-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KKQIrjOViggrzjKn18WrjlDc/WJvpEKAX1+OFZIbbNBqcOlMOTyYsUv2HQ938TOM E55YgPtHwfXWYwluwRbQPg== 0000943374-09-001563.txt : 20091204 0000943374-09-001563.hdr.sgml : 20091204 20091204145649 ACCESSION NUMBER: 0000943374-09-001563 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20091204 DATE AS OF CHANGE: 20091204 EFFECTIVENESS DATE: 20091204 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CITIZENS SOUTH BANKING CORP CENTRAL INDEX KEY: 0001051871 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035] IRS NUMBER: 542069979 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-163491 FILM NUMBER: 091223417 BUSINESS ADDRESS: STREET 1: 245 WEST MAIN AVENUE CITY: GASTONIA STATE: NC ZIP: 28052-4140 BUSINESS PHONE: 7048685200 MAIL ADDRESS: STREET 1: P.O. BOX 2249 CITY: GASTONIA STATE: NC ZIP: 28053-2249 FORMER COMPANY: FORMER CONFORMED NAME: GASTON FEDERAL BANCORP INC DATE OF NAME CHANGE: 19971222 S-8 1 form_s8-120309.txt Registration No. 333-_________ As filed with the Securities and Exchange Commission on December 4, 2009 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Citizens South Banking Corporation (Exact Name of Registrant as Specified in its Charter) Delaware 54-2069979 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 519 South New Hope Road Gastonia, North Carolina 28054-4040 (Address of Principal Executive Offices) (Zip Code) Citizens South Banking Corporation 2008 Equity Incentive Plan (Full Title of the Plan) Copies to: Kim S. Price, President Ned Quint, Esquire and Chief Executive Officer Luse Gorman Pomerenk & Schick, P.C. Citizens South Banking Corporation 5335 Wisconsin Ave., N.W., Suite 780 519 South New Hope Road Washington, DC 20015 Gastonia, North Carolina 28054-4040 (202) 274-2000 (704) 868-5200 (Name, Address and Telephone Number of Agent for Service) Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one): Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [ ] Smaller reporting company [X] CALCULATION OF REGISTRATION FEE
==================================================================================================================== Title of Proposed Proposed Securities Amount Maximum Maximum Amount of to be to be Offering Price Aggregate Registration Registered Registered(1) Per Share Offering Price Fee - -------------------------------------------------------------------------------------------------------------------- Common stock, par value $0.01 per share 100,000 (2) $5.68 (3) $568,000 $32 - -------------------------------------------------------------------------------------------------------------------- Common stock, par value $0.01 per share 177,000 (4) $8.00 (5) $1,416,000 $79 - -------------------------------------------------------------------------------------------------------------------- Common stock, par value $0.01 per share 23,000 (6) $5.68 (3) $130,640 $7 - -------------------------------------------------------------------------------------------------------------------- TOTALS 300,000 $2,114,640 $118 ==================================================================================================================== - ----------------------- (1) Together with an indeterminate number of additional shares that may be necessary to adjust the number of shares reserved for issuance pursuant to the Citizens South Banking Corporation 2008 Equity Incentive Plan (the "Stock Benefit Plan") as a result of a stock split, stock dividend or similar adjustment of the outstanding common stock of Citizens South Banking Corporation (the "Company") pursuant to 17 C.F.R. Section 230.416(a). (2) Represents the number of shares of common stock awarded as restricted stock under the Stock Benefit Plan. (3) Determined pursuant to 17 C.F.R. Section 230.457(h)(1). (4) Represents the number of shares of common stock currently reserved for issuance for options granted pursuant to the Stock Benefit Plan. (5) Determined pursuant to 17 C.F.R. Section 230.457(c). (6) Represents the number of shares of common stock reserved for issuance under the Stock Benefit Plan for any future grants of stock options.
-------------------- This Registration Statement shall become effective upon filing in accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss. 230.462. 2 PART I. Items 1 and 2. Plan Information and Registrant Information and Employee Plan Annual Information The documents containing the information specified in Part I and II of Form S-8 have been or will be sent or given to participants in the Stock Benefit Plan as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"). Such documents are not being filed with the Commission, but constitute (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II. Item 3. Incorporation of Documents by Reference The following documents previously or concurrently filed with the Commission are hereby incorporated by reference in this Registration Statement: a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2008 (File No. 000-23971), filed with the Commission on March 18, 2009 pursuant to Section 13(a) of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"); b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end of the year covered by the Annual Report on Form 10-K referred to in (a) above; and c) The description of the Company's common stock contained in the Form 8-A filed with the Commission on September 27, 2002 (File No. 000-23971). All documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date hereof, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference into this Registration Statement and to be a part thereof from the date of the filing of such documents. Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein 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 and the prospectus. All information appearing in this Registration Statement and the prospectus is qualified in its entirety by the detailed information, including financial statements, appearing in the documents incorporated herein or therein by reference. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel None. 3 Item 6. Indemnification of Directors and Officers Article TENTH of the Certificate of Incorporation of the Company set forth circumstances under which directors, officers, employees and agents of the Company may be insured or indemnified against liability which they incur in their capacities as such: TENTH: A. 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 or she is or was a Director or an Officer of the Corporation or is or was serving at the request of the Corporation as a Director, Officer, employee or agent 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, employee or agent or in any other capacity while serving as a Director, Officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), 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; provided, however, that, except as provided in Section C hereof with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. B. The right to indemnification conferred in Section A of this Article TENTH shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition (hereinafter an "advancement of expenses"); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a Director of Officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Section or otherwise. The rights to indemnification and to the advancement of expenses conferred in Sections A and B of this Article TENTH shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a Director, Officer, employee or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators. C. If a claim under Section A or B of this Article TENTH is not paid in full by the Corporation within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit 4 brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article TENTH or otherwise shall be on the Corporation. D. The rights to indemnification and to the advancement of expenses conferred in this Article TENTH shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation's Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested Directors or otherwise. E. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. F. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article TENTH with respect to the indemnification and advancement of expenses of Directors and Officers of the Corporation. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing or Exhibit Number Document Exhibit No. Attached Hereto - -------------- -------- ---------------------------- 4 Form of Common Stock Certificate * 5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5 10 Citizens South Banking Corporation 2008 Equity Incentive Plan ** 23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5 23.2 Consent of Cherry Bekaert & Holland, L.L.P. Attached as Exhibit 23.2 24 Power of Attorney Contained on Signature Page - ------------------------- * Incorporated by reference to Exhibit 4 to the Registration Statement on Form S-1 (File No. 333-91498) filed by the Company under the Securities Act of 1933, with the Commission on June 28, 2002, and all amendments or reports filed for the purpose of updating such description. ** Incorporated by reference to Appendix A to the Company's proxy statement for the Annual Meeting of Stockholders (File No. 000-23971), filed with the Commission on April 10, 2008.
5 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 this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this 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 Plan; 4. 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 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; and 5. 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 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 Act and will be governed by the final adjudication of such issue. 6 SIGNATURES The Registrant. 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Gastonia, State of North Carolina, on this 3rd day of December, 2009. CITIZENS SOUTH BANKING CORPORATION By: \s\ Kim S. Price ----------------------------------------- Kim S. Price President and Chief Executive Officer (Duly Authorized Representative) POWER OF ATTORNEY We, the undersigned directors and officers of Citizens South Banking Corporation (the "Company") hereby severally constitute and appoint Kim S. Price, as our true and lawful attorney and agent, to do any and all things in our names in the capacities indicated below which said Kim S. Price may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with the registration of shares of common stock to be granted and shares of common stock to be issued upon the exercise of stock options to be granted under the Citizens South Banking Corporation 2008 Equity Incentive Plan, including specifically, but not limited to, power and authority to sign for 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 approve, ratify and confirm all that said Kim S. Price shall do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the date indicated.
Signatures Title Date - ---------- ----- ---- \s\ Kim S. Price President and December 3, 2009 - ----------------------------- Chief Executive Officer Kim S. Price (Principal Executive Officer) \s\ Gary F. Hoskins Executive Vice President, Treasurer December 3, 2009 - ----------------------------- and Chief Financial Officer Gary F. Hoskins (Principal Financial and Accounting Officer) \s\ David W. Hoyle Chairman December 3, 2009 - ----------------------------- David W. Hoyle \s\ Ben R. Rudisill, II Vice Chairman December 3, 2009 - ----------------------------- Ben R. Rudisill, II \s\ James J. Fuller Director December 3, 2009 - ----------------------------- James J. Fuller \s\ Charles D. Massey Director December 3, 2009 - ----------------------------- Charles D. Massey \s\ Eugene R. Matthews, II Director December 3, 2009 - ----------------------------- Eugene R. Matthews, II
EXHIBIT INDEX
Regulation S-K Reference to Prior Filing or Exhibit Number Document Exhibit No. Attached Hereto - -------------- -------- ---------------------------- 4 Form of Common Stock Certificate * 5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5 10 Citizens South Banking Corporation 2008 Equity Incentive Plan ** 23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5 23.2 Consent of Cherry Bekaert & Holland, L.L.P. Attached as Exhibit 23.2 24 Power of Attorney Contained on Signature Page - ------------------------- * Incorporated by reference to Exhibit 4 to the Registration Statement on Form S-1 (File No. 333-91498) filed by the Company under the Securities Act of 1933, with the Commission on June 28, 2002, and all amendments or reports filed for the purpose of updating such description. ** Incorporated by reference to Appendix A to the Company's proxy statement for the Annual Meeting of Stockholders (File No. 000-23971), filed with the Commission on April 10, 2008.
EX-23 2 forms8_ex23-120309.txt Exhibit 23.2 CONSENT OF CHERRY, BEKAERT & HOLLAND, L.L.P Consent of Independent Certified Public Accountants The Board of Directors Citizens South Banking Corporation Gastonia, North Carolina We consent to the inclusion in this registration statement of Citizens South Banking Corporation and subsidiaries on Form S-8 of our report, dated March 16, 2009, related to the audits of the consolidated statements of condition as of December 31, 2008 and 2007, and the related consolidated statements of income, comprehensive income, changes in stockholders' equity and cash flows for each of the years in the period ended December 31, 2008, which are included in the December 31, 2008 Annual report on Form 10-K of Citizens South Banking Corporation and subsidiaries. /s/ Cherry, Bekaert & Holland, L.L.P. Gastonia, NC November 30, 2009 EX-5 3 forms8_ex5-120309.txt Exhibit 5 OPINION OF LUSE GORMAN POMERENK & SCHICK, PC LUSE GORMAN POMERENK & SCHICK A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 5335 WISCONSIN AVENUE, N.W., SUITE 780 WASHINGTON, D.C. 20015 --------------- TELEPHONE (202) 274-2000 FACSIMILE (202) 362-2902 www.luselaw.com WRITER'S DIRECT DIAL NUMBER WRITER'S EMAIL (202) 274-2000 December 3, 2009 Board of Directors Citizens South Banking Corporation 519 South New Hope Road Gastonia, North Carolina 28054-4040 Re: Citizens South Banking Corporation 2008 Equity Incentive Plan Registration Statement on Form S-8 Gentlemen: You have requested the opinion of this firm as to certain matters in connection with the issuance of Citizens South Banking Corporation (the "Company") common stock, par value $.01 per share (the "Common Stock"), pursuant to the Citizens South Banking Corporation 2008 Equity Incentive Plan (the "Stock Benefit Plan"). We have reviewed the Company's Certificate of Incorporation, Registration Statement on Form S-8 (the "Form S-8"), as well as applicable statutes and regulations governing the Company and the offer and sale of the Common Stock. Based on the foregoing, we are of the following opinion: Upon the effectiveness of the Form S-8, the Common Stock, when issued in connection with the exercise of options granted pursuant to the Stock Benefit Plan and shares of Common Stock granted under the Stock Benefit Plan, will be legally issued, fully paid and non-assessable. This opinion has been prepared solely for the use of the Company in connection with the preparation and filing of the Form S-8, and should not be used for any other purpose or relied upon by any other person without the prior written consent of this firm. We hereby consent to the use of this opinion in the Form S-8. Very truly yours, \s\ Luse Gorman Pomerenk & Schick, PC LUSE GORMAN POMERENK & SCHICK A Professional Corporation -----END PRIVACY-ENHANCED MESSAGE-----