Registration No. 333-______
As filed with the Securities and Exchange Commission on November 26, 2003
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Atlantic Liberty Financial Corp.
(Exact Name of Registrant as Specified in its Charter)
Delaware 16-1615014
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
186 Montague Street
Brooklyn, New York 11201
(Address of Principal Executive Offices)
Barry M. Donohue
186 Montague Street
Brooklyn, New York 11201
(Name and Address of Agent for Service)
Atlantic Liberty Financial Corp.
2003 Incentive Stock Benefit Plan
(Full Title of the Plan)
Copies to:
Barry M. Donohue Alan Schick, Esquire
President and Chief Executive Officer Luse Gorman Pomerenk & Schick, P.C.
Atlantic Liberty Financial Corp. 5335 Wisconsin Ave., N.W., Suite 400
186 Montague Street Washington, D.C. 20015
Brooklyn, New York 11201 (202) 274-2000
(718) 855-3555
(Name, Address and Telephone
Number of Agent for Service)
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. :
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered (1) Per Share Offering Price Fee
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Common stock, par value $0.01 per share 256,648(3) $19.50(2) $5,004,636 $425.00
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Atlantic Liberty Financial Corp. 2003 Incentive Stock Benefit Plan (the
"Stock Benefit Plan") as a result of a stock split, stock dividend or
similar adjustment of the outstanding common stock of Atlantic Liberty
Financial Corp. pursuant to 17 C.F.R. Section 230.416(a).
(2) Determined by reference to the fair market value of the common stock on
November 24, 2003, pursuant to 17 C.F.R. Section 230.457(c).
(3) Represents the number of shares of common stock currently reserved for
issuance under the Stock Benefit Plan for any future stock awards or stock
options.
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
PART I.
Items 1 and 2. Plan Information and Registrant Information and
Employee Plan Annual Information
The documents containing the information specified in Part I of Form S-8
have been or will be sent or given to participants in the Stock Benefit Plan as
specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed by Atlantic
Liberty Financial Corp. (the "Company") with the Commission are hereby
incorporated by reference in this Registration Statement:
a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
March 31, 2003 (Commission File No. 000-49967), filed with the Commission on
June 27, 2003 pursuant to Section 13(a) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act");
b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the year covered by the Annual Report on Form 10-KSB referred to in (a)
above; and
c) The description of the Company's common stock contained in the
Registration Statement on Form 8-A filed with the Commission on August 12, 2003
(Commission File No. 000-49967).
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All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
Annual Report on Form 10-KSB to the extent that a statement contained herein or
therein or in any other subsequently filed document which also is, or is deemed
to be, incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and the Annual Report on Form 10-KSB.
The Company shall furnish without charge to each person to whom the Annual
Report is delivered, on the written or oral request of such person, a copy of
any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to William
M. Gilfillan, Chief Financial Officer, Atlantic Liberty Financial Corp., 186
Montague Street, Brooklyn, New York, telephone number (718) 855-3555.
All information appearing in this Registration Statement and the Annual
Report on Form 10-KSB is qualified in its entirety by the detailed information,
including financial statements, appearing in the documents incorporated herein
or therein by reference.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Articles TENTH and ELEVENTH of the Certificate of Incorporation of Atlantic
Liberty Financial Corp. (for purposes of this Item 6, the "Corporation") set
forth circumstances under which directors, officers, employees and agents of the
Company may be insured or indemnified against liability which they incur in
their capacities as such:
TENTH:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent or in any other capacity while serving as a Director, Officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
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B. The right to indemnification conferred in Section A of this Article
TENTH shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a Director or Officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections A and B of this Article TENTH shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a Director, Officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in
full by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty (20) days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, Officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
ELEVENTH:
A Director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
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duty as a Director, except for liability (i) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the Director derived an improper
personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of Directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
Director of the Corporation existing at the time of such repeal or modification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing
Exhibit Number Document or Exhibit No. attached
hereto
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Exhibit 5
10 Atlantic Liberty Financial Corp. 2003 Incentive Stock Benefit Plan **
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Radics & Co., LLC Exhibit 23.2
24 Power of Attorney Contained on Signature Page
* Incorporated by reference to Exhibit 4 to the Registration Statement on Form
SB-2 (Commission File No. 333-90828), originally filed by the Company under the
Securities Act of 1933 with the Commission on June 20, 2002, and all amendments
or reports filed for the purpose of updating such description.
** Incorporated by reference to the Company's Proxy Statement relating to the
Company's November 19, 2003 special meeting of stockholders, filed by the
Company with the Commission on October 14, 2003.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement;
2. That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
Plan;
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4. That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
5. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in Brooklyn, New York, on this 24th day
of November, 2003.
ATLANTIC LIBERTY FINANCIAL CORP.
By: /s/ Barry M. Donohue
--------------------------
Barry M. Donohue
President and
Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Atlantic Liberty Financial
Corp. (the "Company") hereby severally constitute and appoint Barry M. Donohue
as our true and lawful attorney and agent, to do any and all things in our names
in the capacities indicated below which said Barry M. Donohue may deem necessary
or advisable to enable the Company to comply with the Securities Act of 1933,
and any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration of common stock underlying the
Atlantic Liberty Financial Corp. 2003 Incentive Stock Benefit Plan, including
specifically, but not limited to, power and authority to sign for us in our
names in the capacities indicated below the registration statement and any and
all amendments (including post-effective amendments) thereto; and we hereby
approve, ratify and confirm all that said Barry M. Donohue shall do or cause to
be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signatures Title Date
/s/ Barry M. Donohue President and Chief Executive November 24, 2003
--------------------------- Officer (Principal Executive
Barry M. Donohue Officer)
/s/ William M. Gilfillan Executive Vice President and November 24, 2003
--------------------------- Chief Financial Officer
William M. Gilfillan (Principal Financial and
Accounting Officer)
/s/ Richard T. Arkwright Chairman of the Board November 24, 2003
---------------------------
Richard T. Arkwright
/s/ Hon. Guy J. Mangano Director November 24, 2003
---------------------------
Hon. Guy J. Mangano
/s/ Thomas M. DeMartino Director November 24, 2003
---------------------------
Thomas M. DeMartino
/s/ George M. Spanakos Director November 24, 2003
---------------------------
George M. Spanakos
EXHIBIT INDEX
Exhibit Number Description
4 Form of Common Stock Certificate (Incorporated by reference to Exhibit 4 to
the Registration Statement on Form SB-2 (Commission File No. 333-90828),
originally filed by the Company under the Securities Act of 1933 with the
Commission on June 20, 2002, and all amendments or reports filed for the
purpose of updating such description).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C.
10 Atlantic Liberty Financial Corp. 2003 Incentive Stock Benefit Plan*
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (contained in the opinion
included as Exhibit 5).
23.2 Consent of Radics & Co., LLC.
24 Power of Attorney (contained in the signature page to this Registration
Statement).
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* Incorporated by reference to the Company's Proxy Statement relating to the
Company's November 19, 2003 special meeting of stockholders, filed by the
Company with the Commission on October 14, 2003.
Exhibit 5
[LETTERHEAD OF LUSE GORMAN POMERENK & SCHICK]
(202) 274-2000
November 24, 2003
Board of Directors
Atlantic Liberty Financial Corp.
186 Montague Street
Brooklyn, New York 11201
Re: Atlantic Liberty Financial Corp.
Registration Statement on Form S-8
Gentlemen:
You have requested the opinion of this firm as to certain matters in
connection with the registration of common stock, par value $0.01 per share (the
"Common Stock"), of Atlantic Liberty Financial Corp. (the "Company") issued
pursuant to the Atlantic Liberty Financial Corp. 2003 Incentive Stock Benefit
Plan (the "Plan").
In rendering the opinion expressed herein, we have reviewed the Certificate
of Incorporation of the Company, the Plan, the Company's Registration Statement
on Form S-8 (the "Form S-8"), as well as applicable statutes and regulations
governing the Company. We have assumed the authenticity, accuracy and
completeness of all documents in connection with the opinion expressed herein.
We have also assumed the legal capacity and genuineness of the signatures of
persons signing all documents in connection with which the opinions expressed
herein are rendered.
Based on the foregoing, we are of the following opinion:
At the time of effectiveness of the Form S-8, the Common Stock of the
Company, when issued in accordance with the terms and conditions of the Plan,
will be legally issued, fully paid and non-assessable.
This opinion has been prepared solely for the use of the Company in
connection with the preparation and filing of the Form S-8, and should not be
used for any other purpose or relied upon by any other person without the prior
written consent of this firm. We hereby consent to the use of this opinion in
the Form S-8.
Very truly yours,
/s/ Luse Gorman Pomerenk & Schick
Luse Gorman Pomerenk & Schick,
A Professional Corporation
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Atlantic Liberty Financial Corp.
We consent to the incorporation by reference of our report, dated April 28, 2003
with respect to the March 31, 2003 consolidated financial statements of Atlantic
Liberty Financial Corp. included in the annual report on Form 10-KSB, in this
Registration Statement (No. 333-90828) on Form S-8 pertaining to the Atlantic
Liberty Financial Corp. 2003 Incentive Stock Benefit Plan.
/s/ Radics & Co.
Radics & Co.
Pine Brook, New Jersey
November 24, 2003