Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MSB Financial Corp.
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(Exact name of Registrant as specified in its charter)
United States 34-1981437
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1902 Long Hill Road
Millington, New Jersey 07946
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(Address of principal executive offices)
Millington Savings Bank
Savings Plan
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(Full Title of the Plan)
Jeffrey E. Smith
Chief Financial Officer
1902 Long Hill Road
Millington, New Jersey 07946
(908) 647-4000
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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
901 New York Avenue, N.W.
Suite 210 East
Washington, D.C. 20001
(202) 434-4660
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Offering Registration
be Registered(1) Registered(2) Price Per Share(3) Price (4) Fee
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Common Stock
$0.10 par value
per share 24,611 $12.19 $300,008 $32.10
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Millington Savings Bank
Savings Plan (the "Plan"), as described herein.
(2) Estimates the maximum number of shares expected to be issued under the
Plan assuming that all employer and employee contributions to the Plan
are used to purchase shares of Common Stock of MSB Financial Corp. (the
"Company"), together with an indeterminate number of shares which may
be necessary to adjust the number of additional shares of Common Stock
reserved for issuance pursuant to the Plan and being registered herein,
as the result of a stock split, stock dividend, reclassification,
recapitalization, or similar adjustment(s) of the Common Stock of the
Company.
(3) Estimated solely for the purpose of calculating the registration fee
and calculated pursuant to Rule 457(c) based upon the average of the
high and low prices of the Common Stock of the Registrant as reported
on the Nasdaq Global Market on January 10, 2007.
(4) Estimated based on (2) and (3) above.
This Registration Statement shall become effective automatically upon
the date of filing, in accordance with Section 8(a) of the Securities Act of
1933.
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 24,611
shares of Common Stock, $0.10 par value per share, of MSB Financial Corp. (the
"Company") reserved for issuance and delivery under the Millington Savings Bank
Savings Plan (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 January 4, 2007 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:
1. 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 January 4, 2007;
2. The Prospectus, filed with the SEC by the Registrant (File No.
333-137294) on September 13, 2006, which includes the
consolidated statements of financial condition of MSB
Financial Corp. and subsidiaries as of June 30, 2006 and 2005,
and the related consolidated statements of income, changes in
stockholders equity and cash flows for each of the years in
the three-year period ended June 30, 2006, together with
related notes and report of Beard Miller Company LLP dated
August 8, 2006; and
3. The Company's Form 10-Q for the quarter ended September 30,
2006, as filed with the Commission.
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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.
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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Section 545.121 of the Office of Thrift Supervision (OTS) regulations
provides indemnification for directors and officers of Millington Savings Bank.
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 Millington 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 bank shall be
indemnified by the savings bank 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 bank
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
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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 bank or its
members. However, no indemnification shall
be made unless the savings bank 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 savings bank 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.
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 is or was a Director, officer or employee of the
Company or is or was serving at the request of the Company as a Director,
Officer or employee 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 or employee or in
any other capacity while serving as a Director, officer or employee, shall be
indemnified and held harmless by the Company to the fullest extent authorized by
the Regulations of the OTS, as the same exists or may hereafter be amended
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.
The right to indemnification conferred herein shall include the right
to be paid by the Company the expenses incurred in defending any such proceeding
in advance of its final disposition, to the fullest extent authorized by the
Regulations of the OTS. The rights to indemnification and to the advancement of
expenses conferred herein shall be contract rights and such rights shall
continue as to an indemnitee who
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has ceased to be a Director, officer or employee and shall inure to the benefit
of the indemnitee's heirs, executors and administrators.
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.
In lieu of an opinion of counsel concerning the Plan's compliance with
the requirements of ERISA, the Company hereby undertakes that it has submitted
the Plan and any amendment thereto to the Internal Revenue Service ("IRS") in a
timely manner and will make all changes required by the IRS in order to qualify
the Plan.
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
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 no 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
Securities Exchange Act of 1934 that are incorporated by reference in the
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.
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(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 Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 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 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.
(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 Securities
Exchange Act of 1934; 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
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 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 Millington in the State of New Jersey, on the 12th
day of January, 2007.
MSB Financial Corp.
Dated: January 12, 2007 By:/s/Gary T. Jolliffe
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Gary T. Jolliffe
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of MSB Financial Corp. do
hereby severally constitute and appoint Gary T. Jolliffe as our true and lawful
attorney and agent, to do any and all things and acts in our MSB Financial Corp.
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 Gary T.
Jolliffe may deem necessary or advisable to enable MSB 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 Gary T. Jolliffe 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/Albert N. Olsen /s/Gary T. Jolliffe
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Albert N. Olsen Gary T. Jolliffe
Chairman Director, President and Chief Executive Officer
(Principal Executive Officer)
Date: January 12, 2007 Date: January 12, 2007
/s/Michael A. Shriner /s/Jeffrey E. Smith
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Michael A. Shriner Jeffrey E. Smith
Director, Executive Vice President Vice President and Chief Financial Officer
and Chief Operating Officer (Principal Financial and Accounting Officer)
Date: January 12, 2007 Date: January 12, 2007
/s/E. Haas Gallaway, Jr. /s/W. Scott Gallaway
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E. Haas Gallaway, Jr. W. Scott Gallaway
Director Director
Date: January 12, 2007 Date: January 12, 2007
/s/Thomas G. McCain /s/Ferdinand J. Rossi
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Thomas G. McCain Ferdinand J. Rossi
Director Director
Date: January 12, 2007 Date: January 12, 2007
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the plan
administrator of the Millington Savings Bank Savings Plan has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Millington, State of New Jersey on this 12th day
of January, 2007.
Millington Savings Bank
Savings Plan
By: /s/Gary T. Jolliffe
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Gary T. Jolliffe
Its President
As Plan Administrator on behalf of
Milllington Savings Bank
INDEX TO EXHIBITS
Exhibit Description
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4.1 Millington Savings Bank Savings Plan Plan Document
4.2 Millington Savings Bank Savings Plan Adoption Agreement
4.3 Summary Plan Description of the Plan
5.1 Favorable determination letter dated November 27, 2001, confirming that
the Plan is qualified under Section 401 of the Internal Revenue Code of
1986, as amended
23.1 Consent of Beard Miller Company LLP