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As filed with the Securities and Exchange Commission on February 11, 1998
Registration No. 333-42523
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 2 TO FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
COLUMBIA FINANCIAL OF KENTUCKY, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Ohio 6036 61-1319175
- ------------------------------- ---------------------------- ----------------
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. employer
incorporation or organization) Classification Code Number) identification
number)
2497 DIXIE HIGHWAY
FT. MITCHELL, KENTUCKY 41017-3085
(606) 331-2419
-------------------------------------------------------------
(Address, including Zip Code, and telephone number, including
area code, of registrant's principal executive offices)
ROBERT V. LYNCH
COLUMBIA FINANCIAL OF KENTUCKY, INC.
2497 DIXIE HIGHWAY
FT. MITCHELL, KENTUCKY 41017-3085
(606) 331-2419
-------------------------------------------------------------
(Name, address, including Zip Code, and telephone number, including
area code, of agent for service)
With copies to:
Cynthia A. Shafer
Vorys, Sater, Seymour and Pease LLP
Atrium Two, 221 East Fourth Street
Cincinnati, Ohio 45202
(513) 723-4000
Approximate date of commencement of proposed sale of the securities to
the public: As soon as practicable after this Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 of the Securities
Act of 1933, check the following box: [X]
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------
Title of each class Proposed maximum Proposed maximum
of securities to be Amount to offering price aggregate Amount of
registered be registered per share offering price(1) registration fee
- ------------------------------------------------------------------------------------------------------------
Common shares,
without par value 2,671,450 shares $10.00 $26,714,500 $7,881.00
============================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee.
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
STATEMENT 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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
* Legal Fees and Expenses $177,000
* Printing, EDGAR Formatting, Postage and Mailing 79,049
Appraisal Fees and Expenses 17,000
* Accounting Fees and Expenses 40,000
* Blue Sky Filing Fees and Expenses 10,000
Federal Filing Fees 16,496
NASD Filing Fees 3,171
Conversion Agent Fees 9,500
* Other Expenses 20,257
** Underwriting Fees and Expenses 285,527
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Total estimated expenses $658,000
========
<FN>
- -----------------------------
* Estimated.
** Columbia Federal and CFKY have retained Charles Webb & Company, a
division of Keefe, Bruyette & Woods, Inc. ("Webb"), to assist in the
marketing of the Common Shares. Webb will consult with and advise
Columbia Federal and CFKY and assist with the sale of the Common Shares
in connection with the Conversion on a best efforts basis. The services
to be rendered by Webb include assisting CFKY in conducting the
Subscription Offering and the Community Offering and educating Columbia
Federal personnel about the Conversion process.
For its services, Webb will receive a commission equal to 1.50% of the
aggregate purchase price paid for shares sold to residents of Boone
County or Kenton County, Kentucky; 1.25% of the aggregate purchase
price of Common Shares sold to residents of counties contiguous to
Boone County or Kenton County, Kentucky; and 0.75% of the aggregate
purchase price of Common Shares sold to persons not residents of Boone
County or Kenton County, Kentucky, or counties contiguous thereto. No
commission will be paid on amounts paid by Columbia Federal's
directors, executive officers or employees and their immediate family
members and the ESOP. In the event that Columbia Federal requests Webb
to obtain the assistance of other broker-dealers to sell Common Shares
in the Community Offering, Webb will be paid a commission of 5.5% of
the aggregate purchase price of Common Shares sold by such
broker-dealers, from which such broker-dealers will be paid, instead of
the commission based upon the residence of the purchasers.
Sales commissions payable to Webb have been computed based upon the
following assumptions: (i) 2,020,000 Common Shares will be sold in
connection with the Conversion; (ii) 200,500 of such Common Shares will
be purchased by directors, officers and employees of Columbia Federal
and the members of their immediate families, (iii) eight percent of
such Common Shares will be purchased by the ESOP; and (iv) the
remaining 1,657,900 Common Shares sold in connection with the
Conversion will be purchased with sales commissions of 1.50%, 1.25% and
0.75% on 60%, 20% and 20%, respectively, of the aggregate dollar amount
paid for such Common Shares. A management fee of $25,000 has already
been paid to Webb and such amount will be deducted from the commission.
Columbia Federal will reimburse Webb for all reasonable out-of-pocket
expenses, including legal fees, not to exceed $35,000.
ITEM 14. INDEMNIFICATION OF OFFICERS AND DIRECTORS OF COLUMBIA FEDERAL.
(A) FEDERAL REGULATIONS
As a federal savings and loan association, Columbia Federal is
subject to federal regulations which provide that any person against whom any
action, suit or other judicial or administrative proceeding, or threatened
proceeding, whether civil, criminal, or otherwise, including any appeal or other
proceeding for review (an "Action"), is brought by reason of the fact that such
person is or was a director, officer or employee of Columbia Federal shall be
indemnified by Columbia Federal for the following:
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(i) Reasonable costs and expenses, including reasonable
attorney's fees actually paid or incurred by such person in connection with
proceedings related to the defense or settlement of an Action:
(ii) Any amount for which such person becomes liable by
reason of any judgment in an Action; and
(iii) Reasonable costs and expenses, including reasonable
attorney's fees, actually paid or incurred in any Action to enforce his rights
under this section if the person attains a final judgment in favor of such
person in such Action.
Such indemnification shall be made to such officer, director
or employee only if the following requirements are met:
(i) Columbia Federal shall make the indemnification in
connection with any Action which results in a final judgment on the merits in
favor of such director, officer or employee; and
(ii) Columbia Federal shall make the indemnification in case
of (A) settlement of any Action, (B) final judgment against such director,
officer or employee, or (C) final judgment in favor of such director, officer or
employee other than on the merits, only if a majority of the directors of
Columbia Federal determines that such director, officer or employee was acting
in good faith within what he or she reasonably believed under the circumstances
was the scope of his or her employment or authority and for a purpose which he
or she reasonably believed under the circumstances was in the best interest of
Columbia Federal or its stockholders.
Columbia Federal may authorize payment of reasonable costs and
expenses, including reasonable attorney's fees arising from the defense or
settlement of any Action, to any director, officer or employee if a majority of
the directors of Columbia Federal conclude that such person may become entitled
to indemnification. The directors of Columbia Federal may impose conditions on
such payment, and, before making an advance payment, Columbia Federal shall
obtain an agreement from such person that Columbia Federal will be repaid if the
person on whose behalf payment is made is later determined not to be entitled to
such indemnification.
Columbia Federal currently maintains a directors' and officers'
liability policy with CNA Insurance Companies providing for insurance of
directors and officers for liability incurred in connection with performance of
their duties as directors and officers. Such policy does not, however, provide
insurance for losses resulting from willful or criminal misconduct.
(B) CFKY'S CODE OF REGULATIONS
Article Five of CFKY's Code of Regulations provides for the
indemnification of officers and directors as follows:
SECTION 5.01. INDEMNIFICATION. The corporation shall indemnify any
officer or director of the corporation who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (including,
without limitation, any action threatened or instituted by or in the right of
the corporation), by reason of the fact that he is or was a director, officer,
employee, agent or volunteer of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee, member,
manager, agent or volunteer of another corporation (domestic or foreign,
nonprofit or for profit), limited liability company, partnership, joint venture,
trust or other enterprise, against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript costs),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if his act or omission
giving rise to any claim for indemnification under this Section 5.01 was not
occasioned by his intent to cause injury to the corporation or by his reckless
disregard for the best interests of the corporation, and in respect of any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. It shall be presumed that no act or omission of a person claiming
indemnification under this Section 5.01 that gives rise to such claim was
occasioned by an intent to cause injury to the corporation or by a reckless
disregard for the best interests of the corporation and, in respect of any
criminal matter, that such person had no reasonable cause to believe his conduct
was unlawful; the presumption
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recited in this Section 5.01 can be rebutted only by clear and convincing
evidence, and the termination of any action, suit or proceeding by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
SECTION 5.02. COURT-APPROVED INDEMNIFICATION. Anything
contained in the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or
director of the corporation who was a party to any completed action or suit
instituted by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee,
agent or volunteer of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, member, manager,
agent or volunteer of another corporation (domestic or foreign, nonprofit or for
profit), limited liability company, partnership, joint venture, trust or other
enterprise, in respect of any claim, issue or matter asserted in such action or
suit as to which he shall have been adjudged to be liable for an act or omission
occasioned by his deliberate intent to cause injury to the corporation or by his
reckless disregard for the best interests of the corporation, unless and only to
the extent that the Court of Common Pleas of Hamilton County, Ohio, or the court
in which such action or suit was brought shall determine upon application that,
despite such adjudication of liability, and in view of all the circumstances of
the case, he is fairly and reasonably entitled to such indemnity as such Court
of Common Pleas or such other court shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated by this
Section 5.02.
SECTION 5.03. INDEMNIFICATION FOR EXPENSES. Anything
contained in the Regulations or elsewhere to the contrary notwithstanding, to
the extent that an officer or director of the corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in Section 5.01, or in defense of any claim, issue or matter
therein, he shall be promptly indemnified by the corporation against expenses
(including, without limitation, attorneys' fees, filing fees, court reporters'
fees and transcript costs) actually and reasonably incurred by him in
connection therewith.
SECTION 5.04. DETERMINATION REQUIRED. Any indemnification
required under Section 5.01 and not precluded under Section 5.02 shall be made
by the corporation only upon a determination that such indemnification is
proper in the circumstances because the officer or director has met the
applicable standard of conduct set forth in Section 5.01. Such determination
may be made only (A) by a majority vote of a quorum consisting of directors of
the corporation who were not and are not parties to, or threatened with, any
such action, suit or proceeding, or (B) if such a quorum is not obtainable or
if a majority of a quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has performed
services for the corporation, or any person to be indemnified, within the past
five years, or (C) by the shareholders, or (D) by the Court of Common Pleas of
Hamilton County, Ohio, or (if the corporation is a party thereto) the court in
which such action, suit or proceeding was brought, if any; any such
determination may be made by a court under division (D) of this Section 5.04 at
any time including, without limitation, any time before, during or after the
time when any such determination may be requested of, be under consideration by
or have been denied or disregarded by the disinterested directors under
division (A) or by independent legal counsel under division (B) or by the
shareholders under division (C) of this Section 5.04; and no failure for any
reason to make any such determination, and no decision for any reason to deny
any such determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Section 5.04 shall be evidence in rebuttal of the
presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal counsel
under division (B) of this Section 5.04 to make indemnification in respect of
any claim, issue or matter asserted in an action or suit threatened or brought
by or in the right of the corporation shall be promptly communicated to the
person who threatened or brought such action or suit, and within ten (10) days
after receipt of such notification such person shall have the right to petition
the Court of Common Pleas of Hamilton County, Ohio, or the court in which such
action or suit was brought, if any, to review the reasonableness of such
determination.
SECTION 5.05. ADVANCES FOR EXPENSES. The provisions of
Section 1701.13(E)(5)(a) of the Ohio Revised Code do not apply to the
corporation. Expenses (including, without limitation, attorneys' fees, filing
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fees, court reporters' fees and transcript costs) incurred in defending any
action, suit or proceeding referred to in Section 5.01 shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding to or on behalf of the officer or director promptly as such expenses
are incurred by him, but only if such officer or director shall first agree, in
writing, to repay all amounts so paid in respect of any claim, issue or other
matter asserted in such action, suit or proceeding in defense of which he shall
not have been successful on the merits or otherwise if it is proved by clear and
convincing evidence in a court of competent jurisdiction that, in respect of any
such claim, issue or other matter, his relevant action or failure to act was
occasioned by his deliberate intent to cause injury to the corporation or his
reckless disregard for the best interests of the corporation, unless, and only
to the extent that, the Court of Common Pleas of Hamilton County, Ohio, or the
court in which such action or suit was brought shall determine upon application
that, despite such determination, and in view of all of the circumstances, he is
fairly and reasonably entitled to all or part of such indemnification.
SECTION 5.06 ARTICLE FIVE NOT EXCLUSIVE. The indemnification
provided by this Article Five shall not be exclusive of, and shall be in
addition to, any other rights to which any person seeking indemnification may be
entitled under the Articles, the Regulations, any agreement, a vote of
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be an officer or director of the
corporation and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
SECTION 5.07. INSURANCE. The corporation may purchase and
maintain insurance, or furnish similar protection, including but not limited to
trust funds, letters of credit, or self-insurance, for or on behalf of any
person who is or was a director, officer, employee, agent or volunteer of the
corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, agent or volunteer of
another corporation (domestic or foreign, nonprofit or for profit), limited
liability company, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the obligation or the power to indemnify him against such liability
under the provisions of this Article Five. Insurance may be purchased from or
maintained with a person in which the corporation has a financial interest.
SECTION 5.08. CERTAIN DEFINITIONS. For purposes of this
Article Five, and as an example and not by way of limitation:
(A) A person claiming indemnification under this Article Five
shall be deemed to have been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 5.01, or in defense of any
claim, issue or other matter therein, if such action, suit or proceeding shall
be terminated as to such person, with or without prejudice, without the entry of
a judgment or order against him, without a conviction of him, without the
imposition of a fine upon him and without his payment or agreement to pay any
amount in settlement thereof (whether or not any such termination is based upon
a judicial or other determination of the lack of merit of the claims made
against him or otherwise results in a vindication of him).
(B) References to an "other enterprise" shall include employee
tax benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references to
"serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries.
SECTION 5.09. VENUE. Any action, suit or proceeding to
determine a claim for, or for repayment to the corporation of, indemnification
under this Article Five may be maintained by the person claiming such
indemnification, or by the corporation, in the Court of Common Pleas of Hamilton
County, Ohio. The corporation and (by claiming or accepting such
indemnification) each such person consent to the exercise of jurisdiction over
its or his person by the Court of Common Pleas of Hamilton County, Ohio, in any
such action, suit or proceeding.
The Board of Directors is authorized, at their discretion, to obtain
policies of insurance insuring the Association against loss caused by the acts
of its directors, officers or employees and insuring its directors, officers or
employees for those expenses which an association may indemnify such director,
officer or employee under the authority of Revised Code Section 1151.151.
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ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
No securities of CFKY have been sold by CFKY without
registration pursuant to the Act, except as follows:
Effective October 14, 1997, in connection with the
incorporation of CFKY, 100 common shares, without par value, of CFKY (the
"Securities") were sold for an aggregate purchase price of $100 pursuant to
Section 4(2) of the Act in a transaction not involving any public offering. The
Securities were sold to Robert V. Lynch, the President of CFKY, who had access
to all material information about CFKY. The Securities were offered without the
use of any form of general solicitation or advertising. No underwriter was
involved in the transaction, and no commission, discount or other remuneration
was paid or given in connection with the sale of the Securities. Under the terms
of the Subscription Agreement between CFKY and Mr. Lynch, the Securities will be
repurchased by CFKY on the effective date of the Conversion.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS
The exhibits filed as a part of this amended Registration
Statement are as follows:
*1.1 Engagement letter with Charles Webb &
Company, a division of Keefe, Bruyette &
Woods, Inc. ("Webb")
*1.2 Agency Agreement with Webb (proposed)
*2 Amended Plan of Conversion
*3.1 Articles of Incorporation of Columbia
Financial of Kentucky, Inc.
*3.2 Code of Regulations of Columbia
Financial of Kentucky, Inc.
*5 Opinion of Vorys, Sater, Seymour and
Pease LLP regarding legality of
securities being offered
*8.1 Opinion of Vorys, Sater, Seymour and
Pease LLP regarding tax matters
*8.2 Opinion of VonLehman & Company Inc.
regarding tax matters
*10.1 Columbia Financial of Kentucky, Inc.,
1998 Stock Option and Incentive Plan
(proposed)
*10.2 Columbia Financial of Kentucky, Inc.,
Recognition and Retention Plan
(proposed)
*10.3 Employment Agreement between Columbia
Federal Savings Bank and Robert V. Lynch
(proposed)
*10.4 Severance Agreement between Columbia
Federal Savings Bank and five other
executive officers of Columbia Federal
Savings Bank (proposed)
*10.5 Tax Allocation Agreement between
Columbia Federal Savings Bank and
Columbia Financial of Kentucky, Inc.
(proposed)
*21 Subsidiaries
*23.1 Consent of VonLehman & Company Inc.
23.2 Consent of Keller & Company, Inc.
*23.3 Consent of Vorys, Sater, Seymour and
Pease LLP
24.1 Power of Attorney for Abijah Adams
24.2 Power of Attorney for
J. Robert Bluemlein
24.3 Power of Attorney for Kenneth R. Kelly
24.4 Power of Attorney for John C. Layne
24.5 Power of Attorney for Daniel T. Mistler
24.6 Power of Attorney for
Fred A. Tobergte, Sr.
24.7 Power of Attorney for Geraldine Zembrodt
*27 Financial Data Schedule
*99.1 Summary Proxy Statement
*99.2 Order Form and Form of Certification
*99.3 Form of Proxy
*99.4 Solicitation and Marketing Material
*99.5 Appraisal Agreement between Columbia
Federal Savings Bank and Keller &
Company, Inc.
*99.6 Appraisal Report prepared by Keller &
Company, Inc.
99.7 Opinion of Keller & Co., Inc.,
concerning the value of subscription
rights for tax purposes
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* Previously filed.
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(B) FINANCIAL STATEMENT SCHEDULES
No financial statement schedules are filed because the
required information is not applicable or is included in the consolidated
financial statements or related notes.
ITEM 17. UNDERTAKINGS.
(a) The undersigned, CFKY, 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 Act;
(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.
(2) That, for the purpose of determining any
liability under the 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) Insofar as indemnification for liabilities arising under
the Act may be permitted to directors, officers and controlling persons of CFKY,
pursuant to the foregoing provisions or otherwise, CFKY 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 CFKY of expenses incurred or paid by a director, officer or
controlling person of CFKY 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, CFKY 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Pre-Effective Amendment No. 2 to the
Registration Statement on Form S-1 to be signed on its behalf by the
undersigned, duly authorized to do so, in the City of Ft. Mitchell, Commonwealth
of Kentucky, on February 11, 1998.
By: /s/ Robert V. Lynch
--------------------------------------
Robert V. Lynch
President, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-1 has been signed below by the following
persons in the capacities and as of the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert V. Lynch
- ----------------------------- President, Chief Executive Officer February 11, 1998
Robert V. Lynch (Principal Executive Officer) -----------------------------
and Director
Treasurer February 11, 1998
* Abijah Adams (Principal Financial and Accounting ------------------------------
Officer)
Director February 11, 1998
* J. Robert Bluemlein ------------------------------
Director February 11, 1998
* Kenneth R. Kelly ------------------------------
Director February 11, 1998
* John C. Layne ------------------------------
Director February 11, 1998
* Daniel T. Mistler ------------------------------
Director February 11, 1998
* Fred A. Tobergte, Sr. -----------------------------
Director February 11, 1998
* Geraldine Zembrodt ------------------------------
* By Power of Attorney
/s/ Robert V. Lynck
- -----------------------------
Robert V. Lynck, Attorney-in-fact
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