m-tarps3.htm
As filed
with the Securities and Exchange Commission on January 5,
2009
Registration
No. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
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SOUTHERN
MISSOURI BANCORP, INC.
(Exact
name of registrant as specified in its
charter)
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Missouri
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43-1665523
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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531
Vine Street
Poplar
Bluff, Missouri 63901
(573)
778-1800
(Address,
including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Greg
A. Steffens
President
Southern
Missouri Bancorp, Inc.
531
Vine Street
Poplar
Bluff, Missouri 63901
(573)
778-1800
(Name,
address, including zip code, and telephone number, including area code, of
agent for service)
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Copy
of communications to:
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Martin
L. Meyrowitz, P.C.
Craig
M. Scheer, P.C.
Silver,
Freedman & Taff, L.L.P.
3299
K Street, N.W., Suite 100
Washington,
D.C. 20007
(202)
295-4500
(202)
337-5502 (fax)
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Approximate date of commencement of
proposed sale to the public: From time to time after this Registration
Statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
[__]
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, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.[__]
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. [__]
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. [__]
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. [__]
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):
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Large accelerated
filer o
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller reporting company þ
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(Do not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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TITLE
OF EACH CLASS OF
SECURITIES
TO BE REGISTERED
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AMOUNT
TO
BE
REGISTERED
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PROPOSED
MAXIMUM
OFFERING
PRICE
PER
UNIT
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PROPOSED
MAXIMUM
AGGREGATE
OFFERING
PRICE
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AMOUNT
OF
REGISTRATION
FEE
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Common
Stock (1)
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114,326
shares
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$10.62(2)
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$12,141,143
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$478
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Warrants
(1)
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---
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---
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---
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---
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Total
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$12,141,143
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$478
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(1)
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The
shares of common stock being registered are purchasable upon exercise of
the warrants being registered, which we issued to the United States
Department of the Treasury (“Treasury”) pursuant to Treasury’s Troubled
Asset Relief Program Capital Purchase Program. In addition to
the number of shares of common stock stated in the table above, there is
registered, pursuant to Rule 416, such number of additional shares of
common stock, of a currently undeterminable amount, as may from time to
time become issuable by reason of stock splits, stock dividends and
certain other anti-dilution provisions set forth in the
warrants. Pursuant to Rule 457(g), no additional fee is payable
for the warrants.
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(2)
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Estimated
in accordance with Rule 457(c), calculated on the basis of $10.62 per
share, which was the average of the high and low sales prices per share of
the common stock on the NASDAQ Stock Market on December 30,
2008.
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_____________________
The
Registrant hereby amends this Registration Statement 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 said Section 8(a),
may determine.
The information in this prospectus is
not complete and may be changed. The selling securityholders may not sell these
securities until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an offer to
sell these securities and is not soliciting an offer to buy these securities in
any state or jurisdiction where the offer or sale is not
permitted.
Subject to
Completion
Preliminary Prospectus dated January 5,
2009
PROSPECTUS
Southern Missouri Bancorp,
Inc.
114,326 Shares of Common Stock and a
Warrant to Purchase Such Shares
This prospectus relates to (i) a
warrant, or portions thereof, which expires on December 5, 2018, to purchase
114,326 shares of our common stock at an exercise price of $12.53 per share,
subject to adjustment as described in this prospectus, and (ii) the shares of
our common stock which may be purchased upon exercise of the
warrant. The warrant, along with 9,550 shares of our Fixed Rate
Cumulative Perpetual Preferred Stock, Series A (liquidation preference amount
$1,000 per share), was issued by us on December 5, 2008 to the United States
Department of the Treasury as part of Treasury’s Troubled Asset Relief Program
Capital Purchase Program in a private placement exempt from the registration
requirements of the Securities Act of 1933.
The selling securityholders who may sell
or otherwise dispose of the securities offered by this prospectus include
Treasury and any other holders of the securities covered by this prospectus to
whom Treasury has transferred its registration rights in accordance with the
terms of the securities purchase agreement between us and
Treasury. The selling securityholders may offer the securities from
time to time directly or through underwriters, broker-dealers or agents and in
one or more public or private transactions and at fixed prices, at prevailing
market prices, at prices related to prevailing market prices or at negotiated
prices. If these securities are sold through underwriters,
broker-dealers or agents, the selling securityholders will be responsible for
underwriting discounts or commissions or agents’ commissions, if
any. We
will not receive any proceeds from the sale of securities by the selling
securityholders.
Our common stock is listed on the
NASDAQ Global
Market under the symbol
“SMBC.” On December 30, 2008, the closing sale price of our
common stock on the NASDAQ
Global Market was
$10.98 per share. The warrant is not currently
listed on any established securities exchange or quotation system and we do not
intend to seek such a listing for the warrant unless we are requested to do so
by Treasury.
_______________
The
securities offered by this prospectus are not savings accounts, deposits or
other obligations of any bank and are not insured or guaranteed by the Federal
Deposit Insurance Corporation or any other government agency.
_______________
Investing
in the securities offered by this prospectus involves risks. See
“Risk Factors” beginning on page 2 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission nor
any other regulatory body has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to
the contrary is a criminal offense.
The date of this prospectus is _______
, 2009.
TABLE OF CONTENTS
Page
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ABOUT
THIS PROSPECTUS
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iii
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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iii
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WHERE
YOU CAN FIND MORE INFORMATION
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iv
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PROSPECTUS
SUMMARY
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1
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RISK
FACTORS
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2
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USE
OF PROCEEDS
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9
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REGULATORY
CONSIDERATIONS
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9
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DESCRIPTION
OF WARRANT
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10
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DESCRIPTION
OF CAPITAL STOCK
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11
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SELLING
SECURITYHOLDERS
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17
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PLAN
OF DISTRIBUTION
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18
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LEGAL
MATTERS
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20
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EXPERTS
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20
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ABOUT
THIS PROSPECTUS
This prospectus is part of a
registration statement that we filed with the Securities and Exchange Commission
(the “SEC”) using a “shelf” registration, or continuous offering,
process. Under this process, the selling securityholders may from
time to time sell or otherwise dispose of the securities covered by this
prospectus in one or more offerings.
You should rely only on the information
contained or incorporated by reference in this prospectus and any supplement to this
prospectus. We have not,
and the selling securityholders have not, authorized anyone to provide you
with information different from that contained in this prospectus. The
selling securityholders are offering to sell, and
seeking offers to buy, our
securities only in
jurisdictions where it is lawful to do so. The information in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or any sale of our securities. Neither the delivery of
this prospectus nor any sale made
under this
prospectus shall, under any
circumstances, create any implication that there has been no
change in our affairs since the date of this prospectus or that the information
contained or incorporated by reference in this prospectus is correct as of any
time subsequent to the date of such information.
All references in this prospectus to
“we,” “us,” “our” or similar references mean Southern Missouri Bancorp,
Inc. and its consolidated subsidiaries and all references in this prospectus
to “Southern Missouri Bancorp” mean Southern Missouri Bancorp, Inc. excluding
its subsidiaries, in each case unless otherwise expressly stated or the context
otherwise requires. When we refer to “Southern Missouri Bank & Trust
Co.” in this prospectus, we
mean our subsidiary,
Southern Missouri Bank & Trust Co., a Missouri-chartered trust
company. We sometimes refer to Southern Missouri Bank & Trust Co.
as the “Bank.”
This prospectus and the documents incorporated by
reference may contain
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Forward-looking statements often include the
words “believes,” “expects,” “anticipates,” “estimates,” “forecasts,” “intends,”
“plans,” “targets,” “potentially,” “probably,” “projects,” “outlook” or similar
expressions or future or conditional verbs such as “may,” “will,” “should,”
“would” and “could.” These forward-looking statements are subject to known and
unknown risks, uncertainties and other factors that could cause the actual
results to differ materially from the forward-looking statements,
including:
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the
strength of the United States economy in general and the strength of the
local economies in which we conduct
operations;
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fluctuations in interest rates and
in real estate values;
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monetary
and fiscal policies of the Board of Governors of the Federal Reserve
System (the “Federal Reserve”) and the U.S. Government and other
governmental initiatives affecting the financial services;
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the
risks of lending and investing activities, including changes in the level
and direction of loan delinquencies and write-offs and changes in
estimates of the adequacy of the allowance for loan
losses;
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our
ability to access cost-effective
funding;
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the
timely development of and acceptance of our new products and services and
the perceived overall value of these products and services by users,
including the features, pricing and quality compared to competitors'
products and services;
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demand
for loans and deposits in our market
area;
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legislative
or regulatory changes that adversely affect our
business;
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results
of examinations of us by our regulators, including the possibility that
our regulators may, among other things, require us to increase our reserve
for loan losses or to write-down
assets;
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the
impact of technological changes;
and
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our
success at managing the risks involved in the
foregoing
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Some of these and other factors are
discussed in this
prospectus under the caption “Risk Factors” and elsewhere in this prospectus and
in the incorporated documents. The development of any or all of these
factors could have an
adverse impact on our financial position and our results of
operations.
Any forward-looking statements are based
upon management’s beliefs and assumptions at the time they are made. We undertake no obligation to publicly
update or revise any forward-looking statements included or incorporated by
reference in this prospectus or to update the reasons why actual results could
differ from those contained in such statements, whether as a result of new
information, future events or otherwise. In light of these risks, uncertainties
and assumptions, the forward-looking statements discussed in this prospectus or the
incorporated documents might not occur, and you should not put undue reliance on
any forward-looking statements.
We are subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). Accordingly, we file annual, quarterly and current reports, proxy
statements and other information with the SEC. You may read and copy any reports,
statements or other information that we may file with the SEC at the SEC’s
Public Reference Room at 100 F Street, N.E., Room 1580, Washington, D.C., 20549.
You may obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that
contains reports, proxy and information statements and other information about
issuers that file electronically with the SEC. The address of the SEC’s Internet
site is http://www.sec.gov.
The SEC allows us to incorporate by
reference the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information that we incorporate by reference is considered to be a part of this
prospectus, and the information we later file with the SEC that is incorporated by reference in
this prospectus will
automatically update information previously contained in this prospectus
and any incorporated
document. Any statement contained in this prospectus
or in a document incorporated by reference in this prospectus will be deemed
modified or superseded to the extent that a later statement contained in this
prospectus or in an
incorporated document modifies or supersedes such earlier
statement.
This prospectus incorporates by
reference the documents listed below that we have filed with the SEC (excluding
any portion of these
documents that has been furnished to and deemed not to be filed with the
SEC):
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Report(s)
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Period(s) of Report(s) or Date(s) Filed
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• Annual
Report on Form 10-K
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For the fiscal year ended June 30, 2008
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• Quarterly
Report on Form 10-Q
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For the quarter ended September 30,
2008
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• Current
Reports on Form
8-K
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Filed on September 15, 2008, November
10, 2008, November 24, 2008 and December 9,
2008
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We also incorporate by reference any future documents we may file with
the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, excluding any document or portion
thereof that has been furnished to and deemed not to be filed with the
SEC.
These documents are available without
charge to you on the Internet at www.smbtonline.com or if you call or write to: Investor
Relations, Southern
Missouri Bancorp, Inc., 531
Vine Street, Poplar Bluff, Missouri 63901, telephone: (573) 778-1800. The reference to our website
is not intended to be an active link and the information on our website is not,
and you must not consider the information to be, a part of this
prospectus.
We have also filed a registration
statement with the SEC relating to the securities offered by this
prospectus. This prospectus, which constitutes part
of the registration statement, does not contain all of the information presented
or incorporated by reference in the registration statement and its exhibits. You
may obtain from the SEC a copy of the registration statement and exhibits that
we filed with the SEC as
described above.
The registration statement may contain
additional information that may be important to you.
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This
summary highlights information contained elsewhere in, or incorporated by
reference into, this prospectus. As a result, it does not contain all of
the information that may be important to you or that you should consider
before investing in our securities. You should read this entire
prospectus, including the “Risk Factors” section, and the documents
incorporated by reference, which are described under “Where You Can Find
More Information” in this prospectus.
Southern
Missouri Bancorp, Inc.
Southern Missouri Bancorp, Inc. is
a bank holding company incorporated under the laws of the State of
Missouri. We conduct our business primarily through our wholly
owned subsidiary, Southern Missouri Bank & Trust Co., a
Missouri-chartered trust company (the equivalent of a commercial bank
charter) that was originally formed in 1887. The Bank conducts its business
from its headquarters in Poplar Bluff, Missouri and eight additional full service offices
located in Poplar Bluff, Van Buren, Dexter, Kennett, Doniphan, Sikeston,
Qulin and
Matthews,
Missouri. The principal business of the Bank
consists primarily of attracting retail deposits from the general public
and using these
deposits along with
wholesale funding from the Federal Home Loan Bank of Des Moines, and to a lesser extent,
brokered deposits, to invest in one- to four-family residential mortgage
loans, mortgage loans secured by commercial real estate, commercial
non-mortgage business loans and consumer loans. These funds are
also used to purchase mortgage-backed and related
securities, U.S. Government agency obligations and other
permissible investments.
Our common stock is traded on the
NASDAQ Global Market under the ticker symbol “SMBC.” Our
principal executive offices are located at 531 Vine Street, Poplar Bluff,
Missouri 63901. Our telephone number is (573) 778-1800.
Securities
Being Offered
The securities being offered by
this prospectus consist of (i) a warrant, or portions thereof, which
expires on December 5, 2018, to purchase 114,326 shares of our common
stock at an exercise price of $12.53 per share, subject to adjustment as
described in this prospectus, and (ii) the shares of our common stock
which may be purchased upon exercise of the warrant. We issued
the warrant on December 5, 2008 to the United States Department of the
Treasury (the “Treasury”) pursuant to Treasury’s Troubled Asset Relief
Program Capital Purchase Program. Concurrent with the issuance of the
warrant, we sold to Treasury 9,550 shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series A (the “Series A Preferred Stock”),
liquidation preference amount $1,000 per share, for an aggregate purchase
price of $9.55 million. The issuances of the warrant and the
Series A Preferred Stock were completed in a private placement to Treasury
exempt from the registration requirements of the Securities Act of
1933. We were required under the terms of the related
securities purchase agreement between us and Treasury to register for
resale the warrant and the shares of our common stock underlying the
warrant. The terms of the warrant and the terms of our common
stock and the Series A Preferred Stock are described under “Description of
Warrant” and “Description of Capital Stock.” The securities
purchase agreement between us and Treasury was attached as Exhibit 10.1 to
our Current Report on Form 8-K filed on December 9, 2008 and incorporated
into this prospectus by reference. See “Where You Can Find More
Information.”
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RISK
FACTORS
An
investment in our securities is subject to certain risks. You should carefully
review the following risk factors and other information contained in this
prospectus and the documents incorporated by reference, before deciding whether
an investment in our securities is suited to your particular
circumstances. The risks and uncertainties not presently known to us
or that we currently deem immaterial also may impair our business operations. If
any of the following risks actually occur, our business, results of operations
and financial condition could suffer. In that event, the value of our securities
could decline, and you may lose all or part of your investment. The risks
discussed below also include forward-looking statements, and our actual results
may differ materially from those discussed in these forward-looking
statements.
Risks
Relating to Southern Missouri
Dramatic declines in the housing market,
with decreasing home prices and increasing delinquencies and foreclosures, have
negatively impacted the credit performance of mortgage and construction loans and
resulted in significant write-downs of assets by many financial
institutions. In addition, the values of real estate collateral
supporting many loans have declined and may continue to decline. General
downward economic trends, reduced availability of
commercial credit and increasing unemployment have negatively impacted the
credit performance of commercial and consumer credit, resulting in additional
write-downs. Concerns over the stability of the financial markets
and the economy have resulted in
decreased lending by financial institutions to their customers and to each
other. This market turmoil and tightening of credit has led to
increased commercial and consumer deficiencies, lack of customer confidence,
increased market volatility and widespread
reduction in general business activity. Competition among depository
institutions for deposits has increased significantly. Financial institutions
have experienced decreased access to deposits
or borrowings.
The resulting economic pressure on consumers and
businesses and the lack of confidence in the financial markets may adversely
affect our business, financial condition, results of operations and stock
price.
Our ability to assess the
creditworthiness of customers and to estimate the losses inherent in our
credit exposure is made more complex by these difficult market and economic
conditions. As a result of the foregoing factors, there is a
potential for new federal or state laws and regulations regarding lending and
funding practices and liquidity
standards, and bank regulatory agencies are
expected to be very aggressive in responding to concerns and trends identified
in examinations. This increased government action may increase our
costs and limit our ability to pursue certain business opportunities. We
also may be required to pay even higher Federal Deposit Insurance Corporation
(“FDIC”) premiums than the recently increased
level, because financial institution failures resulting from the depressed
market conditions have
depleted and may continue to deplete the deposit insurance fund and reduce its
ratio of reserves to insured deposits.
We do not believe these
difficult conditions are likely to improve in
the near future. A worsening of these conditions would
likely exacerbate the
adverse effects of these difficult market and economic conditions on us, our
customers and the other financial institutions in our market. As a
result, we may experience increases in foreclosures, delinquencies and customer
bankruptcies, as well as more restricted access to
funds.
Recent
legislative and regulatory initiatives to address difficult market and economic
conditions may not stabilize the U.S. banking system.
The recently enacted Emergency Economic
Stabilization Act of 2008 (the “EESA”) authorizes Treasury to purchase
from financial institutions and their holding companies up to $700 billion in
mortgage loans, mortgage-related securities and certain other financial
instruments, including debt and equity securities issued by financial
institutions and their holding companies, under a troubled asset relief
program, or “TARP.” The purpose of TARP is to
restore confidence and stability to the U.S. banking system and to encourage
financial institutions to increase their lending to customers and to each
other. The Treasury has allocated $250 billion towards the TARP
Capital Purchase Program. Under the TARP Capital Purchase
Program, Treasury
is purchasing equity securities from
participating institutions. The warrant offered by this
prospectus, together with our Series A Preferred Stock, was issued by us to
Treasury pursuant to the TARP Capital Purchase Program. The EESA also increased federal deposit insurance on most deposit accounts from $100,000 to
$250,000. This increase is in place until the end of 2009 and is not
covered by deposit insurance premiums paid by the banking
industry.
The EESA followed, and has been followed
by, numerous actions by the Federal Reserve, the U.S. Congress, Treasury, the
FDIC, the SEC and others to address the current liquidity and credit crisis that
has followed the sub-prime meltdown that commenced in 2007. These
measures include homeowner relief that encourage loan restructuring and
modification; the establishment of significant liquidity and credit facilities
for financial institutions and investment banks; the lowering of the federal funds
rate; emergency action against short selling practices; a temporary guaranty
program for money market funds; the establishment of a commercial paper funding
facility to provide
back-stop liquidity to commercial paper issuers; and coordinated international
efforts to address illiquidity and other weaknesses in the banking
sector. The purpose of these legislative and
regulatory actions is to stabilize the U.S. banking system. The EESA and the other regulatory initiatives described above may not have their desired effects. If the volatility in the
markets continues
and economic conditions fail to improve or
worsen, our business,
financial condition and
results of operations could
be materially and adversely affected.
Current
levels of market volatility are unprecedented.
The capital and credit markets have been experiencing
volatility and disruption for more than a year. In recent months, the volatility
and disruption has reached
unprecedented levels. In some cases, the markets have produced
downward pressure on stock prices and credit availability for certain issuers
without regard to those issuers’ underlying financial strength. If
current levels of market disruption and volatility continue or
worsen, there can be no assurance that we will not experience an adverse effect,
which may be material, on our ability to access capital and on our business,
financial condition and results of operations.
Our allowance for
loan losses may prove to be insufficient to absorb probable losses in our loan
portfolio.
Lending money is a substantial part of
our business. Every loan carries a certain risk that it will not be repaid in
accordance with its terms or that any underlying collateral will not be sufficient to
assure repayment. This risk is affected by, among other
things:
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cash
flow of the borrower and/or the project being
financed;
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in
the case of a collateralized loan, the changes and uncertainties as to the
future value of the collateral;
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the
credit history of a particular
borrower;
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changes
in economic and industry conditions;
and
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the
duration of the loan.
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We maintain an allowance for loan losses
which we believe is appropriate to provide for potential losses in our loan
portfolio. The amount of
this allowance is determined by our management through a periodic review and
consideration of several factors, including, but not limited
to:
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an
ongoing review of the quality, size and diversity of the loan
portfolio;
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evaluation
of non-performing loans;
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historical
default and loss experience;
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historical
recovery experience;
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existing
economic conditions;
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risk
characteristics of the various classifications of loans;
and
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the
amount and quality of collateral, including guarantees, securing the
loans.
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If our
loan losses exceed our allowance for probable loan losses, our business,
financial condition and profitability may suffer.
Downturns
in the real estate markets in our primary market area could hurt our
business.
Our business activities and credit exposure are primarily
concentrated in southeast Missouri. While we
did not and do not have a sub-prime lending program, our residential real
estate, construction and land loan portfolios, our commercial and multifamily
loan portfolios and certain
of our other loans could be affected by the downturn in the residential real
estate market. We anticipate that significant declines in the real
estate markets in our primary market area would hurt our business and would mean
that collateral for our loans would hold less
value. As a result, our ability to recover on defaulted loans by
selling the underlying real estate would be diminished, and we would be more
likely to suffer losses on defaulted loans. The events and conditions
described in this risk factor could therefore have a
material adverse effect on our business, results of operations and financial
condition.
Liquidity
risk could impair our ability to fund operations and jeopardize our financial
condition.
Liquidity is essential to our
business. An inability to
raise funds through deposits, borrowings, the sale of loans and other sources
could have a substantial negative effect on our liquidity. Our access to funding
sources in amounts adequate to finance our activities or the terms of which
are acceptable to us could be impaired by
factors that affect us specifically or the financial services industry or
economy in general. Factors that could detrimentally impact our access to
liquidity sources include a decrease in the level of our business activity as a result of a downturn in the
markets in which our loans are concentrated or adverse regulatory action against
us. Our ability to borrow could also be impaired by factors that are not
specific to us, such as a disruption in the financial markets or negative views and expectations
about the prospects for the financial services industry in light of the recent
turmoil faced by banking organizations and the continued deterioration in credit
markets.
We
may elect or be compelled to seek additional capital in the future, but that
capital may not be available when it is needed.
We are required by federal and state
regulatory authorities to maintain adequate levels of capital to support our
operations. In addition, we may elect to raise additional
capital to support our
business or to finance acquisitions, if any, or we may otherwise elect
or be required to raise additional
capital. In that regard, a number of financial institutions have
recently raised considerable amounts of capital in response to a deterioration in their results of
operations and financial condition arising from the turmoil in the mortgage loan
market, deteriorating economic conditions, declines in real estate values and
other factors. Should we be required by regulatory authorities
to raise additional capital, we may seek
to do so through the issuance of, among other things, our common stock or
preferred stock.
Our ability to raise additional capital,
if needed, will depend on conditions in the capital markets, economic conditions
and a number of other
factors, many of which are outside our control, and on our financial
performance. Accordingly, we cannot assure you of our ability to raise
additional capital if needed or on terms acceptable to us. If we cannot raise
additional capital when needed, it may have a material
adverse effect on our financial condition, results of operations and
prospects.
If we are unable to redeem our Series A Preferred Stock after five
years, the cost of this capital to us will increase substantially.
If we are unable to redeem the Series A
Preferred Stock prior to February 15, 2014, the cost of this capital to us will
increase substantially on that date, from 5.0% per annum (approximately $447,500
annually) to 9.0% per
annum (approximately $859,500
annually). See “Description of Capital Stock—Series A Preferred
Stock-Redemption and Repurchases.” Depending on our financial
condition at the time, this increase in the annual dividend rate on the Series A
Preferred Stock could have a material negative effect on our
liquidity.
Rising
interest rates may hurt our profits.
To be profitable we have to earn more
interest on our loans and investments than we pay on our deposits and
borrowings. If interest rates continue to rise, our net interest
income and the value of our
assets could be reduced if interest paid on interest-bearing liabilities, such
as deposits and borrowings, increases more quickly than interest received on
interest-earning assets, such as loans and investments. This is most likely to
occur if short-term interest rates increase at a faster
rate than long-term interest rates, which would cause income to go
down. At September 30, 2008, $97.4 million, or 27.0%, of our loan portfolio consisted of
fixed rate one- to four-family residential real estate loans. In addition, rising interest rates may
hurt our income because they may reduce the demand for loans and the value of
our securities. A flat yield curve may also hurt our income, because
it would reduce our ability to reinvest proceeds from loan and investment repayments at higher
rates.
Non-compliance
with USA Patriot Act, Bank Secrecy Act, or other laws and regulations could
result in fines or sanctions.
The USA Patriot and Bank Secrecy Acts
require financial institutions to develop programs to prevent financial institutions from being
used for money laundering and terrorist activities. If such activities are
detected, financial institutions are obligated to file suspicious activity
reports with the Treasury’s Office of Financial Crimes Enforcement
Network. These rules
require financial institutions to establish procedures for identifying and
verifying the identity of customers seeking to open new financial accounts.
Failure to comply with these regulations could result in fines or sanctions.
Several banking institutions have recently received large fines for non-compliance
with these laws and regulations. Although we have developed policies and
procedures designed to assist in compliance with these laws and regulations, no
assurance can be given that these policies and procedures will be
effective in preventing violations of these laws and
regulations.
The financial services industry is
extensively regulated. Federal and state banking regulations are designed
primarily to protect the deposit insurance funds and consumers, not to benefit a
financial company's shareholders. These regulations may
sometimes impose significant limitations on operations. The significant federal
and state banking regulations that affect us are described in our Annual Report
on Form 10-K for the year ended June 30, 2008 under “Item 1. Business-Supervision and
Regulation.” See
“Where You Can Find More
Information.” These regulations, along
with the currently existing tax, accounting, securities, insurance, and monetary
laws, regulations, rules, standards, policies, and interpretations
control the methods by which financial
institutions conduct business, implement strategic initiatives and tax
compliance, and govern financial reporting and disclosures. These laws,
regulations, rules, standards, policies, and interpretations are constantly
evolving and may change significantly
over time.
Significant
legal actions could subject us to substantial liabilities.
We are from time to time subject to claims
related to our operations. These claims and legal
actions, including supervisory actions by our regulators, could involve large monetary
claims and significant defense costs. As a result, we may be exposed to substantial
liabilities, which could adversely affect our results of operations and financial
condition.
Our
future success is dependent on our ability to compete effectively in the highly
competitive banking industry.
We face substantial competition in all
phases of our operations from a variety of different competitors. Our future
growth and success will depend on our ability to compete effectively in this highly competitive
environment. To date, we have grown our business successfully by focusing on our
business lines in geographic markets and
emphasizing the high level of service
and responsiveness desired by our customers. We compete for loans, deposits and other financial
services with other commercial banks, thrifts, credit unions, brokerage houses,
mutual funds, insurance companies and specialized finance companies. Many of our
competitors offer products and services which we do not offer, and many have substantially greater
resources and lending limits, name recognition and market presence that benefit
them in attracting business. In addition, larger competitors may be able to
price loans and deposits more aggressively than we do, and smaller newer competitors may also be more
aggressive in terms of pricing loan and deposit products than we are in order to
obtain a share of the market. Some of the financial institutions and financial
services organizations with which we compete are not subject to the same degree of regulation as
is imposed on bank holding companies, federally insured state-chartered banks
and national banks and federal savings banks. As a result, these nonbank
competitors have certain advantages over us in accessing funding and in providing various
services.
We
are subject to security and operational risks relating to our use of technology
that could damage our reputation and our business.
Security breaches in our internet
banking activities could expose us to possible liability and damage our reputation. Any
compromise of our security also could deter customers from using our internet
banking services that involve the transmission of confidential information. We
rely on standard internet security systems to provide the security and authentication necessary to
effect secure transmission of data. These precautions may not protect our
systems from compromises or breaches of our security measures that could result
in damage to our reputation and our business. Additionally, we outsource our data processing to a third
party. If our third party provider encounters difficulties or if we have
difficulty in communicating with such third party, it will significantly affect
our ability to adequately process and account for customer transactions, which would significantly affect
our business operations.
We
rely on dividends from the Bank for substantially all of our
revenue.
Southern Missouri Bancorp receives
substantially all of its revenue as dividends from the Bank. Federal
and state regulations limit the amount of dividends that the Bank may pay to
Southern Missouri Bancorp. See “Regulatory
Considerations.” In the event the Bank becomes unable to pay
dividends to Southern Missouri Bancorp, Southern Missouri Bancorp may not be
able to service its debt, pay its other obligations or pay dividends on its
common stock. Accordingly, our inability to receive dividends from
the Bank could also have a material adverse effect on our business, financial
condition and results of operations and the value of your investment in our
common stock.
Risks
Relating to Our Common Stock
The
price of our common stock may fluctuate significantly, and this may make it
difficult for you to resell our common stock when you want or at prices you find
attractive.
We cannot predict how our common stock
will trade in the future. The market value of our common stock will likely continue to
fluctuate in response to a number of factors including the following, most of
which are beyond our control, as well as the other factors described
in this “Risk Factors” section:
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actual
or anticipated quarterly fluctuations in our operating and financial
results;
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developments
related to investigations, proceedings or litigation that involve
us;
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changes
in financial estimates and recommendations by financial
analysts;
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dispositions,
acquisitions and financings;
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actions
of our current shareholders, including sales of common stock by existing
shareholders and our directors and executive
officers;
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fluctuations
in the stock price and operating results of our
competitors;
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regulatory
developments; and
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developments
related to the financial services
industry.
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The market value of our common stock may also be affected
by conditions affecting the financial markets in general, including price and
trading fluctuations. These conditions may result in (i) volatility in the
level of, and
fluctuations in, the market prices of
stocks generally and, in turn, our common stock and (ii) sales of
substantial amounts of our common stock in the market, in each case that could
be unrelated or disproportionate to changes in our operating performance. These
broad market fluctuations may adversely affect the market value of our common stock. Our common stock also has a low average
daily trading volume relative to many other stocks, which may limit
an investor’s ability to quickly accumulate or divest
themselves of large blocks of our stock. This can lead to significant price
swings even when a relatively small number of shares are being
traded.
There
may be future sales of additional common stock or preferred stock or other
dilution of our equity, which may adversely affect the market price of our
common stock.
We are not restricted from issuing
additional common stock or
preferred stock, including
any securities that are convertible into or exchangeable for, or that represent
the right to receive, common stock or preferred stock or any substantially similar securities.
The market
value of our common stock
could decline as a result of sales by us of a large number of shares of common
stock or preferred stock or similar securities in the market or the perception that such
sales could occur.
Anti-takeover
provisions could negatively impact our shareholders.
Provisions in our articles of incorporation and
bylaws, the corporate law
of the State of Missouri and federal regulations could delay or
prevent a third party from acquiring us, despite the possible benefit to
our
shareholders, or otherwise
adversely affect the
market price of
any class of our equity
securities, including our
common stock. These provisions include: a prohibition on voting shares of common
stock beneficially owned in excess of 10% of total shares outstanding without
prior Board approval, supermajority voting
requirements for certain business combinations with any person who beneficially
owns 10% or more of our outstanding common stock; the election of directors to
staggered terms of three years; advance notice requirements for nominations for
election to our Board of Directors and for proposing matters that shareholders
may act on at shareholder meetings, a requirement that only directors may fill a
vacancy in our Board of Directors, supermajority voting requirements to remove
any of our directors and the other provisions described under “Description of
Capital Stock─Anti-Takeover Effects.” Our articles of incorporation also authorize our Board of Directors to
issue preferred stock, and preferred stock could be issued as a defensive
measure in response to a takeover proposal. For further information,
see “Description of Capital Stock—Preferred Stock.” In addition, because we are a bank holding company,
purchasers of 10% or more of our common stock may be required to obtain approvals under the Change in
Bank Control Act of 1978,
as amended, or the Bank Holding Company Act of 1956, as amended (and in certain cases such approvals
may be required at a lesser percentage of ownership). Specifically, under
regulations adopted by the Federal Reserve, (a) any other bank holding company
may be required to obtain the approval of the Federal Reserve to acquire or
retain 5% or more of our common stock and (b) any person other than a bank
holding company may be required to obtain the approval of the Federal Reserve to
acquire or retain 10% or more of our common stock.
These provisions may discourage
potential takeover attempts, discourage bids for our common stock at a premium
over market price or adversely affect the market price of, and the voting and
other rights of the holders of, our common stock. These provisions could also discourage
proxy contests and make it more difficult for holders of our common stock
to elect directors other
than the candidates nominated by our Board of Directors.
The
securities purchase agreement between us and Treasury limits our ability to pay
dividends on and repurchase our common stock.
The securities purchase agreement
between us and Treasury provides that prior to the earlier of (i) December 5,
2011 and (ii) the date on which all of the shares of the Series A Preferred
Stock have been redeemed by us or transferred by Treasury to third parties, we
may not, without the consent of Treasury, (a) increase the cash dividend on our
common stock or (b) subject to limited exceptions, redeem, repurchase or
otherwise acquire shares of our common stock or preferred stock (other than the
Series A Preferred Stock) or trust preferred securities. In addition,
we are unable to pay any dividends on our common stock unless we are current in
our dividend payments on the Series A Preferred Stock. These
restrictions, together with the potentially dilutive impact of the warrant
described in the next risk factor, could have a negative effect on the value of
our common stock. Moreover, holders of our common stock
are entitled to receive dividends only when, as and if declared by our
Board of Directors.
Although we have historically
paid cash dividends on our common stock, we
are not required to do so and our Board of Directors could reduce or eliminate our common stock
dividend in the future.
The
Series A Preferred Stock impacts net income available to our common shareholders
and earnings per common share, and the warrant we issued to Treasury may be
dilutive to holders of our common stock.
The dividends declared on the Series A Preferred Stock will reduce the net income available to
common shareholders and our earnings per common
share. The Series A Preferred Stock will also receive preferential treatment
in the event of liquidation, dissolution or winding up of Southern Missouri Bancorp. Additionally, the ownership interest of the existing
holders of our common stock will be diluted to the extent the warrant we
issued to Treasury in
conjunction with the sale
to Treasury of the Series A Preferred Stock is exercised. The shares
of common stock underlying
the warrant represent approximately 5.2% of the shares of our common stock outstanding as of
December 29, 2008 (including the shares issuable upon
exercise of the warrant in total shares outstanding). Although
Treasury has agreed not to vote any of the shares of common stock it receives
upon exercise of the warrant, a transferee of any portion of the warrant or of
any shares of common stock acquired upon exercise of the warrant is not bound by
this restriction.
The
voting limitation provision in our articles of incorporation could limit your
voting rights as a holder of our common stock.
Our articles of incorporation
provides that any person or group who acquires
beneficial ownership of our common stock in excess of 10% of the outstanding
shares may not vote the excess shares without prior Board
approval. Accordingly, if you acquire beneficial ownership of more
than 10% of the outstanding shares of our common stock, your voting rights with
respect to the common stock might not be commensurate with your economic
interest in our company.
USE
OF PROCEEDS
All securities sold pursuant to this
prospectus will be sold by the selling securityholders and we will not receive
the proceeds from such sales.
As a bank holding company, Southern Missouri Bancorp is subject to regulation, supervision
and examination by the Federal Reserve. For a discussion of elements of the
regulatory framework applicable to bank holding companies and their
subsidiaries, please refer to our Annual Report on
Form 10-K for the fiscal
year ended June 30, 2008 and the other documents incorporated herein by
reference as described under “Where You Can Find More Information.” This regulatory framework is intended
primarily for the protection of depositors and the federal deposit insurance
fund and not for the protection of security holders, including holders of our common
stock. As a result of this regulatory framework, our results of
operations and financial condition are affected by actions of the Federal
Reserve, the FDIC, which insures the deposits of our bank subsidiary, Southern Missouri
Bank & Trust Co., within certain limits, and the
Missouri Division of
Finance, which also regulates the Bank.
Our ability to pay dividends on
our common stock depends primarily on
dividends we receive from the Bank. Under federal regulations,
the dollar amount of dividends the Bank may pay depends upon its capital position and recent net
income. Generally, if the Bank satisfies its regulatory capital
requirements, it may make dividend payments up to the limits prescribed under
state law and FDIC regulations. The Federal Reserve has issued a policy
statement on the payment of cash dividends by bank holding companies, which
expresses the Federal Reserve’s view that a bank holding company should pay cash
dividends only to the extent that its net income for the past year is sufficient
to cover both the cash dividends and a rate of earnings retention that is
consistent with the holding company’s capital needs, asset quality and overall
financial condition. The Federal Reserve also indicated that it would be
inappropriate for a company experiencing serious financial problems to borrow
funds to pay dividends. Furthermore, a bank holding company may be prohibited
from paying any dividends if the holding company’s bank subsidiary is not
adequately capitalized. Under Missouri law, Southern Missouri Bancorp is generally prohibited from paying a
dividend at a time when its
net assets are less than its stated capital or when the payment would reduce its
net assets below its stated capital.
There are numerous other governmental requirements and
regulations that affect our business activities. A change in applicable
statutes, regulations or regulatory policy may have a material effect on our
business and on our ability to pay dividends on
our common stock. Depository institutions, like
the Bank, are also affected by various federal
laws, including those relating to consumer protection and similar
matters.
In addition to the foregoing regulatory
restrictions, we are and may in the future become subject to contractual
restrictions that would limit or prohibit us from paying dividends on our common
stock, including those contained in the securities purchase
agreement between us and Treasury, as described under “Description of Capital Stock—Common
Stock-Restrictions on Dividends and Repurchases Under Agreement with
Treasury.”
DESCRIPTION
OF WARRANT
This section summarizes specific terms and provisions
of the warrant we issued to
Treasury on December 5, 2008 concurrent with our sale to Treasury of 9,550
shares of Series A Preferred Stock pursuant to the TARP Capital Purchase
Program. The description of the warrant contained
in this section is qualified in its entirety by the actual terms of the warrant, a copy of which was attached as
Exhibit 4.2 to our Current Report on Form 8-K filed on December 9, 2008 and
incorporated by reference into this prospectus. See “Where You Can
Find More Information.”
General
The warrant gives the holder the right
to initially purchase up to 114,326 shares of our common stock at an exercise
price of $12.53 per share. Subject to the limitations on exercise to
which Treasury is subject described under “—Transferability,” the warrant is
immediately exercisable and expires on December 5, 2018. The exercise
price may be paid (i) by having us withhold from the shares of common stock that
would otherwise be issued to the warrant holder upon exercise, a number of
shares of common stock having a market value equal to the aggregate exercise
price or (ii) if both we and the warrant holder consent, in
cash.
Possible
Reduction in Number of Shares
If we (or any successor to us by a
business combination) complete one or more Qualified Equity Offerings prior to
December 31, 2009 resulting in aggregate gross proceeds of at least $9.55
million (plus the aggregate liquidation preference amount of any preferred stock
issued to Treasury by a successor to us), the number of shares of common stock
underlying the warrant then held by Treasury will be reduced by
50%. The number of shares subject to the warrant are subject to
further adjustment as described below under “—Other
Adjustments.”
A “Qualified Equity Offering” is defined
as the sale for cash by Southern Missouri Bancorp (or its
successor) of preferred
stock or common stock that qualifies as Tier 1 capital under applicable regulatory capital
guidelines.
Transferability
The warrant is not subject to any
restrictions on transfer; however, Treasury may only transfer or exercise the
warrant with respect to one-half of the shares underlying the warrant prior to
the earlier of (i) the date on which we (or any successor to us by a business
combination) have received aggregate gross proceeds of at least $9.55 million
(plus the aggregate liquidation preference amount of any preferred stock issued
to Treasury by a successor to us) from one or more Qualified Equity Offerings
(including those by any successor to us by a business combination) and (ii)
December 31, 2009.
Voting
of Warrant Shares
Treasury has agreed that it will not
vote any of the shares of common stock that it acquires upon exercise of the
warrant. This does not apply to any other person who acquires any
portion of the warrant, or the shares of common stock underlying the warrant,
from Treasury. Our articles of incorporation provides,
however, that any person who beneficially owns shares of our common stock in
excess of 10% of the outstanding shares may not vote the excess shares without
the prior approval of our Board of Directors. See “Description of Capital
Stock—Anti-Takeover Effects-Voting Limitation.”
Other
Adjustments
The exercise price of the warrant
and the number of shares underlying the warrant
automatically adjust upon
the following events:
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any stock split, stock dividend,
subdivision, reclassification or combination of our common
stock;
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until the earlier of (i) the date
on which Treasury no longer holds any portion of the warrant and (ii)
December 5, 2011, issuance of our common stock (or securities convertible
into our common stock) for consideration (or having a conversion price
per share) less than
90% of then current market value, except for issuances in connection with
benefit plans, business acquisitions and public
or other broadly marketed
offerings;
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a
pro rata repurchase by us of our common stock;
or
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a determination by our Board of
Directors to make an adjustment to the anti-dilution provisions as
are reasonably
necessary, in the good faith opinion of the Board, to protect the purchase
rights of the warrant holders.
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In addition, if we declare any dividends
or distributions on our common stock other than our historical, ordinary cash
dividends, dividends paid in our common stock and other dividends or
distributions covered by the first bullet point above, the exercise price of the
warrant will be adjusted to reflect such distribution.
In the event of any merger,
consolidation, or other business combination to which we are a party, the
warrantholder’s right to receive shares of our common stock upon exercise of the
warrant will be converted into the right to exercise the warrant to acquire the
number of shares of stock or other securities or property (including cash) which
the common stock issuable upon exercise of the warrant immediately prior to such
business combination would have been entitled to receive upon consummation of
the business combination. For purposes of the provision described in
the preceding sentence, if the holders of our common stock have the right to
elect the amount or type of consideration to be received by them in the business
combination, then the consideration that the warrantholder will be entitled to
receive upon exercise will be the amount and type of consideration received by a
majority of the holders of the common stock who affirmatively make an
election.
No
Rights as Shareholders
The warrant does not entitle its
holder to any of the rights of a shareholder
of Southern Missouri Bancorp prior to exercise.
Our authorized capital stock consists
of:
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4,000,000
shares of common stock, par value $.01 per share;
and
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500,000
shares of preferred stock, par value $.01 per
share.
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As of December 29, 2008, there were 2,087,976 shares of our common stock issued and
outstanding and 9,550 shares of our preferred stock issued
and outstanding, all of
which consisted of our Series A Preferred Stock.
In this section we describe certain features and rights
of our capital stock. The summary does not purport to be exhaustive and is
qualified in its entirety by reference to our articles of incorporation and bylaws and
to applicable Missouri law.
Common Stock
General.
Except as described below
under “—Anti-takeover
Effects –Voting Limitation,” each holder of common stock is entitled
to one vote for each share on all matters to be voted upon by the common
shareholders. There are no cumulative voting
rights. Subject to preferences to which holders of any shares of preferred stock
may be entitled, holders of common stock will be entitled to receive ratably any
dividends that may be declared from time to time by the Board of Directors out
of funds legally available for that purpose. In the event of our liquidation,
dissolution or winding up, holders of common stock will be entitled to share in
our assets remaining after the payment or provision for payment of our debts and
other liabilities, and the satisfaction of the liquidation preferences of the
holders of the Series A Preferred Stock and any other series of our preferred stock
then outstanding. Holders of common stock have no
preemptive or conversion rights or other subscription rights. There
are no redemption or sinking fund
provisions that apply to the common stock. All shares of common stock currently
outstanding are fully paid and nonassessable. The rights, preferences and
privileges of the holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of preferred
stock that we may designate in the future.
Restrictions on
Dividends and Repurchases Under Agreement with Treasury. The securities purchase agreement
between us and Treasury provides that prior to the earlier of (i) December 5,
2011 and (ii) the date on which all of the shares of the Series A Preferred
Stock have been redeemed by us or transferred by Treasury to third parties, we
may not, without the consent of Treasury, (a) increase the cash dividend on our
common stock or (b) subject to limited exceptions, redeem, repurchase or
otherwise acquire shares of our common stock or preferred stock (other than the
Series A Preferred Stock) or trust preferred securities.
Preferred
Stock-General
Our articles of incorporation permit our Board of Directors to authorize the issuance of up to
500,000 shares of preferred stock, par
value $0.01, in one or more series, without shareholder action. The Board of Directors can fix the designation, powers,
preferences and rights of each series. Therefore, without approval of the holders of our common stock or
the Series A Preferred Stock (except as may be required under the terms of the Series A
Preferred Stock (see “—Series A Preferred Stock—Voting Rights”) or by the rules of the NASDAQ Stock Market or any other exchange or
market on which our securities may then be listed or quoted), our Board of Directors may authorize the issuance of preferred
stock with voting, dividend, liquidation and conversion and other rights that
could dilute the voting power or other rights or adversely affect the market
value of our common stock and the Series A Preferred Stock
and may assist management
in impeding any unfriendly takeover or attempted change in
control. See “—Anti-Takeover
Effects – Authorized Shares.”
Series A Preferred
Stock
This section summarizes specific terms and provisions of the Series A Preferred Stock. The description of the
Series A Preferred Stock set forth below is qualified in its entirety by
the actual terms of the Series A Preferred Stock, as are stated in the certificate of
designation for the Series A Preferred Stock, a copy of which was attached as
Exhibit 3.1 to our Current Report on Form 8-K filed on December 9, 2008 and
incorporated by reference into this prospectus. See “Where You Can
Find More Information.”
General.
The Series A Preferred Stock constitutes a single series of our preferred stock,
consisting of 9,550
shares, par value $0.01 per
share, having a liquidation preference amount of $1,000 per share. The Series A Preferred Stock
has no maturity date. We issued the shares of Series A Preferred
Stock to Treasury on December 5, 2008 in connection with the TARP Capital
Purchase Program for a purchase price of $9.55 million.
Dividend Rate.
Dividends on the
Series A
Preferred Stock
are payable quarterly in arrears, when, as
and if authorized and declared by our Board of Directors out of legally available funds, on a
cumulative basis on the $1,000 per share liquidation preference amount plus the amount of accrued and
unpaid dividends for any prior dividend periods, at a rate of (i) 5% per annum, from the
original issuance date to but excluding the first day of the first dividend
period commencing after the fifth anniversary of the original issuance date
(i.e., 5% per annum from December 5, 2008 to but excluding February 15, 2014),
and (ii) 9% per annum, from and after the first day of the first dividend period
commencing after the fifth anniversary of the original issuance date (i.e., 9%
per annum on and after February 15, 2014). Dividends are payable quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, commencing on February 15, 2009.
Dividends on the Series A Preferred Stock will be cumulative.
If for any reason our Board of Directors does not declare a dividend on the
Series A Preferred Stock for a particular dividend period, or if our Board of Directors declares less than a full dividend, we
will remain obligated to
pay the unpaid portion of the dividend for that period and the unpaid dividend
will compound on each subsequent dividend date (meaning that dividends for
future dividend periods will accrue on any unpaid dividend amounts for prior
dividend periods).
We are not obligated to pay holders of the Series A Preferred Stock any dividend in excess
of the dividends on the Series A Preferred Stock that are payable as
described above. There is no sinking fund with respect to
dividends on the Series A
Preferred Stock.
Priority of
Dividends. So
long as the Series A Preferred Stock remains outstanding, we may not declare or
pay a dividend or other distribution on our common stock or any other shares of
Junior Stock (other than dividends payable solely in common stock) or Parity
Stock (other than dividends paid on a pro rata basis with the Series A Preferred
Stock), and we generally may not directly or indirectly purchase, redeem or
otherwise acquire any shares of common stock, Junior Stock or Parity Stock
unless all accrued and unpaid dividends on the Series A Preferred Stock for all
past dividend periods are paid in full.
“Junior Stock” means our common stock
and any other class or series of our stock the terms of which expressly provide
that it ranks junior to the Series A Preferred Stock as to dividend rights
and/or as to rights on liquidation, dissolution or winding up of Southern
Missouri Bancorp. We currently have no outstanding class or series of
stock constituting Junior Stock other than our common stock.
“Parity Stock” means any class or series
of our stock, other than the Series A Preferred Stock, the terms of which do not
expressly provide that such class or series will rank senior or junior to the
Series A Preferred Stock as to dividend rights and/or as to rights on
liquidation, dissolution or winding up of Southern Missouri Bancorp, in each
case without regard to whether dividends accrue cumulatively or
non-cumulatively. We currently have no outstanding class or series of
stock constituting Parity Stock.
Liquidation
Rights. In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of Southern Missouri Bancorp, holders of the Series A Preferred
Stock will be entitled to receive for each share of Series A Preferred Stock,
out of the assets of Southern Missouri Bancorp or proceeds available for
distribution to our shareholders, subject to any rights of our creditors, before
any distribution of assets or proceeds is made to or set aside for the holders
of our common stock and any other class or series of our stock ranking junior to
the Series A Preferred
Stock, payment of an amount equal to the sum of (i) the $1,000 liquidation
preference amount per share and (ii) the amount of any accrued and unpaid
dividends on the Series A Preferred Stock (including dividends accrued on any
unpaid dividends). To the extent the assets or proceeds available for
distribution to shareholders are not sufficient to fully pay the liquidation
payments owing to the holders of the Series A Preferred Stock and the holders of
any other class or series of our stock ranking equally with the Series A
Preferred Stock, the holders of the Series A Preferred Stock and such other
stock will share ratably in the distribution.
For purposes of the liquidation rights
of the Series A Preferred Stock, neither a merger or consolidation of Southern
Missouri Bancorp with another entity nor a sale, lease or exchange of all or
substantially all of Southern Missouri Bancorp’s assets will constitute a
liquidation, dissolution or winding up of the affairs of Southern Missouri
Bancorp.
Redemption and
Repurchases. Subject to the
prior approval of the Federal Reserve, the Series A Preferred Stock is
redeemable at our option in whole or in part at a
redemption price equal
to 100% of the liquidation
preference amount of $1,000
per share plus any accrued and unpaid
dividends to but excluding
the date of redemption (including dividends accrued on any unpaid
dividends), provided that any declared but unpaid
dividend payable on a redemption date that occurs subsequent to the record date
for the dividend will be payable to the holder of record of the redeemed shares
on the dividend record date, and provided further that the Series A Preferred Stock may be
redeemed prior to the first dividend payment date falling after the third anniversary of
the original issuance date (i.e., prior to February 15,
2012) only if (i)
we have, or our successor
following a business combination with another entity which also participated in
the TARP Capital Purchase Program has, raised aggregate gross proceeds in one
or more Qualified Equity
Offerings (as defined above under “Description of Warrant—Possible Reduction in
Number of Shares”) of at least the Minimum Amount and (ii) the aggregate redemption
price of the Series A Preferred Stock
does not exceed the
aggregate net proceeds from such Qualified Equity Offerings by us and any successor. The “Minimum Amount” means
$2,387,500 plus, in the event we are succeeded in a business combination by
another entity which also participated in the TARP Capital Purchase Program, 25%
of the aggregate liquidation preference amount of the preferred stock issued by
that entity to Treasury.
Shares of Series A Preferred Stock that
we redeem, repurchase or otherwise acquire will revert to authorized but
unissued shares of preferred stock, which may then be reissued by us as any
series of preferred stock other than the Series A Preferred
Stock.
No Conversion
Rights. Holders of the
Series A Preferred Stock have no right to exchange or convert their shares into
common stock or any other securities.
Voting Rights.
The holders of the
Series A
Preferred Stock do not have
voting rights other than those described below, except to the extent specifically required by Missouri law.
Whenever dividends have not been paid on
the Series A Preferred Stock for six or more quarterly dividend periods, whether
or not consecutive, the authorized number of directors of Southern Missouri
Bancorp will automatically increase by two and the holders of the Series A
Preferred Stock will have the right, with the holders of shares of any other
classes or series of Voting Parity Stock outstanding at the time, voting
together as a class, to elect two directors (the “Preferred Directors”) to fill such newly created directorships
at our next annual meeting of shareholders (or at a special meeting called for that purpose prior to
the next annual meeting) and at each subsequent annual meeting of shareholders until all
accrued and unpaid dividends for all past dividend periods on all outstanding
shares of Series A Preferred Stock have been paid in full at which time this
right will terminate with respect to the Series A Preferred Stock, subject to
revesting in the event of each and every subsequent default by us in the payment
of dividends on the Series A Preferred Stock.
Upon any termination of the right of the
holders of the Series A Preferred Stock and Voting Parity Stock as a class to
vote for directors as described above, the Preferred Directors will cease to be
qualified as directors, the terms of office of all Preferred Directors then in
office will terminate immediately and the authorized number of directors will be
reduced by the number of Preferred Directors which had been elected by the
holders of the Series A Preferred Stock and the Voting Parity Stock. Any
Preferred Director may be removed at any time, with or without cause, and any
vacancy created by such a removal may be filled, only by the affirmative vote of
the holders a majority of the outstanding shares of Series A
Preferred Stock voting
separately as a class together with the holders of shares of Voting Parity
Stock, to the extent the voting rights of such holders described above are then
exercisable. If the office of any Preferred Director becomes vacant for any
reason other than removal from office, the remaining Preferred Director may
choose a successor who will hold office for the unexpired term of the office in
which the vacancy occurred.
The term “Voting Parity Stock” means
with regard to any matter as to which the holders of the Series A Preferred
Stock are entitled to vote, any series of Parity Stock (as defined under
“—Dividends-Priority of Dividends”) upon which voting rights similar to those of
the Series A Preferred Stock have been conferred and are exercisable with
respect to such matter. We currently have no outstanding shares of
Voting Parity Stock.
In addition to any other vote or consent
required by Missouri law or by our articles of incorporation, the vote or consent of the holders of at
least 66 2/3% of the outstanding shares of
Series A Preferred Stock, voting as a separate class, is
required in order to do the following:
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amend
our articles of incorporation or the certificate of designation for the
Series A Preferred Stock to authorize or create or increase the authorized
amount of, or any issuance of, any shares of, or any securities
convertible into or exchangeable or exercisable for shares of, any class
or series of stock ranking senior to the Series A Preferred Stock with
respect to the payment of dividends and/or the distribution of assets on
any liquidation, dissolution or winding up of Southern Missouri Bancorp;
or
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amend
our articles of incorporation or the certificate of designation for the
Series A Preferred Stock in a way that materially and adversely affect the
rights, preferences, privileges or voting powers of the Series A Preferred
Stock; or
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consummate
a binding share exchange or reclassification involving the Series A
Preferred Stock or a merger or consolidation of Southern Missouri Bancorp
with another entity, unless (i) the shares of Series A Preferred
Stock remain outstanding or, in the case of a merger or consolidation in
which
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Southern
Missouri Bancorp is not the surviving or resulting entity, are converted
into or exchanged for preference securities of the surviving or resulting
entity or its ultimate parent, and (ii) the shares of Series A
Preferred Stock remaining outstanding or such preference securities, have
such rights, preferences, privileges, voting powers, limitations and
restrictions, taken as a whole, as are not materially less favorable than
the rights, preferences, privileges, voting powers, limitations and
restrictions of the Series A Preferred Stock prior to consummation of the
transaction, taken as a whole;
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provided, however, that
(1) any increase in the amount of our authorized but unissued shares of
preferred stock, and (2) the creation and issuance, or an increase in the
authorized or issued amount, of any other series of preferred stock, or any
securities convertible into or exchangeable or exercisable for any other series
of preferred stock, ranking equally with and/or junior to the Series A Preferred
Stock with respect to the payment of dividends, whether such dividends are
cumulative or non-cumulative and the distribution of assets upon our
liquidation, dissolution or winding up, will not be deemed to materially and
adversely affect the rights, preferences, privileges or voting powers of the
Series A Preferred Stock and will not require the vote or consent of the holders
of the Series A Preferred Stock.
To the extent holders of the Series A
Preferred Stock are entitled to vote, holders of shares of the Series A
Preferred Stock will be entitled to one for each share then
held.
Anti-takeover
Effects
The provisions of our articles of incorporation and bylaws and
Missouri law summarized in
the following paragraphs may have anti-takeover effects and could delay, defer, or prevent a tender offer
or takeover attempt that a shareholder might consider to be in such
shareholder’s best interest, including those
attempts that might result in a premium over the market price for the shares
held by shareholders, and may make removal of the incumbent management and directors more difficult.
Authorized
Shares. Our articles of incorporation authorize the issuance of 4,000,000 shares of common stock and
500,000 shares of preferred
stock. These shares of common stock and preferred stock provide our
Board of Directors with as much flexibility as possible to effect, among other
transactions, financings, acquisitions, stock dividends, stock splits and the
exercise of employee stock options. However, these additional
authorized shares may also be used by the Board of Directors consistent with its
fiduciary duty to deter future attempts to gain control of us. The
Board of Directors also has sole authority to determine the terms of any one or
more series of preferred stock, including voting rights, conversion rates, and
liquidation preferences. As a result of the ability to fix voting
rights for a series of preferred stock, the Board has the power to the extent
consistent with its fiduciary duty to issue a series of preferred stock to
persons friendly to management in order to attempt to block a tender offer,
merger or other transaction by which a third party seeks control of us, and
thereby assist members of management to retain their
positions.
Voting Limitation. Our articles of incorporation provide
that any person who beneficially owns in excess of 10% of the outstanding shares
of our common stock may not vote the excess shares without the prior approval of
a majority of the whole Board (defined as the total number of directors we would
have if there were no vacancies on the Board). This provision could
limit the voting power of a
beneficial owner of more than 10% of our outstanding shares of common stock in a
proxy contest or on other matters on which such person is entitled to
vote.
The Missouri General and Business
Corporation Law contains a control share acquisition statute which, in general
terms, provides that where a shareholder acquires issued and outstanding shares
of a corporation’s voting stock (referred to as control shares) within one of
several specified ranges (one-fifth or more but less than one-third, one-third
or more but less than a majority, or a majority or more), approval by
shareholders of the control share acquisition must be obtained before the
acquiring shareholder may vote the control shares. The required shareholder vote
is a majority all votes entitled to be cast, excluding “interested shares,”
defined as shares held by the acquiring person, officers of the corporation and
employees who are also directors of the corporation. A corporation may opt-out
of the control share statute through a provision in its articles of
incorporation or bylaws, which we have not done. Accordingly, the
Missouri control share acquisition statute applies to acquisitions of shares of
our common stock.
Board of
Directors. Except with respect to any directors who
may be elected by any class or series of preferred stock, our Board of Directors is divided into
three classes, each of which contains one-third of the members of the
Board. The members of each class are elected for a term of three
years, with the terms of office of all members of one class expiring each year
so that approximately one-third of the total number of directors is elected each
year. The classification of directors, together with the provisions
in our articles of
incorporation described
below that limit the ability of shareholders to remove directors and that permit
only the remaining directors to fill any vacancies on the Board of Directors,
have the effect of making it more difficult for shareholders to change the composition of the Board
of Directors. As a result, at least two annual meetings of shareholders will be required for the shareholders to change a majority of the directors,
whether or not a change in the Board of Directors would be beneficial and
whether or not a majority of shareholders believe that such a change would be
desirable. Our articles of
incorporation provide that shareholders may not cumulate their votes in the
election of directors.
Our articles of incorporation provide
that we will have the number of directors as may be fixed from time to time by
our Board of Directors, provided that the number fixed by the Board may not be
less than five nor more than 15. Southern Missouri Bancorp
currently has nine directors. Our articles of incorporation also
provide that vacancies in the Board of Directors may be filled by a majority
vote of the directors then in office, though less than a quorum, and any
director so chosen shall hold office until the next election of directors by
shareholders. Our articles of incorporation further provide that any
director or the entire Board of Directors may be removed from office only for
cause and only upon the affirmative vote of the holders of least 80% of the
total votes to which all of the shares then entitled to vote at a meeting of
shareholders called for an election of directors are entitled, provided that if
less than the entire Board is to be removed, no individual director may be
removed the votes cast against his or her removal would be sufficient to elect
him or her as a director if cumulatively voted in an election of
directors.
The foregoing description of our Board
of Directors does not apply with respect to directors that may be elected by the
holders of the Series A Preferred Stock in the event we do not pay dividends on
the Series A Preferred Stock for six or more dividend periods. See
“—Series A Preferred Stock—Voting Rights.”
Special
Meetings of
Shareholders. Our bylaws provide that special meetings of
shareholders may only be called by our Board of Directors.
Action by
Shareholders Without A
Meeting. The
Missouri General and Business Corporation Law provides that any action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting only if consents in writing setting forth the action are signed by all
of the shareholders entitled to vote.
Business
Combinations With Certain Persons. Our articles of incorporation provide
that certain business combinations (for example, mergers, share exchanges,
significant asset sales and significant stock issuances) involving “interested
shareholders” of Southern Missouri Bancorp require, in addition to any vote
required by law, the approval of (i) the holders of at least 80% of the voting
power of the outstanding shares of stock entitled to vote generally in the
election of directors, voting together as a single class, and (ii) the holders
of at least a majority of the voting power of the outstanding shares of such
stock not beneficially owned by the interested shareholder and its affiliates
and associates, voting together as a single class, unless a majority of the
whole Board has approved a memorandum of understanding with the interested
shareholder with respect to, or on substantially the same terms as, the proposed
business combination prior to the time the interested shareholder became an
interested shareholder. An “interested shareholder” for purposes of this
provision generally means a person who is a 10% or greater shareholder of
Southern Missouri Bancorp or who is an affiliate or associate of Southern
Missouri Bancorp and at any time within the prior two years was a 5% or greater
shareholder of Southern Missouri Bancorp.
The Missouri General and Business
Corporation Law contains a business combination statute that prohibits a
business combination between a corporation and an interested shareholder (one
who beneficially owns 20% or more of the voting power) for a period of five
years after the interested shareholder first becomes an interested shareholder,
unless the transaction has been approved by the board of directors before the
interested shareholder became an interested shareholder or the corporation has
exempted itself from the statute pursuant to a provision in its articles of
incorporation. After the five-year period has elapsed, a corporation subject to
the statute may not consummate a business combination with an interested
shareholder unless the transaction has been approved by a majority of the votes
entitled to be cast other than shares owned by the interested shareholder and
its affiliates
and associates. This approval
requirement need not be met if certain fair price and terms criteria have been
satisfied. We are subject to the Missouri business combination
statute.
Amendment of
Articles of Incorporation and
Bylaws. Our articles of
incorporation generally may be amended upon approval by our Board of Directors
and the holders of a majority of the outstanding shares of our common
stock. The amendment of the provisions of our articles of
incorporation pertaining to certain business combinations, as described above
under “—Business Combinations with Certain Persons,” also requires the approval
of the holders of at least 80% of the voting power of the outstanding shares of
stock entitled to vote generally in the election of directors, voting as a
single class, and the holders of at least a majority of the voting power of the
outstanding shares of such stock not beneficially owned by any interested
shareholder or its affiliates and associates, voting together as a single
class. In addition, an amendment of the provisions of our articles of
incorporation relating to the number, classification, election and removal of
directors also requires the affirmative vote of the holders of at least 80% of
the total votes to which all of the shares then entitled to vote at a meeting of
shareholders called for an election of directors are entitled, unless the
amendment has been approved by our Board of Directors by a 66 2/3%
vote.
Our bylaws may be amended either by our
Board of Directors, by a vote of two-thirds of the Board, or by our
shareholders, by the vote of the holders of at least 80% of the voting power of
the outstanding shares of capital stock entitled to vote generally in the
election of directors, voting together as a single class.
Advance Notice
Provisions. Our bylaws provide that we must receive
written notice of any shareholder proposal for business at an annual
meeting of shareholders not less than 90 days or more
than 120 days before the anniversary of the preceding year’s annual
meeting. If the date of the current year annual meeting is advanced by more than
20 days or delayed by more than 60 days from the anniversary date of
the preceding year’s annual meeting, we must receive written notice of the proposal no earlier than the close of business on
the 120th day prior to the date of the annual meeting and no later than the
close of business on the later of the 90th day prior to the annual meeting or
the 10th day following the day on which notice of the date of the meeting is mailed or public
announcement of the date of the meeting date is first made, whichever
occurs first.
Our bylaws also provide that we must
receive written notice of any shareholder director nomination for a meeting of
shareholders not less than 90 days or more
than 120 days before the date of the meeting. If, however, less than
100 days’ notice or prior public announcement of the date of the meeting is given or
made to shareholders, we must receive notice of the nomination no later than
the tenth day following the day on which notice of the date of the meeting is mailed or public announcement of the date of the meeting date is first made, whichever
occurs first.
Transfer
Agent
The transfer agent and registrar for our
common stock is Registrar
& Transfer Company.
SELLING
SECURITYHOLDERS
The selling securityholders may include
(i) Treasury, which acquired the warrant and all of the shares of Series A
Preferred Stock from us on December 5, 2008 in a private placement exempt from
the registration requirements of the Securities Act of 1933, and (ii) any other
person or persons holding any portion of the warrant and any shares of our
common stock issued upon exercise of the warrant to whom Treasury has
transferred its registration rights under the terms of the securities purchase
agreement between us and Treasury. Treasury is required to notify us
in writing of any such transfer of its registration rights within ten days after
the transfer, including the name and address of the transferee and the number
and type of securities with respect to which the registration rights have been
assigned. As of the date of this prospectus, Treasury has not
notified us of any such transfer. Accordingly, we believe that
Treasury currently holds record and beneficial ownership of the entire amount of
the warrant (none of which has been exercised) covered by this
prospectus.
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a
ten-year warrant to purchase 114,326 shares of our common stock at an
exercise price of $12.53 per share, subject to adjustment as described
under “Description of Warrant”; and
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the
114,326 shares of our common stock issuable upon exercise of the warrant
(subject to adjustment as described under “Description of Warrant”), which
shares, if issued, would represent ownership of approximately 5.2% of the
shares of our common stock outstanding as of December 29, 2008
(including the shares issuable upon exercise of the warrant in total
shares outstanding).
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For
purposes of this prospectus, we have assumed that, after completion of the
offering, none of the securities covered by this prospectus will be held by the
selling securityholders.
We do not
know when or in what amounts the selling securityholders may offer the
securities for sale. The selling securityholders might not sell any or all of
the securities offered by this prospectus. Because the selling securityholders
may offer all or some of the securities pursuant to this offering, and because,
to our knowledge, no sale of any of the securities is currently subject to any
agreements, arrangements or understandings, we cannot estimate the number of the
securities that will be held by the selling securityholders after completion of
the offering.
The only
potential selling securityholder whose identity we are currently aware of is
Treasury. Other than with respect to Treasury’s acquisition of the
Series A Preferred Stock and warrant from us, Treasury has not had a material
relationship with us.
Information
about the selling securityholders may change over time and changed information
will be set forth in supplements to this prospectus if and when
necessary.
The selling securityholders may sell all or a portion of the
securities beneficially owned by them and offered
by this
prospectus from time to
time directly or through one or more underwriters, broker-dealers or agents. If securities
are sold through
underwriters or
broker-dealers, the selling
securityholders will be
responsible for underwriting discounts or commissions or agent’s commissions. The securities may be sold in one or more transactions
at fixed prices, at prevailing market prices at the time of the sale, at varying prices
determined at the time of sale, or at negotiated prices. These sales may be
effected in transactions, which may involve crosses or block transactions. The
selling
securityholders may use any
one or more of the following methods when selling
shares:
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on
any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of
sale;
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in
the over-the-counter market;
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in
transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
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through
the writing of options, whether such options are listed on an options
exchange or otherwise;
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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privately
negotiated transactions;
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settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
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broker-dealers
may agree with the selling securityholders to sell a specified number of
such shares at a stipulated price per
share;
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a
combination of any such methods of sale;
and
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any
other method permitted pursuant to applicable
law.
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The selling securityholders may also sell securities under Rule 144 under the Securities
Act of 1933, if available, rather than under this
prospectus.
Broker-dealers engaged by the selling securityholders may arrange for other brokers-dealers
to participate in sales. If the selling securityholders effect such transactions by selling
securities to or through underwriters,
broker-dealers or agents, such underwriters, broker-dealers or agents may
receive commissions in the form of discounts, concessions or commissions from
the selling
securityholders or
commissions from purchasers of the securities for whom they may act as agent or to
whom they may sell as principal. These discounts, concessions or
commissions as to any particular underwriter, broker-dealer or agent will be in
amounts to be negotiated, which are not expected to be in excess of those
customary in the types of transactions involved.
In connection with sales of securities, the selling securityholders may enter into hedging transactions
with broker-dealers or other financial institutions, which may in turn engage in short
sales of the securities
in the course of hedging in
positions they assume. The selling securityholders may also sell securities short and if such short sale shall take
place after the date that the registration statement of which this prospectus is a part
is declared effective by
the SEC, the selling securityholders may deliver securities covered by this prospectus to close out
short positions and to return borrowed shares in connection with such short
sales. The selling securityholders may also loan or pledge securities to broker-dealers that in turn may sell
such shares. The selling
securityholders may also
enter into option or other transactions with broker-dealers or other financial
institutions or the creation of one or more derivative securities which
require the delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
The selling securityholders may pledge or grant a security
interest in some or all of the securities owned by them and, if they default in
the performance of their secured obligations, the pledgees or secured parties may offer and sell the
securities from time to time pursuant to this
prospectus or any amendment or supplement to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act of 1933, amending, if necessary, the
identification of selling securityholders to include the pledgee, transferee or
other successors in interest as selling securityholders under this prospectus. The
selling
securityholders also may
transfer and donate the securities in other circumstances in which case the transferees, donees,
pledgees or other successors in interest will be the selling beneficial owners
for purposes of this prospectus.
The selling securityholders and any broker-dealer participating in
the distribution of the securities may be deemed to be “underwriters” within the meaning of the Securities
Act of 1933, and any commission paid, or any
discounts or concessions allowed to, any such broker-dealer may be deemed to be
underwriting commissions or discounts under the Securities Act of 1933. At the time a particular offering of
securities is made, a prospectus supplement, if
required, will be distributed which will set forth (i) the name of each
such selling
securityholder and of the
participating broker-dealer(s), (ii) the number of securities involved, (iii) the price at which
such securities
were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, and
(v) any other facts material to the
transaction.
The aggregate proceeds to the selling securityholders from the
sale of the securities will be the purchase price of the securities
less discounts and commissions, if any.
Under the securities laws of some
states, the securities covered by this prospectus may be sold in such states only through registered or licensed
brokers or dealers. In addition, in some states the securities may not be sold unless such shares have
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied
with.
There can be no assurance that any
selling securityholder will sell any or all of the
securities registered pursuant to the registration
statement of which this prospectus forms a part.
If a selling securityholder uses this prospectus for any sale of securities, it will be subject to the prospectus
delivery requirements of the Securities Act of 1933. The selling securityholders and any other person participating in
such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934 and the
rules and regulations thereunder, including, without limitation, Regulation M
under the Exchange Act, which may limit the
timing of purchases and sales of any of the securities by the selling securityholders and any other participating person. Regulation M
may also restrict the ability of any person engaged in the distribution of
securities to engage in market-making activities
with respect to such
securities. All of the
foregoing may affect the marketability of the securities covered by this prospectus
and the ability of any
person or entity to engage in market-making activities with respect to
such securities.
Pursuant to the securities purchase
agreement between us and Treasury, we will pay substantially all expenses of the registration of the securities covered by this
prospectus, including,
without limitation, SEC
filing fees and expenses of
compliance with state securities or “blue sky” laws; provided, however, that a selling securityholder will pay all underwriting discounts and selling commissions, if
any. We will indemnify the selling securityholders against liabilities, including some
liabilities under the Securities Act of 1933, in accordance with the securities purchase agreement between us
and Treasury, or
the selling securityholders will be entitled to contribution.
We have agreed
under the securities purchase agreement between us and Treasury to cause such of
our directors and senior executive officers to execute customary lock-up
agreements in such form and
for such time period up to 90 days as may be requested by a managing underwriter
with respect to an underwritten offering of securities covered by this
prospectus.
The validity of the securities offered
by this prospectus has been passed upon for us by Silver, Freedman & Taff, L.L.P,
Washington, D.C.
EXPERTS
The consolidated financial statements of
Southern Missouri Bancorp,
Inc. as of June 30, 2008 and 2007, and for each of the years in the three
year period ended June
30, 2008, and management’s assessment of the
effectiveness of internal control over financial reporting as of June 30, 2008, have been incorporated by reference
herein in reliance upon the report of BKD, LLP, independent registered public
accounting firm, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing.
114,326
Shares of Common Stock and a Warrant to Purchase Such
Shares
Southern
Missouri Bancorp, Inc.
_______________________________
PROSPECTUS
___________________________
,
2009
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated expenses in connection with the
issuance and distribution of the securities covered by the registration
statement of which this prospectus is a part. Southern Missouri
Bancorp, Inc. (the “Registrant”) will bear all of these expenses.
|
Registration
fee under the Securities Act
|
|
$ |
478 |
|
|
Legal
fees and expenses*
|
|
$ |
50,000 |
|
|
Accounting
fees and expenses*
|
|
$ |
15,000 |
|
|
Printing
and other miscellaneous fees and expenses*
|
|
$ |
10,000 |
|
|
Total
|
|
$ |
75,478 |
|
*Estimated
solely for the purpose of this Item. Actual expenses may be more or
less.
Item
15. Indemnification of Officers and Directors
Section
351.355 of the Missouri General and Business Corporation Law provides for
permissible and mandatory indemnification of directors, officers, employees and
agents in certain circumstances. Section 351.355.1 provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation), by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person’s conduct was unlawful. Section 351.355.1 further provides that the
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person’s conduct was
unlawful.
Section
351.355.2 provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another entity against expenses (including attorneys’ fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of the person’s duties to
the corporation unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section
351.355.3 provides that except to the extent otherwise provided in the
corporation’s articles of incorporation or bylaws, to the extent that a
director, officer, employee or agent of the corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Sections 351.355.1 and 351.355.2, or in defense of any claim, issue or matter
therein, that person shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection
therewith.
Section
351.355.4 provides that any indemnification under Sections 351.355.1 and
351.355.2 (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination
that
indemnification of the director, officer, employee or agent is proper in the
circumstances because the person has met the applicable standard of conduct set
forth in Section 351.355.
Section
351.355.5 provides that expenses incurred in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of the action, suit or
proceeding upon receipt of an undertaking to repay the amount if it is
ultimately determined that the person is not entitled to be indemnified by the
corporation.
Section
351.355.6 provides that indemnification and advancement of expenses provided
under Section 351.355 are not exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
corporation’s articles of incorporation or bylaws, or any agreement, vote of
shareholders or disinterested directors or otherwise. Section
351.355.8 provides that a corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person’s status as such, whether or not the corporation would have the power to
indemnify such person against such liability under Section 351.355.
Article IX of the Registrant’s
articles of incorporation provides that the Registrant shall indemnify any
present or former director or executive officer of the Registrant or any
subsidiary of the Registrant against any and all expenses, including attorneys'
fees), judgments, fines and amounts paid in settlement and reasonably incurred
by such person in connection with any threatened, pending or completed civil,
criminal, administrative or investigative action, suit, proceeding or claim
(including any action by or in the right of the Registrant or a subsidiary) by
reason of the fact that such person is or was serving in such capacity;
provided, however, that no such person shall be entitled to any indemnification
pursuant to Article IX on account of (i) conduct which is finally adjudged to
have been knowingly fraudulent or deliberately dishonest or to have constituted
willful misconduct, or (ii) an accounting for profits pursuant to Section 16(b)
of the Securities Exchange Act of 1934, as amended.
Item
16. Exhibits
The
following exhibits are filed with or incorporated by reference into this
registration statement:
|
Exhibit
Number
|
|
Description
of Document
|
|
|
|
|
|
3.1
|
|
Articles
of Incorporation of the Registrant(1)
|
|
|
|
|
|
3.2
|
|
Certificate
of Designation containing the terms of the Registrant’s Fixed Rate
Cumulative Perpetual Preferred Stock, Series A(2)
|
|
|
|
|
|
3.3
|
|
Bylaws
of the Registrant(3)
|
|
|
|
|
|
4.1
|
|
Warrant
to purchase shares of the Registrant’s common stock dated December 5,
2008(2)
|
|
|
|
|
|
4.2
|
|
Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated December 5, 2008 between the Registrant and the United
States Department of the Treasury(2)
|
|
|
|
|
|
5.1
|
|
Opinion
of Silver, Freedman & Taff, L.L.P.
|
|
|
|
|
|
23.1
|
|
Consent
of BKD, LLP
|
|
|
|
|
|
23.2
|
|
Consent
of Silver, Freedman & Taff, L.L.P. (contained in its opinion filed as
Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power
of attorney (contained in the signature page of the registration
statement)
|
|
________________
|
|
|
(1)
|
Attached
as exhibit to the Registrant’s Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1999.
|
|
|
(2)
|
Attached
as an exhibit to the Current Report on Form 8-K filed by the Registrant on
December 9, 2008 and incorporated herein by
reference.
|
|
|
(3)
|
Attached
as an exhibit to the Current Report on Form 8-K filed by the Registrant on
December 6, 2007 and incorporated herein by
reference.
|
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; 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 (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the
information required to be included in a post-effective amendment by those
paragraphs 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, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration
statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned Registrant undertakes that in a primary offering of securities of an
undersigned Registrant pursuant to this registration statement, regardless of
the
underwriting
method used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of an undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(6) 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
section 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.
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 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-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized in the City of
Poplar Bluff, State of Missouri, on the 5th day of January,
2009.
| |
SOUTHERN MISSOURI BANCORP,
INC. |
|
| |
|
|
|
|
|
By:
|
/s/ Greg
A. Steffens |
|
| |
|
Greg
A. Steffens |
|
| |
|
President |
|
| |
|
(Duly
Authorized Representative) |
|
POWER
OF ATTORNEY
Each
person whose signature appears below appoints Greg A. Steffens as his or
her true and lawful attorney-in-fact and agent, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and any Registration Statement (including any amendment thereto) for this
offering that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he or she might or
would do in person, hereby ratifying and confirming all that said attorney-in
fact and agent may lawfully do or cause to be done by virtue
hereof.
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.
| /s/
Greg A. Steffens |
|
/s/
Samuel H. Smith |
|
Greg
A. Steffens
|
|
Samuel
H. Smith
|
|
President
and Director
(Principal
Executive, Financial and Accounting Officer)
|
|
Chairman
of the Board
|
|
|
|
|
|
Date:
January 5, 2009
|
|
Date:
January 5, 2009
|
|
|
|
|
| /s/
Douglas Bagby |
|
|
|
Douglas
Bagby
|
|
Ronnie
D. Black
|
|
Director
|
|
Director
|
|
|
|
|
|
Date:
January 5, 2009
|
|
Date:
|
|
|
|
|
|
|
|
/s/
Charles R. Love |
|
Rebecca
McLane Brooks
|
|
Charles
R. Love
|
|
Director
|
|
Director
|
|
|
|
|
|
Date:
|
|
Date:
January 5, 2009
|
|
|
|
|
|
|
|
|
|
Charles
R. Moffitt
|
|
Dennis
Robison
|
|
Director
|
|
Director
|
|
|
|
|
|
Date:
|
|
Date:
|
|
|
|
|
| /s/ Sammy
A. Schalk |
|
|
|
Sammy
A. Schalk
|
|
|
|
Director
|
|
|
|
|
|
|
|
Date:
January 5, 2009
|
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
of Document
|
|
|
|
|
|
3.1
|
|
Articles
of Incorporation of the Registrant(1)
|
|
|
|
|
|
3.2
|
|
Certificate
of Designation containing the terms of the Registrant’s Fixed Rate
Cumulative Perpetual Preferred Stock, Series A(2)
|
|
|
|
|
|
3.3
|
|
Bylaws
of the Registrant(3)
|
|
|
|
|
|
4.1
|
|
Warrant
to purchase shares of the Registrant’s common stock dated December 5,
2008(2)
|
|
|
|
|
|
4.2
|
|
Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated December 5, 2008 between the Registrant and the United
States Department of the Treasury(2)
|
|
|
|
|
|
5.1
|
|
Opinion
of Silver, Freedman & Taff, L.L.P.
|
|
|
|
|
|
23.1
|
|
Consent
of BKD, LLP
|
|
|
|
|
|
23.2
|
|
Consent
of Silver, Freedman & Taff, L.L.P. (contained in its opinion filed as
Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power
of attorney (contained in the signature page of the registration
statement)
|
|
________________
|
|
|
(1)
|
Attached
as exhibit to the Registrant’s Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1999.
|
|
|
(2)
|
Attached
as an exhibit to the Current Report on Form 8-K filed by the Registrant on
December 9, 2008 and incorporated herein by
reference.
|
|
|
(3)
|
Attached
as an exhibit to the Current Report on Form 8-K filed by the Registrant on
December 6, 2007 and incorporated herein by
reference.
|