S-8

As filed with the Securities and Exchange Commission on June 21, 2022

Registration Statement No. 333-______

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

FS BANCORP, INC.

(Exact name of registrant as specified in its charter)

Washington	45-4585178
(State or other jurisdiction of	(I.R.S. Employer
incorporation or organization)	Identification No.)
6920 220th Street SW,
Mountlake Terrace, Washington	98043
(Address of principal executive offices)	(Zip code)

FS Bancorp, Inc. Nonqualified 2022 Stock Purchase Plan

(Full title of the plan)

Matthew D. Mullet	John F. Breyer, Jr.
Chief Financial Officer	Breyer & Associates PC
FS Bancorp, Inc.	8180 Greensboro Drive
6920 220th Street SW	Suite 785
Mountlake Terrace, Washington 98043	McLean, Virginia 22102
(425) 771-5299	(703) 883-1100

(Name, address and telephone number of agent for service)

Indicate by check mark whether the registrant is a large accelerated filed, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ☐	Accelerated filer ☒
Non-accelerated filer  ☐	Smaller reporting company ☒
	Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.☐

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the FS Bancorp Nonqualified 2022 Stock Purchase Plan, as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933.  This document is not being filed with the Commission, but constitutes (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 of 1933.  The registrant shall maintain a file of such documents in accordance with the provisions of Rule 428(a)(2) of the Securities Act of 1933. Upon request, the registrant shall furnish to the Commission or its staff a copy or copies of all of the documents included in such file.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.   Incorporation of Documents by Reference

Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, the following documents previously or concurrently filed by FS Bancorp, Inc. (the “Registrant”) with the Commission are hereby incorporated by reference in this Registration Statement and the prospectus to which this Registration Statement relates (the “Prospectus”):

(a) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (File No. 001-35589) filed with the Commission on March 16, 2022;

(b) all other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in Item 3(a) above; and

(c) the description of the Registrant’s common stock, par value $.01 per share, set forth in its Registration Statement on Form 8-A, registering its common stock pursuant to Section 12(b) of the Securities Exchange Act of 1934, filed as of June 28, 2012 and all amendments thereto or reports filed for the purpose of updating such description.

All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”) (excluding any portions of such documents that have been “furnished” and not “filed” for purposes of the Exchange Act) after the filing of this Registration Statement, 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 the Prospectus and to be a part hereof and 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 is qualified in its entirety by the detailed information, including financial statements, appearing in the documents incorporated herein by reference.

Item 4.   Description of Securities

Not Applicable

Item 5.   Interests of Named Experts and Counsel

Not Applicable

Item 6.   Indemnification of Directors and Officers

Article XIV of the Registrant’s Articles of Incorporation requires indemnification of directors and officers to the fullest extent permitted by the Washington Business Corporation Act (“WBCA”).  However, the indemnity does not apply to (1) acts or omissions in connection with a proceeding by or in the right of the Registrant in which the director or officer is finally adjudged liable to the Registrant, (2) conduct finally adjudged to violate the WBCA prohibition against unlawful distributions by the corporation or (3) any transaction with respect to which it was finally adjudged that the director or officer personally received a benefit to which he/she was not legally entitled.

The WBCA provides for indemnification of directors, officers, employees and agents in certain circumstances.  WBCA Section 23B.08.510 provides that a corporation may indemnify an individual made a party to a proceeding

because the individual is or was a director against liability incurred in the proceeding if  (a) the director acted in good faith, (b) the director reasonably believed that the director’s conduct was in the best interests of the corporation, or in certain instances, at least not opposed to its best interests and (c) in the case of any criminal proceeding, the director had no reasonable cause to believe the director’s conduct was unlawful.  However, a corporation may not indemnify a director under this section (a) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or (b) in connection with any other proceeding charging improper personal benefit to the director in which the director was adjudged liable on the basis that personal benefit was improperly received by the director.  WBCA Section 23B.08.520 provides that unless limited by the articles of incorporation, a corporation must indemnify a director who was wholly successful in the defense of any proceeding to which the director was a party because of being a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding.  WBCA Section 23B.08.540 provides a mechanism for court-ordered indemnification.

WBCA Section 23B.08.570 provides that unless a corporation’s articles of incorporation provide otherwise, (1) an officer of the corporation who is not a director is entitled to mandatory indemnification under WBCA Section 23B.08.520, and is entitled to apply for court-ordered indemnification under WBCA Section 23B.08.540, (2) the corporation may indemnify and advance expenses under WBCA Section 23B.08.510 through 23B.08.560 to an officer, employee or agent of the corporation who is not a director to the same extent as to a director and (3) a corporation may also indemnify and advance expenses to an officer, employee or agent who is not a director to the extent, consistent with law, that may be provided by its articles of incorporation, bylaws, general or specific action of its board of directors or contract.  WBCA Section 23B.08.580 provides that a corporation may purchase insurance on behalf of an individual who is or was a director, officer, employee or agent of the corporation against liability asserted against or incurred by the individual in that capacity, whether or not the corporation would have power to indemnify the individual against the same liability under WBCA Section 23B.08.510 or 23B.08.520.

The Registrant maintains liability insurance for the benefit of its officers and directors.

The above discussion of the Registrant’s Articles of Incorporation and the WBCA is not intended to be exhaustive and is qualified in its entirety by such Articles of Incorporation and statutes.

Item 7.   Exemption From Registration Claimed

Not Applicable

Item 8.   Exhibits

The following exhibits are filed with or incorporated by reference into this Registration Statement on Form S-8:

Exhibit Number	Description of Document
4.1	Articles of Incorporation of the Registrant(1)
4.2	Bylaws of the Registrant(2)
5	Opinion of Breyer & Associates PC
10.1	FS Bancorp, Inc. Nonqualified 2022 Stock Purchase Plan(3)
10.2	Form of Enrollment/Change Form under the FS Bancorp, Inc. Nonqualified 2022 Stock Purchase Plan
23.1	Consent of Moss Adams LLP
23.2	Consent of Breyer & Associates PC (contained in its opinion filed as Exhibit 5)
24	Power of attorney (contained in the signature page of the Registration Statement)
107	Filing Fee Table

______________________

⁽¹⁾ Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (333-177125) filed on October 3, 2011.

⁽²⁾ Incorporated by reference to the Registrant’s Current Report on Form 8-K filed on July 10, 2013 (File No. 001-35589).

⁽³⁾ Incorporated by reference to the Registrant’s Definitive Proxy Statement for the Annual Meeting of Shareholders held on May 26, 2022.

Item 9.  Undertakings

(a) 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 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 in such information in the Registration Statement; provided, however, that clauses (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those clauses is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.

2.That, for the purposes 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 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)The undersigned Registrant hereby undertakes that, for the 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 Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to 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.

(c)Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officer 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 of 1933 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 of 1933 and will be governed by the final adjudication of such issue.

SIGNATURES

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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mountlake Terrace, State of Washington, on June 21, 2022.

FS BANCORP, INC. 

By: /s/Joseph C. Adams                                                  

       Joseph C. Adams

      Chief Executive Officer

      (Duly Authorized Representative)

POWER OF ATTORNEY

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.  Each person whose signature appears below hereby makes, constitutes and appoints Joseph C. Adams or Matthew D. Mullet as his or her true and lawful attorney, with full power to sign for such person and in such person’s name and capacity indicated below, and with full power of substitution any and all amendments to this Registration Statement, hereby ratifying and confirming such person’s signature as it may be signed by said attorney to any and all amendments.

/s/Joseph C. Adams	/s/Matthew D. Mullet
Joseph C. Adams	Matthew D. Mullet
Chief Executive Officer and Director	Chief Financial Officer, Treasurer and Secretary
(Principal Executive Officer)	(Principal Financial Officer)
Date: June 21, 2022	Date: June 21, 2022
/s/Ted A. Leech	/s/Pamela M. Andrews
Ted A. Leech	Pamela M. Andrews
Chairman of the Board of Directors	Director
Date: June 21, 2022	Date: June 21, 2022
/s/Marina Cofer-Wildsmith	/s/Michael J. Mansfield
Marina Cofer-Wildsmith	Michael J. Mansfield
Director	Director
Date: June 21, 2022	Date: June 21, 2022
/s/Margaret R. Piesik	/s/Joseph P. Zavaglia
Margaret R. Piesik	Joseph P. Zavaglia
Director	Director
Date: June 21, 2022	Date: June 21, 2022

FS BANCORP, INC.

EXHIBIT INDEX

Exhibit Number	Description of Document
5	Opinion of Breyer & Associates PC
10.2	Form of Enrollment/Change Form under the FS Bancorp, Inc. Nonqualified 2022 Stock Purchase Plan
23.1	Consent of Moss Adams LLP
23.2	Consent of Breyer & Associates PC (contained in its opinion filed as Exhibit 5)
24	Power of attorney (contained in the signature page of the Registration Statement)
107	Filing Fee Table

EX-5

Exhibit 5

[Letterhead of Breyer & Associates PC]

June 21, 2022

Board of Directors

FS Bancorp, Inc.

6920 220th Street SW

Mountlake Terrace, Washington 98043

Ladies and Gentlemen:

We have acted as special counsel to FS Bancorp, Inc., a Washington corporation (the “Corporation”), in connection with the preparation and filing with the Securities and Exchange Commission of the Registration Statement on Form S-8 under the Securities Act of 1933, as amended (“Registration Statement”), relating to the 1,000,000 shares of the Corporation’s common stock, par value $.01 per share (the “Common Stock”), to be offered pursuant to the FS Bancorp, Inc. Nonqualified 2022 Stock Purchase Plan (the “Plan”).

In this connection, we have reviewed originals or copies, certified or otherwise identified to our satisfaction, of the Plan, the Registration Statement, the Articles of Incorporation and Bylaws of the Corporation, resolutions of the Board of Directors and such other documents and corporate records as we have deemed appropriate for the purpose of rendering this opinion.  We have assumed without investigation the genuineness of all signatures, the legal capacity of natural persons, the authenticity, accuracy and completeness of all documents submitted to us as originals, the conformity to authentic and complete original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity, accuracy and completeness of the originals of such copies. We have further assumed the accuracy of certifications of public officials, government agencies and departments, corporate officers and individuals, and statements of fact, on which we are relying, and have made no independent investigations thereof.

Based upon the foregoing, it our opinion that:

1.The shares of Common Stock being so registered have been duly authorized.

2.Such shares will be, when and if issued, sold and paid for as contemplated by the Plan, validly issued, fully paid and non-assessable.

In rendering the opinion set forth herein, we express no opinion as to the laws of any jurisdiction other than the Washington Business Corporation Act, as currently in effect.  This opinion is limited to the facts bearing on this opinion as they exist on the date of this letter.  We disclaim any obligation to review or supplement this opinion or to advise you of any changes in the circumstances, laws or events that may occur after this date or otherwise update this opinion.

We hereby consent to the inclusion of this opinion as Exhibit 5 to the Registration Statement.  In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.

 Sincerely,

/s/BREYER & ASSOCIATES PC

 BREYER & ASSOCIATES PC

EX-10.2

Exhibit 10.2

FS Bancorp, Inc. (the “Company”) Nonqualified 2022 Stock Purchase Plan (“NSPP”)   Capitalized terms used but not otherwise defined herein shall have the meaning given to them in the NSPP.     Enrollment / Change Form

Section 1:            ACTIONS

Check Desired ActionComplete Sections

☐   Enroll in the NSPP2 + 3 + 4 + 16

☐   Elect / Change Contribution Percentage2 + 4 + 16

☐   Withdraw from NSPP2 + 5 + 16

Section 2:              PERSONAL DATA

Name:__________________________________________

Home Address:                          __________________________________________

           __________________________________________

SSN or Employee ID:            __________________________________________

Section 3:              ENROLL

☐I hereby elect to participate in the FS Bancorp, Inc. Nonqualified 2022 Stock Purchase Plan (the “NSPP”), effective at the beginning of the next Offering Period. I elect to purchase shares of Common Stock of the Company pursuant to the terms and conditions of the NSPP and this Enrollment/Change Form. I understand that the shares purchased on my behalf will be issued in street name and deposited directly into my brokerage account. I hereby agree to take all steps, and sign all forms, required to establish an account with the Company’s broker for this purpose. My participation will continue as long as I remain eligible, unless I withdraw from the NSPP by filing a new Enrollment/Change Form with the Company or any third party designated by the Company.

Section 4:              CONTRIBUTION ELECTION PERCENTAGE OR DOLLAR AMOUNT

I hereby authorize the Company to withhold from my Compensation such amount as is necessary to equal at the end of the applicable Offering Period (not to exceed $28,000 worth of Company Stock in any calendar year):

☐____ % of my Compensation paid during such Purchase Period, as long as I continue to participate in the NSPP. (The percentage must be a whole number.)

☐$ ________    (withheld or paid over the Offering Period), as long as I continue to participate in the NSPP.

“Compensation” has the meaning provided for in the NSPP, and generally means: (1) for Employees, base compensation, commissions and bonuses, (2) for Directors, directors fees, and (3) for independent contractors, amounts actually paid in cash by the Company or a Designated Subsidiary for the performance of Services.

My contributions will be applied to the purchase of shares of Common Stock pursuant to the NSPP. 

Note: You may not change your contributions during an ongoing Offering Period. A change in your contribution percentage or dollar amount can only take effect with the next Offering Period.

Section 5:WITHDRAWAL FROM NSPP / DISCONTINUE CONTRIBUTIONS

☐I hereby elect to withdraw from the NSPP and stop my contributions under the NSPP, effective as soon as reasonably practicable after this form is received by the Company. Accumulated contributions will be returned to me without interest, pursuant to Section 10 of the NSPP.

Note: No future contributions will be made if you elect to withdraw from the NSPP.  By making this election, you acknowledge and understand that you may not resume participation in the NSPP until the start of the next Offering Period and must timely file a new enrollment form to do so.

Section 6:NO ADVICE REGARDING PARTICIPATION

The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding my participation in the NSPP or my acquisition or sale of Common Stock. I acknowledge, understand and agree that I should consult with my own personal tax, legal and financial advisors regarding my participation in the NSPP before taking any action related to the NSPP.

Section 7:NATURE OF GRANT

By enrolling and participating in the NSPP, I acknowledge, understand and agree that:

a. The NSPP is established voluntarily by the Company and it is discretionary in nature;

b. The NSPP is not a tax-qualified employee stock purchase plan within the meaning of Code Section 423, and as such the tax and other benefits accorded to tax-qualified employee stock purchase plans are not available under this Plan;

c. All decisions with respect to future offers to participate in the NSPP, if any, will be at the sole discretion of the Committee;

d. I am voluntarily participating in the NSPP;

e. The purchase price of the Common Stock is 100% of the fair market value of the Common Stock on the Exercise Date, as defined in the NSPP (i.e., there is no discounted purchase price);

f. By participating in the Plan, I am entitled to a matching contribution of Common Stock, subject in all respects to the terms and limits of the NSPP;

g. The purchase rights and Common Stock subject to the purchase rights, and the income from and value of same, are not intended to replace any pension rights or compensation; and

h.  The purchase rights and the Common Stock subject to the purchase rights, and the income from and value of same, are not part of normal or expected compensation for any purpose, including, but not limited to calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments.

Section 8:                RESPONSIBILITY FOR TAXES

I acknowledge that, regardless of any action taken by the Company or a Designated Subsidiary, the ultimate liability for all income tax or other tax related items related to my participation in the NSPP and legally applicable to me (“Tax-Related Items”) is and remains my responsibility and may exceed the amount withheld (if any) by the Company or a Designated Subsidiary. I further acknowledge that the Company and all Designated Subsidiaries: (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the purchase rights granted pursuant to the NSPP, including, but not limited to, the purchase of Common Stock, the subsequent sale of Common Stock acquired pursuant to such purchase and the receipt of any dividends (if any); and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of my participation to reduce or eliminate my liability for Tax-Related Items or achieve any particular tax result.

Prior to any relevant taxable or tax withholding event, as applicable, I agree to make arrangements satisfactory to the Company or a Designated Subsidiary to fulfill all Tax-Related Items. In this regard, I authorize the Company or a Designated Subsidiary, or their agents, at their discretion, to satisfy any withholding obligations for Tax-Related Items by one or a combination of the following:

a.   withholding from my wages or other cash compensation paid to me by the Company or a Designated Subsidiary;

b.  withholding from proceeds of the sale of Common Stock acquired upon purchase either through a voluntary sale or through a mandatory sale arranged by the Company or a Designated Subsidiary (on my behalf pursuant to this authorization and without further consent);

c.   my payment of a cash amount (including by check representing readily available funds or a wire transfer) to the Company or a Designated Subsidiary; or

d.  any other arrangement approved by the Committee and permitted under applicable law.

Depending on the withholding method, the Company or a Designated Subsidiary may withhold or account for Tax-Related Items by considering applicable statutory withholding rates or other applicable withholding rates, including up to the maximum permissible statutory rate for my tax

jurisdiction(s) in which case I will have no entitlement to the equivalent amount in Common Stock and may receive a refund of any over-withheld amount in cash in accordance with applicable law.

Finally, I agree to pay to the Company or a Designated Subsidiary any amount of Tax-Related Items that the Company or a Designated Subsidiary may be required to withhold or account for as a result of my participation in the NSPP that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the Common Stock or the proceeds of the sale of Common Stock, if I fail to comply with my obligations in connection with the Tax-Related Items.

Section 9:ELECTRONIC DELIVERY AND ACCEPTANCE

The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the NSPP by electronic means. I hereby consent to receive such documents by electronic delivery and agree to participate in the NSPP through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.

Section 10:COMPLIANCE WITH LAW

Unless there is an available exemption from any registration, qualification or other legal requirement applicable to the shares of Common Stock the Company shall not be required to deliver any shares under the NSPP prior to the completion of any registration or qualification of the shares under any applicable law, or prior to obtaining any approval or other clearance from any local, state, federal or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. I agree that the Company shall have unilateral authority to amend the NSPP and this Agreement without my consent to the extent necessary to comply with securities or other laws applicable to the issuance of shares.

Section 11:TERMINATION, MODIFICATION, AND IMPOSITION OF OTHER REQUIREMENTS

The Company, at its option, may elect to terminate, suspend or modify the terms of the NSPP at any time, to the extent permitted by the NSPP. I agree to be bound by such termination, suspension or modification regardless of whether notice is given to me of such event, subject in any case to my right to timely withdraw from the NSPP in accordance with the NSPP withdrawal procedures then in effect. The Company reserves the right to impose other requirements on my participation in the NSPP, to the extent the Company determines it is necessary or advisable for legal or administrative reasons and to require me to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.

Section 12:SEVERABILITY

If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision will be enforced to the maximum extent possible given the intent of the parties hereto. If such clause or provision cannot be so enforced, then (i) such provision will be excluded from the Agreement, (ii) the balance of the Agreement will be interpreted as if such provision were so excluded and (iii) the balance of the Agreement will be enforceable in accordance with its terms.

Section 13:WAIVER

I acknowledge that a waiver by the Company of breach of any provision of the Agreement shall not operate or be construed as a waiver of any other provision of the Agreement, or any subsequent breach by any Participant.

Section 14:GOVERNING LAW AND VENUE

The Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto will be governed, construed and interpreted in accordance with the substantive laws of the State of Washington, without giving effect to such state’s conflict of laws rules.

Section 15:INSIDER TRADING RESTRICTION AND MARKET ABUSE RULES

I acknowledge that I may be subject to insider trading restrictions and/or market abuse laws in applicable jurisdictions, which may affect my ability to directly or indirectly, accept, acquire, sell or attempt to sell or otherwise dispose of Common Stock, or rights to Common Stock (e.g., purchase rights), or rights linked to the value of Common Stock, during such times as I am considered to have “inside information” regarding the Company (as defined by the laws or regulations in the applicable jurisdiction). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders I placed before possessing the inside information. Furthermore, I may be prohibited from (i) disclosing the inside information to any third party, including fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them to otherwise buy or sell securities. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. I acknowledge that it is my responsibility to comply with any applicable restrictions and understand that I should consult my personal legal advisor on such matters. In addition, I acknowledge having read the Company’s insider trading policy, and agree to comply with such policy, as it may be amended from time to time, whenever I acquire or dispose of the Company’s securities.

Section 16:ACKNOWLEDGEMENT AND SIGNATURE

I acknowledge that I have received a copy of the NSPP. I have read the NSPP and my signature below indicates that I hereby agree to be bound by the terms of the NSPP.

Signature:                                                                                                                           

Date:                               

EX-23.1

Exhibit 23.1

[LETTERHEAD OF MOSS ADAMS LLP]

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement on Form S-8 of FS Bancorp, Inc., of our report dated March 16, 2022, relating to the consolidated financial statements of FS Bancorp, Inc. and subsidiary (the “Company”) and the effectiveness of internal control over financial reporting of the Company, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2021, filed with the Securities and Exchange Commission. 


/s/ Moss Adams LLP


Everett, Washington
June 20, 2022

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

                                 FS Bancorp, Inc.                               

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered	Proposed Maximum Offering Price Per Share	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, par value $0.01 per share	Rule 457(c) and Rule 457(h)	1,000,000(1)	$29.25(2)	$29,250,000	.0000927	$2,712
	Total Offering Amounts				$29,250,000		$2,712
	Total Fee Offsets						$       0
	Net Fee Due						$2,712

⁽¹⁾ Pursuant to Rule 416 under the Securities Act of 1933, this Registration Statement includes an indeterminate number of additional shares which may be necessary to adjust the number of shares reserved for issuance pursuant to the FS Bancorp, Inc. Nonqualified 2022 Stock Purchase Plan as a result of a stock split, stock dividend or similar adjustment of the outstanding common stock of the registrant.

⁽²⁾ Estimated in accordance with Rule 457(c) and Rule 457(h) of the Securities Act of 1933, calculated on the basis of $29.25 per share, the average of the high and low sale prices per share of the registrant’s common stock on the Nasdaq Global Market on June 13, 2022, which date is within five business days prior to filing this Registration Statement.