pomerenk & Schick regarding legality of securities
being registered*
8 Federal Tax Opinion of Luse Gorman Pomerenk & Schick*
10.1 Employment Agreement for Dana C. Gavenda*
10.2 Supplemental Executive Retirement Plan*
10.3 Form of Employee Stock Ownership Plan*
16 Letter of Mengel, Metzger, Barr& Co LLP regarding change in accountants*
21 Subsidiaries of Registrant*
23.1 Consent of Luse Gorman Pomerenk & Schick (contained in Opinions included as
Exhibits 5 and 8)*
23.2 Consent of Beard Miller Company, LLP*
23.3 Consent of RP Financial, LC.*
24 Power of Attorney (set forth on signature page)
99.1 Prospectus Supplement for 401(k) Plan*
99.2 Appraisal Agreement between FSB Community Bankshares, Inc. and RP
Financial, LC.*
99.3 Business Plan Agreement between FSB Community Bankshares, Inc. and Keller &
Company*
99.4 Appraisal Report of RP Financial, LC.*,**
99.5 Letter of RP Financial, LC. with respect to Subscription Rights*
99.6 Marketing Materials*
99.7 Order and Acknowledgment Form*
99.8 Press Release*
99.9 Prospectus Supplement*
99.10 Prospectus Supplement dated July 16, 2007
- -------------------------------
* Previously filed.
** Supporting financial schedules filed in paper format only pursuant to Rule
202 of Regulation S-T. Available for inspection during business hours at
the principal offices of the SEC in Washington, D.C.