As filed with the Securities and Exchange Commission on March 26, 2004.
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FSF Financial Corp.
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(Exact name of Registrant as specified in its charter)
Minnesota 41-1783064
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
201 Main Street South
Hutchinson, Minnesota 55350-2573
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(Address of principal executive offices)
FSF Financial Corp. 2003 Stock Compensation Plan
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(Full Title of the Plan)
Richard H. Burgart
Chief Financial Officer
201 Main Street South
Hutchinson, Minnesota 55350-2573
320-234-4500
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(Name, address and telephone number of agent for service)
Copies to:
Richard Fisch, Esq.
Evan M. Seigel, Esq.
Malizia Spidi & Fisch, PC
1100 New York Avenue, N.W.
Suite 340 West
Washington, D.C. 20005
(202) 434-4660
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(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities to Amount to be Offering Aggregate Offering Amount of Registration
be Registered Registered (1) Price Per Share(1) Price (1) Fee (1)
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Common Stock
$0.10 par value 230,000 shares $31.84 $7,323,200 $927.85
per share
(1) The maximum number of shares of Common Stock issuable upon awards to be
granted under the FSF Financial Corp. 2003 Stock Compensation Plan consists
of 230,000 shares, which are being registered under this Registration
Statement and for which a registration fee is being paid. Additionally, an
indeterminate number of additional shares which may be offered and issued
to prevent dilution resulting from stock splits, stock dividends or similar
transactions.
(2) The 230,000 shares are being registered based upon the average of the high
and low prices of the Common Stock of the Registrant as reported on the
Nasdaq National Market on March 22, 2004, of $31.84 per share for a total
offering of $7,323,200.
This Registration Statement shall become effective automatically upon
the date of filing, in accordance with Section 8(a) of the Securities Act of
1933 ("1933 Act") and Rule 462 of the 1933 Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
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Item 2. Registrant Information and Employee Plan Annual Information. *
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*This Registration Statement relates to the registration of 230,000
shares of FSF Financial Corp. (the "Company" or "Registrant") common stock, $.10
par value per share (the "Common Stock") issuable to employees, officers and
directors of the Registrant or its subsidiary as compensation for services in
accordance with the FSF Financial Corp. 2003 Stock Compensation Plan under which
230,000 shares are issuable, the "Plan". Documents containing the information
required by Part I of this Registration Statement will be sent or given to
participants in the Plan as specified by Rule 428(b)(1). Such documents are not
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424, in reliance on Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The Company became subject to the informational requirements of the
Securities Exchange Act of 1934 (the "1934 Act") on August 8, 1994 and,
accordingly, files periodic reports and other information with the Commission.
Reports, proxy statements and other information concerning the Company filed
with the Commission may be inspected and copies may be obtained (at prescribed
rates) at the Commission's Public Reference Section, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549.
The following documents filed by the Company are incorporated in this
Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 2003;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 2003;
(c) Current Report on Form 8-K, filed on January 21, 2004; and
(d) The description of the Company's securities as contained in the
Company's Registration Statement on Form 8-A, as filed with the
Commission on August 8, 1994.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the 1934 Act, 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 shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
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Not Applicable
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Item 5. Interests of Named Experts and Counsel.
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Not Applicable
Item 6. Indemnification of Directors and Officers.
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Sections 302A.521 of the Minnesota Business Corporation Act authorizes
a corporation such as the registrant to indemnify officers, directors, employees
and agents under certain circumstances. Section 302A.521, subdivision 2 requires
indemnification of directors, officers, employees and agents who have been
successful on the merits or otherwise in defense of certain actions, suits,
proceedings claims, issues and matters. Article 8 of the Registrant's Articles
of Incorporation provides for indemnification.
Section 308A.325 of the Minnesota Statutes, 1971 allows for the
limitation of liability of directors.
The registrant believes that these provisions assist the registrant in,
among other things, attracting and retaining qualified persons to serve the
registrant and its subsidiary. However, a result of such provisions could be to
increase the expenses of the registrant and effectively reduce the ability of
stockholders to sue on behalf of the registrant since certain suits could be
barred or amounts that might otherwise be obtained on behalf of the registrant
could be required to be repaid by the registrant to an indemnified party.
Additionally, the Company has in force a Directors and Officers
Liability Policy underwritten by St. Paul Insurance Companies, Inc. with a $2.0
million aggregate limit of liability and an aggregate deductible of $50,000 per
loss both for claims directly against officers and directors and for claims
where the Company is required to indemnify directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 ("1933 Act") may be permitted to directors, officers, or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 1933 Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed.
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Not Applicable
Item 8. Exhibits.
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For a list of all exhibits filed or included as part of this
Registration Statement, see "Index to Exhibits" at the end of this Registration
Statement.
Item 9. Undertakings.
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(a) 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 1933 Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the
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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;
(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, 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
1934 Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the 1933 Act, 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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the 1934 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, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 1934 Act; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
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) Insofar as indemnification for liabilities arising under the 1933
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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 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 expressed in the 1933 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 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 Hutchinson in the State of Minnesota, on the 26th day
of March 2004.
FSF FINANCIAL CORP.
By: /s/Donald A. Glas
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Donald A. Glas
Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of FSF Financial Corp., do
hereby severally constitute and appoint Donald A. Glas as our true and lawful
attorney and agent, to do any and all things and acts in our names in the
capacities indicated below and to execute any and all instruments for us and in
our names in the capacities indicated below which said Donald A. Glas may deem
necessary or advisable to enable FSF Financial Corp., to comply with the
Securities Act of 1933, as amended, and any rules, regulations and requirements
of the Securities and Exchange Commission, in connection with the Registration
Statement on Form S-8 relating to the registrant, including specifically, but
not limited to, power and authority to sign, for any of 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 ratify
and confirm all that said Donald A. Glas shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated as of the date indicated.
/s/Donald A. Glas /s/Richard H. Burgart
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Donald A. Glas Richard H. Burgart
Co-Chair of the Board and Chief Executive Officer Chief Financial Officer and Treasurer
(Principal Executive Officer) (Principal Financial and Accounting Officer)
Date: March 26, 2004 Date: March 26, 2004
/s/George B. Loban /s/Sever B. Knutson
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George B. Loban Sever B. Knutson
Co-Chair of the Board and President Director
Date: March 26, 2004 Date: March 26, 2004
/s/Roger R. Stearns /s/James J. Caturia
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Roger R. Stearns James J. Caturia
Co-Chair of the Board and President Director
Date: March 26, 2004 Date: March 26, 2004
/s/Jerome R. Dempsey
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Jerome R. Dempsey
Director
Date: March 26, 2004
INDEX TO EXHIBITS
Exhibit Description
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4.1 FSF Financial Corp. 2003 Stock Compensation Plan
4.2 Form of Stock Option Agreement to be entered into with
respect to Stock Options under the Plan
4.3 Form of Restricted Stock Award Agreement
4.4 Form of Stock Award Tax Notice
5.1 Opinion of Malizia Spidi & Fisch, PC as to the validity of the
Common Stock being registered
23.1 Consent of Malizia Spidi & Fisch, PC (appears in their opinion
filed as Exhibit 5.1)
23.2 Consent of Crowe Chizek and Company LLC
24 Reference is made to the Signatures section of this
Registration Statement for the Power of Attorney contained
therein