As filed with the Securities and Exchange Commission
on August 13, 2001 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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Charter Financial Corp.
(Exact name of registrant as specified in its charter)
United States Application Pending
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
c/o CharterBank
600 Third Avenue
West Point, GA 31833
(706) 645-1391
(Address, including Zip Code, of principal executive offices)
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CharterBank 401(k) Plan
(Full title of the Plan)
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Robert L. Johnson
President and Chief Executive Officer
CharterBank
600 Third Avenue
West Point, GA 31833
(706) 645-1391
Copy to:
V. Gerard Comizio, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, NW, Suite 800
Washington, DC 20006
(202) 347-8400
(Name and address, including Zip Code, telephone number and area code, of agent
for service)
_______________
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities to be Offering Price Per Share Proposed Maximum Aggregate Amount of
Registered Amount to be Registered(1) (2) Offering Price (2) Registration Fee
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Common Stock, $.01
par value 105,800 $10.00 1,058,000 $264.50
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Plan Participation
Interests(3) -- -- -- --
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(1) Based on the estimated number of shares of common stock of Charter
Financial Corp. ("Charter Financial") that could be purchased under the
CharterBank 401(k) Plan (the "Plan") with the current assets of the Plan.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to which shares of common stock of Charter
Financial offered pursuant to the Plan are deemed to be offered at $10 per
share, the price at which shares of Charter Financial common stock are
being offered to the public pursuant to the Registration Statement on Form
S-1, as amended (Registration No. 333-57684).
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests to
be offered pursuant to the employee benefit plan described herein.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such document
need not be filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended (the "Securities Act").
PART II
Item 3. Incorporation of Documents by Reference.
The following documents and information heretofore filed with the
Commission by the Registrant (File No. 333-57684) are incorporated by reference
in this registration statement:
(1) the Prospectus for Common Stock of Charter Financial Corp. dated March
27, 2001, as amended, filed with the Commission pursuant to Rule
424(b) under the Securities Act (Registration No. 333-57684); and
(2) the description of the Registrant's common stock (the "Common Stock")
contained in the Registrant's Registration Statement on Form 8-A,
dated August 10, 2001, Registration No. 000-33071.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date hereof and 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 are incorporated
herein by reference, and such documents shall be deemed to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this prospectus to the
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extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Charter Financial Corp. will provide without charge to each person to
whom this Prospectus is delivered, upon request of any such person, a copy of
any or all of the foregoing documents incorporated herein by reference (other
than exhibits to such documents). Written requests should be directed to: Curt
Kollar, CharterBank, 600 Third Avenue, West Point, Georgia 31833. Telephone
requests may be directed to (706) 645-1391.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. 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 judgements
on the merits is in the individual's favor; or (2) in case of (i) settlement;
(ii) final judgement against the individual, or (iii) final judgement 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 reasonable
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.
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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 in 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, the majority owner of
Charter Financial Corp., provides 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 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
4.1 The CharterBank 401(k) Plan and Adoption Agreement.
4.2 Investment Election Form of Charterbank.
4.3 Articles of Organization of Charter Financial Corp., incorporated
by reference to Exhibit 3.1, the Registrant's Registration
Statement on Form S-1, dated March 27, 2001, as amended,
Registration No. 333-57684, and any amendments thereto.
4.4 By-Laws of Charter Financial Corp., incorporated by reference to
the Registrant's Registration Statement on Form S-1, dated March
27, 2001, as amended, Registration No. 333-57684, and any
amendments thereto.
5 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to
the legality of the securities being registered, incorporated by
reference to Exhibit 5.1 to the Registrant's Registration
Statement on Form S-1, dated March 27, 2001, as amended,
Registration No. 333-57684, and any amendments thereto.
23.1 Consent of Thacher Proffitt & Wood, incorporated by reference to
Exhibit 23.1 to the Registrant's Registration Statement on Form
S-1, dated March 27, 2001, as amended, Registration No. 333-
57684, and any amendments thereto.
23.2 Consent of KPMG LLP.
Item 9. Undertakings.
A. Qualification of Plan. The undersigned Registrant hereby undertakes
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to submit the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the Plan under section 401(a) of the Internal Revenue
Code of 1986.
B. Rule 415 offering. The undersigned Registrant hereby undertakes:
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(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;
(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
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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 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(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 or 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 Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining 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.
C. Filings incorporating subsequent Exchange Act documents by reference.
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The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 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.
D. Incorporated annual and quarterly reports. The undersigned registrant
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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 are 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.
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E. Filing of registration on Form S-8. Insofar as indemnification for
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liabilities arising under the Securities 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 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 for 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 West Point, State of Georgia on July 31, 2001.
Charter Financial Corp.
(Registrant)
By: /s/ Robert L. Johnson
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Robert L. Johnson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ John W. Johnson, Jr. Chairman of the Board July 31, 2001
-------------------------------
John W. Johnson, Jr.
/s/ Robert L. Johnson President, Chief Executive Officer July 31, 2001
------------------------------- and Director
Robert L. Johnson
/s/ David Z. Cauble, III Director July 31, 2001
-------------------------------
David Z. Cauble, III
/s/ Jane W. Darden Director July 31, 2001
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Jane W. Darden
/s/ William B. Hudson Director July 31, 2001
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William B. Hudson
/s/ Thomas M. Lane Director July 31, 2001
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Thomas M. Lane
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Signature Title Date
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/s/ R. Terry Taunton Director July 31, 2001
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R. Terry Taunton
/s/ Curtis R. Kollar Chief Financial Officer, Vice July 31, 2001
------------------------------- President and Treasurer
Curtis R. Kollar
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Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Montgomery, State of
Alabama, on July 30, 2001.
CharterBank 401(k) Plan
By: /s/ Ruth M. Roper
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Name: Ruth M. Roper
Title: Trust Officer
Pension & Benefit Trust Company
EXHIBIT INDEX
Exhibit
Number Description
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4.1 The CharterBank 401(k) Plan and Adoption Agreement.
4.2 Investment Election Form of CharterBank.
4.3 Articles of Organization of Charter Financial Corp., incorporated by
reference to Exhibit 3.1, the Registrant's Registration Statement on
Form S-1, dated March 27, 2001, as amended, Registration No. 333-
57684, and any amendments thereto.
4.4 By-Laws of Charter Financial Corp., incorporated by reference to the
Registrant's Registration Statement on Form S-1, dated March 27, 2001,
as amended, Registration No. 333-57684, and any amendments thereto.
5 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the
legality of the securities being registered, incorporated by reference
to Exhibit 5.1 to the Registrant's Registration Statement on Form S-1,
dated March 27, 2001, as amended, Registration No. 333-57684, and any
amendments thereto.
23.1 Consent of Thacher Proffitt & Wood, incorporated by reference to
Exhibit 23.1 to the Registrant's Registration Statement on Form S-1,
dated March 27, 2001, as amended, Registration No. 333-57684, and any
amendments thereto.
23.2 Consent of KPMG LLP.