As filed with the Securities and Exchange Commission on February 13, 1998
Registration No. ________________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KS BANCORP, INC.
(Exact name of Registrant as specified in its charter)
North Carolina 56-1842707
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Post Office Box 219
207 West Second Street
Kenly, North Carolina 27542
(Address of Principal Executive Offices)
KS BANCORP, INC. EMPLOYEE STOCK OPTION PLAN
KS BANCORP, INC.
NONQUALIFIED STOCK OPTION PLAN FOR DIRECTORS
(Full title of the Plans)
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HAROLD T. KEEN, President
KS Bancorp, Inc.
Post Office Box 219
207 West Second Street
Kenly, North Carolina 27542
(919) 284-4157
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
RANDALL A. UNDERWOOD
Brooks, Pierce, McLendon,
Humphrey & Leonard, L.L.P.
Post Office Box 26000
2000 Renaissance Plaza
230 North Elm Street
Greensboro, North Carolina 27420
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered/1/ Offering Price Aggregate Offering Registration
Per Unit Price/4/ Fee
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Common Stock, no par value 161,789/2/ $7.50/3/ $1,213,418.00 $357.96
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(Footnotes on Next Page)
This Registration Statement shall become effective upon filing in accordance
with Section 8(a) of the Securities Act of 1933, as amended, and 17 C.F.R.
(S)230.462.
/1/ Together with an indeterminate number of additional shares which may
be necessary to adjust the number of shares reserved for issuance pursuant to
the KS Bancorp, Inc. Employee Stock Option Plan ("Employee Stock Option Plan")
and KS Bancorp, Inc. Nonqualified Stock Option Plan for Directors ("Director
Stock Option Plan") as a result of a reclassification, reorganization,
recapitalization, stock split, stock dividend or similar occurrence which makes
an adjustment of shares just and appropriate.
/2/ Represents the total number of shares which may be issued pursuant to
options granted under the Employee Stock Option Plan and Director Stock Option
Plan.
/3/ For purposes of calculating the registration fee, the proposed maximum
offering price per unit is the exercise price for options to purchase 161,789
shares which have been granted under the Employee Stock Option Plan and Director
Stock Option Plan.
/4/ Estimated total for the purposes of calculating the registration fee
in accordance with Rule 457(h).
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Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item I. Plan Information.
This Registration Statement on Form S-8 relates to the registration of up
to 107,861 shares of common stock, no par value, of KS Bancorp, Inc. (the
"Registrant") which are reserved for issuance pursuant to options which have
been or may be granted under the KS Bancorp, Inc. Employee Stock Option Plan
("Employee Stock Option Plan") and up to 53,928 shares of common stock, no par
value, of the Registrant which are reserved for issuance pursuant to options
which have been or may be granted under the KS Bancorp, Inc. Nonqualified Stock
Option Plan for Directors ("Director Stock Option Plan"). The Employee Stock
Option Plan and Director Stock Option Plan are hereinafter referred to
collectively as the "Stock Option Plans". This Registration Statement also
relates to an indeterminate number of additional shares which may be necessary
to adjust the number of shares reserved for issuance pursuant to the Stock
Option Plans as a result of a reclassification, reorganization,
recapitalization, stock split, stock dividend or similar occurrence which makes
an adjustment of shares just and appropriate. Documents containing the
information specified in Part I of Form S-8 will be sent or given to the
participants in the Stock Option Plans 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.
Item 2. Registration Information and Employee Plan Annual Information.
The required statement is contained in the prospectus to be delivered
pursuant to Part I of this Registration Statement as specified by Rule
428(b)(1).
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated herein
by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(b) All reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since the end of the fiscal year covered by the
Registrant's Annual Report on Form 10-K referred to in clause (a)
above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-1, Registration No. 33-
69522, filed by the Registrant with the Commission on September 28,
1993, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities registered hereby have
been sold or which deregisters all securities then remaining unsold,
shall be deemed incorporated by reference herein and to be a part hereof from
the date of the filing of such documents. Any statement contained in this
Registration Statement, or in a document incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein, or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference herein, 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation provide that to the fullest
extent permitted by the North Carolina Business Corporation Act (the "NCBCA"),
no person who serves as a director shall be personally liable to the Registrant
or any of its stockholders or otherwise for monetary damages for breach of any
duty as director. The Registrant's Bylaws state that any person who at any time
serves or has served as a director or officer of the Registrant, or who, while
serving as a director or officer of the Registrant, serves or has served at the
request of the Registrant as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or as a trustee or administrator under an employee benefit plan,
shall have a right to be indemnified by the Registrant to the fullest extent
permitted by law against liability and litigation expense arising out of such
status or activities in such capacity. "Liability and litigation expense" is
defined in the Bylaws as including costs and expenses of litigation (including
reasonable attorneys' fees), judgments, fines and amounts paid in settlement
which are actually and reasonably incurred in connection with or as a
consequence of any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, including appeals.
Litigation expense, as described above, may be paid by the Registrant in
advance of the final disposition or termination of the litigation matter, if the
Registrant receives an undertaking, dated, in writing and signed by the person
to be indemnified, to repay all such sums unless such person is ultimately
determined to be entitled to be indemnified by the Registrant as provided in the
Registrant's Bylaws.
Sections 55-8-50 through 55-8-58 of the NCBCA contain provisions
prescribing the extent to which directors and officers shall or may be
indemnified. Section 55-8-51 of the NCBCA permits a corporation, with certain
exceptions, to indemnify a present or former director against liability if (i)
the director conducted himself in good faith, (ii) the director reasonably
believed (x) that the director's conduct in the director's official capacity
with the corporation was in its best interests and (y) in all other cases the
director's conduct was at least not opposed to the corporation's best interests,
and (iii) in the case of any criminal proceeding, the director had no reasonable
cause to believe the director's conduct
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was unlawful. A corporation may not indemnify a director in connection with a
proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation or in connection with a proceeding charging
improper personal benefit to the director. The above standard of conduct is
determined by the board of directors, or a committee or special legal counsel or
the shareholders as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the NCBCA require a corporation to
indemnify a director or officer in the defense of any proceeding to which the
director or officer was a party against reasonable expenses when the director or
officer is wholly successful in the director's or officer's defense, unless the
articles of incorporation provide otherwise. Upon application, the court may
order indemnification of the director or officer if the director or officer is
adjudged fairly and reasonably so entitled under Section 55-8-54.
In addition, Section 55-8-57 permits a corporation to provide for
indemnification of directors, officers, employees or agents, in its articles of
incorporation or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance policies on behalf of
these individuals.
The foregoing is only a general summary of certain aspects of North
Carolina law dealing with indemnification of directors and officers and does not
purport to be complete. It is qualified in its entirety by reference to the
relevant statutes, which contain detailed specific provisions regarding the
circumstances under which, and the persons for whose benefit, indemnification
shall or may be made.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-B):
Exhibit No. Description of Document
----------- -----------------------
3.1 The Registrant's Articles of Incorporation
(incorporated by reference to Exhibit 3.1 of the
Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994)
3.2 The Registrant's Bylaws (incorporated by reference
to Exhibit 3.2 of the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31,
1994)
4.0 Specimen Stock Certificate for the Registrant
(incorporated by reference to Exhibit 4.1 of the
Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994)
3
5.0 Opinion of Brooks, Pierce, McLendon, Humphrey &
Leonard, L.L.P. as to the legality of securities
being registered
10.1 KS Bancorp, Inc. Employee Stock Option Plan
(incorporated by reference to Exhibit 10.8 of
Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994)
10.2 KS Bancorp, Inc. Nonqualified Stock Option Plan for
Directors (incorporated by reference to Exhibit
10.9 of Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994)
23.1 Consent of Brooks, Pierce, McLendon, Humphrey &
Leonard, L.L.P. (included in Exhibit 5.0)
23.2 Consent of McGladrey & Pullen, LLP
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 the Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) Reflect in the prospectus any facts or events arising which,
individually or in the aggregate, 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% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
Registration Statement;
(iii) 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 (1)(i) and (1)(ii) above do not apply if
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the information required in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
4
(2) For determining liability under the Securities 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 that remain unsold at the termination of the
offering.
(4) For purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
5
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, on February 5, 1998.
KS BANCORP, INC.
Registrant
By: /s/ Harold T. Keen
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Harold T. Keen, President
6
Each person whose individual signature appears below hereby makes,
constitutes and appoints Harold T. Keen to sign for such person and in such
person's name and capacity indicated below, any and all amendments to this
Registration Statement, including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Date: February 5, 1998 By: /s/ Harold T. Keen
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Harold T. Keen, President and Director
(Principal Executive Officer)
Date: February 5, 1998 By: /s/ Helen B. Pollock
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Helen B. Pollock,
Treasurer
(Principal Financial Officer and
Principal Accounting Officer)
Date: February 5, 1998 By: /s/ Robert E. Fields
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Robert E. Fields, Director
Date: February 5, 1998 By: /s/ R. Harold Hinnant
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R. Harold Hinnant, Director
Date: February 5, 1998 By: /s/ James C. Parker
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James C. Parker, Director
Date: February 5, 1998 By: /s/ R. Elton Parrish
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R. Elton Parrish, Director
Date: February 5, 1998 By: /s/ Ralph Edward Scott
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Ralph Edward Scott, Jr., Director
Date: February 5, 1998 By: /s/ H. Elwin Watson
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H. Elwin Watson, Director
Date: February 5, 1998 By: /s/ J. Hayden Wiggs
----------------------------------------
J. Hayden Wiggs, Director
Date: February 5, 1998 By: /s/ James C. Woodard
----------------------------------------
James C. Woodard, Director
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EXHIBIT INDEX
Method of
Exhibit No. Description Filing
- ----------- ----------- ---------
3.1 The Registrant's Articles of Incorporation Incorporated by
Reference
3.2 The Registrant's Bylaws Incorporated by
Reference
4.0 Specimen Stock Certificate for the Incorporated by
Registrant Reference
5.0 Opinion of Brooks, Pierce, McLendon, Filed Herewith
Humphrey & Leonard, L.L.P. as to legality
of securities being registered
10.1 KS Bancorp, Inc. Employee Stock Option Plan Incorporated by
Reference
10.2 KS Bancorp, Inc. Nonqualified Stock Option Incorporated by
Plan for Directors Reference
23.1 Consent of Brooks, Pierce, McLendon, Filed Herewith
Humphrey & Leonard, L.L.P. (included in
Exhibit 5.0)
23.2 Consent of McGladrey & Pullen, LLP Filed Herewith
8