As filed with the Securities and Exchange Commission on August 10, 2001
Registration No. 333-57684
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CHARTER FINANCIAL CORP.
(exact name of registrant as specified in its charter)
United States 6035 Application Pending
(state or other jurisdiction of (Primary Standard (IRS Employer
incorporation or organization) Classification Code Number) Identification No.)
Identification No.)
c/o CharterBank
600 Third Avenue
West Point, GA 31833
(706) 645-1391
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
____________
Robert L. Johnson
President and Chief Executive Officer
CharterBank
600 Third Avenue
West Point, Georgia 31833
(706) 645-1391
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
____________
Copies to:
V. Gerard Comizio, Esq. John J. Spidi, Esq.
Thacher Proffitt & Wood Malizia and Spidi, P.C.
1700 Pennsylvania Ave, N.W., Ste. 800 1100 New York Avenue, N.W.
Washington, D.C. 20006 Suite 340 West
(202) 347-8400 Washington, DC 20005
(202) 434-4660
____________
Approximate date of commencement of proposed sale to 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 under the Securities Act of
1933, check the following box / X /
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CALCULATION OF REGISTRATION FEE
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Title of each Class of Amount to be Proposed Maximum Proposed Maximum Amount of Registration
Securities to be Registered Registered(1) Offering Price Per Share(2) Aggregate Offering Price (2) Fee(3)
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Common Stock, 6,083,500 $10.00 $60,835,000 $15,209
$.01 par value
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(1) Includes the maximum number of shares that may be issued in connection with
this offering.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Fee previously paid.
The Registrant hereby amends this Registration 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 Section 8(a), may determine.
Note
----
This Amendment No. 4 to the Registration Statement on Form S-1 is being
filed solely to update Exhibit 8.1 -- Opinion of Thacher Proffitt & Wood
regarding federal tax matters.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
SEC Registration Fee (1)........................................... $ 15,209
OTS application fee and registration............................... 14,400
NASD filing fee.................................................... 5,000
Nasdaq National Market Listing Fee (2)............................. 90,000
Printing, postage and mailing...................................... 100,000
Legal fees and expenses............................................ 400,000
Placement Agent's fees and commissions (3)......................... 450,000
Placement Agent's expenses (excluding counsel fees)................ 50,000
Placement Agent's counsel fees and expenses........................ 75,000
Accounting fees and expenses....................................... 200,000
Appraiser's fees and expenses (including preparing business plan).. 100,000
Conversion agent fees and expenses................................. 15,000
Certificate printing............................................... 10,000
Blue Sky fees and expenses (including fees of counsel)............. 10,000
Miscellaneous...................................................... 15,391
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TOTAL.............................................................. $1,550,000
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_____________
(1) Expenses based upon the registration and sale of 6,083,500 shares each at
$10.00 per share.
(2) Based total shares outstanding of 23,000,000.
(3) Assumes 2.5% commission paid on sale of 4,600,000 shares and excluding ESOP
shares and shares purchased by management.
Item 14. Indemnification of Directors and Officers.
12 C.F.R. Section 545.121 of OTS Regulations sets forth the ability of a
federal savings & loan association to indemnify its officers and directors. This
section provides that a savings association shall indemnify any person against
whom an action is brought or threatened because that person is or was a
director, officer or employee of the association for: (1) any amount for which
that person become liable under a judgment if such action; and (2) reasonable
costs and expenses, including reasonable attorney's fees paid or incurred by
that person in defending or settling such action, or in enforcing his or her
rights under such section if he or she attains a favorable judgment in such
enforcement action.
Indemnification shall be made to such individuals if (1) final judgments
on the merits is in the individual's favor; or (2) in case of (i) settlement;
(ii) Final judgment against the individual, or (iii) final judgment in the
individual's favor, other than on the merits, if a majority of the disinterested
directors determine that the individual was acting in good faith within the
scope of his or her employment or authority as he or she could have reasonably
perceived it under the circumstances and for a purpose he or she could
reasonably have believed under the circumstances was in the best interests of
the savings association or its members.
The section also provides that no indemnification may be made unless the
association gives the OTS 60 days notice of its intention to make such
indemnification.
In addition to providing indemnification, under OTS Regulations, a savings
association may obtain insurance to protect it and its officers, directors and
employees from potential losses arising from claims against any of them for
alleged wrongful acts, or wrongful acts, committed in their capacity as
directors, officers or employees. However, the savings association may not
obtain insurance which provides for payment of losses of any person incurred as
a consequence of his or her willful or criminal misconduct.
Section 545.121 of OTS regulations is subject to and qualified by 12 U.S.C
(S) 1821(k) which provides in general that a director or officer of an insured
depository institution may be held personally liable for monetary damages by,
on behalf of, or at the request or direction of the Federal Deposit Insurance
Corporation in certain circumstances.
Article XII of both the Charter Financial Corp.'s and CharterBank's Bylaws
provide that it shall indemnify any person against whom an action is brought or
threatened because that person is or was a director, officer or employee of the
Charter Financial Corp. or CharterBank for: (a) any amount for which that person
becomes liable under a judgment in such action; and (b) 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 the indemnification section of the bylaws if he or she attains a
favorable judgment in such enforcement action. These bylaw sections mirror OTS
regulations as set forth above.
Section 19 of the Bylaws of the First Charter, MHC provide that the mutual
holding company shall indemnify its officers, directors and employees to the
fullest extent permitted by the rules and regulations of the OTS at 12 C.F.R.
(S) 545.121.
CharterBank and Charter Financial Corp. have each entered into a separate
Employment Agreement with Robert L. Johnson. The Agreements each provide for
indemnification to be provided to Mr. Johnson to the fullest extent permitted
under federal law. CharterBank is also a party to Change of Control Agreements
with certain officers of CharterBank which provide for indemnification for
attorneys' fees in some instances. These Change of Control Agreements are
guaranteed by Charter Financial Corp.
Item 15. Recent Sales of Unregistered Securities.
Not Applicable.
Item 16. Exhibits and Financial Statement Schedules.
The exhibits and financial statement schedules filed as a part of this
Registration Statement are as follows:
(a) List of Exhibits.
1.1 Engagement Letter dated March 1, 2001, between CharterBank and
Sandler O'Neill & Partners, L.P.*
1.2 Form of Agency Agreement, between CharterBank and Sandler O'Neill &
Partners, L.P.*
2.1 CharterBank Amended Plan of Reorganization from Mutual Savings Bank to
Mutual Holding Company and Stock Issuance****
3.1 Federal Stock Charter of Charter Financial Corp.*
3.2 Bylaws of Charter Financial Corp.*
3.3 Federal Stock Charter of CharterBank**
3.4 Bylaws of CharterBank*
3.5 Federal Stock Charter of First Charter, MHC*
3.6 Bylaws of First Charter, MHC*
4.1 Federal Stock Charter of Charter Financial Corp. (See Exhibit
3.1)*
4.2 Bylaws of Charter Financial Corp. (See Exhibit 3.2)*
4.3 Form of Stock Certificate of Charter Financial Corp.*
5.1 Opinion of Thacher Proffitt & Wood regarding legality of securities to
be registered**
8.1 Opinion of Thacher Proffitt & Wood regarding federal tax matters
8.2 Opinion of Alston & Bird regarding Georgia state and local tax
matters**
8.3 Opinion of Alston & Bird regarding Alabama state and local tax
matters**
8.4 Letter from RP Financial, LC. regarding subscription rights*
10.1 Form of Employee Stock Ownership Plan of Charter Financial Corp.*
10.2 Form of Benefit Restoration Plan of Charter Financial Corp.*
10.3 Form of Employment Agreement by and among Robert L. Johnson and
Charter Financial Corp.**
10.4 Form of One Year Change in Control Agreement by and among certain
officers, Charter Financial Corp. and CharterBank**
10.5 Form of Two Year Change in Control Agreement by and among certain
officers, Charter Financial Corp. and CharterBank**
10.6 Form of Charter Financial Corp. 2001 Recognition and Retention
Plan**
10.7 Form of Charter Financial Corp. 2001 Stock Option Plan**
21.1 Form of Subsidiaries of the Registrant*
23.1 Consent of Thacher Proffitt & Wood (included in Exhibits 5.1** and 8.1
to this Registration Statement)
23.2 Consent of KPMG LLP****
23.3 Consent of RP Financial, LC.****
23.4 Consent of Alston & Bird (included in Exhibits 8.2 and 8.3 to this
Registration Statement)**
24.1 Powers of Attorney (included in Signature Page of this Registration
Statement)*
99.1 Appraisal Report of RP Financial, LC. (Tables filed in paper format
only)**
99.2 Updated Appraisal Report of RP Financial, LC. (Tables filed in paper
format only)**
99.3 Updated Appraisal Report of RP Financial, LC. (Tables filed in paper
format only)****
99.4 Form of marketing materials to be used in connection with the
offering***
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*Previously filed with the initial filing of the Registration Statement on
Form S-1 on March 27, 2001.
**Previously filed with Amendment No. 1 to the Registration Statement on Form
S-1 on May 18, 2001.
***Previously filed with Amendment No. 2 to the Registration Statement on Form
S-1 on July 30, 2001.
****Previously filed with Amendment No. 3 to the Registration Statement on Form
S-1 on August 10, 2001.
(b) Financial Statement Schedules.
All schedules have been omitted as not applicable or not required under the
rules of Regulation S-X.
Item 17. 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 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. 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
effective 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
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.
(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.
The undersigned Registrant hereby undertakes to furnish stock certificates
to or in accordance with the instructions of the respective purchasers of the
Common Stock, so as to make delivery to each purchaser promptly following the
closing under the Plan of Reorganization.
Insofar as indemnification by the Registrant 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 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of West Point, Georgia on
August 10, 2001.
Charter Financial Corp.
/s/ Robert L. Johnson
--------------------------------------
By: Robert L. Johnson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, and
any rules and regulations promulgated thereunder, this Registration Statement,
has been signed by the following persons in the capacities and on the dates
indicated.
Name Title Date
---- ----- ----
* Chairman of the Board August 10, 2001
----------------------
John W. Johnson, Jr.
* President, Chief Executive Officer August 10, 2001
---------------------- and Director (principal executive
Robert L. Johnson officer
* Director August 10, 2001
----------------------
David Z. Cauble, III
* Director August 10, 2001
----------------------
Jane W. Darden
* Director August 10, 2001
----------------------
William B. Hudson
* Director August 10, 2001
----------------------
Thomas M. Lane
* Director August 10, 2001
----------------------
R. Terry Taunton
* Chief Financial Officer, Vice August 10, 2001
---------------------- President and Treasurer (principal
Curtis R. Kollar accounting officer)
*/s/ Robert L. Johnson as attorney-in-fact by power of attorney dated March 22,
2001, as filed on March 27, 2001.