-----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, SF7btD5yojxMNYuoopmjXbt2G9C7gINBY6CmZZuTkngiqblm27tJeyEM5c9jBJOh dSyZ+ilOcn7Wr14SAUav0w== 0001045969-01-500834.txt : 20010813 0001045969-01-500834.hdr.sgml : 20010813 ACCESSION NUMBER: 0001045969-01-500834 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010810 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHARTER FINANCIAL CORP/GA CENTRAL INDEX KEY: 0001136796 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035] FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-57684 FILM NUMBER: 1704416 BUSINESS ADDRESS: STREET 1: 600 THIRD AVENUE CITY: WEST POINT STATE: GA ZIP: 31833 BUSINESS PHONE: 7066451391 MAIL ADDRESS: STREET 1: 600 THIRD AVENUE CITY: WEST POINT STATE: GA ZIP: 31833 S-1/A 1 ds1a.txt AMENDMENT NO. 4 TO FORM S-1 As filed with the Securities and Exchange Commission on August 10, 2001 Registration No. 333-57684 ================================================================================ 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 / ---
CALCULATION OF REGISTRATION FEE =================================================================================================================================== 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) - ----------------------------------------------------------------------------------------------------------------------------------- Common Stock, 6,083,500 $10.00 $60,835,000 $15,209 $.01 par value ===================================================================================================================================
(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 ---------- TOTAL.............................................................. $1,550,000 ==========
_____________ (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*** - ----------- *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. EX-8.1 3 dex81.txt EXHIBIT 8.1 Exhibit 8.1 [Thacher Proffitt and Wood Opinion Letterhead] August 10, 2001 CharterBank 600 Third Avenue West Point, GA 31833 Dear Ladies and Gentlemen: You have requested our opinion regarding certain federal income tax consequences of the proposed transactions (collectively, the "Reorganization"), more fully described below, pursuant to which CharterBank (the "Bank") will reorganize from a mutual savings association into a mutual holding company structure. The Reorganization will be effected pursuant to the Amended Plan of Reorganization From Mutual Savings Association to Mutual Holding Company and Stock Issuance, adopted by the Board of Directors of the Bank on March 8, 2001 (the "Plan"). The Reorganization and its component and related transactions are described in the Plan. We are rendering this opinion pursuant to Section 5(E) of the Plan. All capitalized terms used but not defined in this letter shall have the meanings assigned to them in the Plan. The Reorganization will be effected, pursuant to the Plan, as follows: (1) The Bank will establish a federal corporation ("Holding Company") as a wholly-owned subsidiary of the Bank; (2) Holding Company will establish a federally chartered stock savings bank ("New Stock Bank") as its wholly-owned subsidiary. (3) The Bank will exchange its charter for a federal mutual holding company charter to become First Charter, MHC ("MHC"); (4) Immediately following step (3), the MHC will transfer all of its assets and liabilities, other than 400,000 shares of Federal Home Loan Mortgage Corporation ("Freddie Mac") stock and approximately $100,000 in cash, to Holding Company in exchange solely for common stock of Holding Company and the assumption by the Holding Company of the liabilities of MHC; and CharterBank August 10, 2001 Page 2. (5) Immediately following steps (3) and (4), Holding Company will transfer all of its assets and liabilities, including all the assets and liabilities transferred to Holding Company pursuant to step (3) but excluding 2,500,000 shares of Freddie Mac stock, to New Stock Bank in exchange solely for common stock of New Stock Bank and the assumption by New Stock Bank of the liabilities of the Holding Company. Immediately following steps (3) through (5), or as soon as practicable thereafter, Holding Company will sell up to 20% of its authorized common stock in one or more Minority Stock Offerings. As a result of the Reorganization, and after the Minority Stock Offerings, MHC will own at least 80% of the issued and outstanding shares of Holding Company common stock, and New Stock Bank will be the wholly-owned subsidiary of Holding Company and will conduct the banking business previously conducted by the Bank. Pursuant to the Reorganization, each deposit in the Bank as of the Effective Date will become a deposit in New Stock Bank in the same amount and upon the same terms and conditions, and members of the Bank will become members of MHC. As a mutual entity, MHC will not have any authorized capital stock, and the members of MHC will have exclusive voting authority as to all matters requiring a vote of members under the MHC Charter, and will otherwise hold membership interests in MHC that are substantially similar to those held by them in the Bank. In connection with the opinions expressed below, we have examined and relied upon originals, or copies certified or otherwise identified to our satisfaction, of the Plan and of such corporate records of the parties to the Reorganization as we have deemed appropriate. We have also relied, without independent verification, upon the factual representations of the Bank contained in its letter to us dated May 16, 2001. We have assumed the absence of changes at the Effective Time of facts existing on the date of the filing of Form MHC-1 with the Office of Thrift Supervision, that the parties will act, and that the Reorganization will be effected in accordance with the Plan, and that the representations made by the Bank in the foregoing letter are true, correct and complete, and will be true, correct and complete at the Effective Time, without regard to any qualification as to knowledge and belief. In addition, we have made such investigations of law as we have deemed appropriate to form a basis for the opinions expressed below. Based on and subject to the foregoing, it is our opinion that for federal income tax purposes, under current law: (1) The conversion of the Bank to mutual holding company form under the name First Charter, MHC will constitute a reorganization under Code section 368(a)(1)(F); (2) The transfer of assets by the Bank to Holding Company solely in exchange for common stock of Holding Company and the assumption by Holding Company of liabilities of the Bank will be an exchange described in Code section 351. (3) The transfer of assets by Holding Company to New Stock Bank solely in exchange for common stock of New Stock Bank and the assumption by New Stock Bank of liabilities of Holding Company will be an exchange described in Code section 351. (4) None of the Bank, Holding Company, New Stock Bank or the Members will recognize gain or loss as a result of the Reorganization; CharterBank August 10, 2001 Page 3. (5) Participants in the Subscription Offering will not recognize gain or loss upon their receipt of nontransferable subscription rights to purchase shares of Holding Company, provided the amount to be paid for such shares is equal to fair market value of such shares; (6) MHC's basis in the stock of Holding Company that is received in the Reorganization will be the same as the basis of the property transferred in exchange therefor, reduced by the amount of liabilities assumed by Holding Company; and (7) Holding Company's basis in the stock of New Stock Bank that is received in the Reorganization will be the same as the basis of the property transferred in exchange therefor, reduced by the amount of liabilities assumed by New Stock Bank. For purposes of opinions (6) and (7), a transferee of assets shall be treated (i) as having assumed a recourse liability of its transferor (or portion thereof) if the transferee has agreed to, and is expected to, satisfy such liability (or portion), whether or not the transferor has been relieved of such liability, and (ii) as having assumed a nonrecourse liability if any asset transferred to the transferee is subject to such liability, provided that the amount of any such nonrecourse liability shall be reduced by the lesser of (i) the amount thereof that the owner of other assets not transferred to the transferee and also subject to such liability has agreed with the transferee to, and is expected to, satisfy or (ii) the fair market value of such other assets. Except as set forth above, we express no opinion to any party as to the tax consequences, whether federal, state, local or foreign, of the Reorganization or of any transaction related thereto or contemplated by the Plan. We consent to the filing of this opinion as an exhibit to the Form MHC-1 filed with the Office of Thrift Supervision in connection with the Reorganization, and to the Prospectus included in the Bank's Registration Statement on Form S-1 filed with the Securities and Exchange Commission in connection with the Reorganization (the "Prospectus") and to the reference thereto under the headings "The Reorganization and The Offering - Tax Aspects" and "Legal and Tax Opinions" in the Prospectus. Very truly yours, THACHER PROFFITT & WOOD By: /s/ Albert J. Cardinali ------------------------------------ -----END PRIVACY-ENHANCED MESSAGE-----