As filed with the Securities and Exchange Commission on April 28, 2004
Registration No. 333-_______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST BANCTRUST CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 37-140661
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
206 South Central Avenue
Paris, Illinois 61944
(Address of principal executive offices, including zip code)
FIRST BANCTRUST CORPORATION
2002 STOCK OPTION PLAN
(Full title of the plan)
WITH A COPY TO:
TERRY J. HOWARD TIMOTHY E. KRAEPEL
PRESIDENT AND CHIEF EXECUTIVE OFFICER HOWARD & HOWARD ATTORNEYS, P.C.
FIRST BANCTRUST CORPORATION THE PINEHURST OFFICE CENTER, SUITE 101
206 SOUTH CENTRAL AVENUE 39400 WOODWARD AVENUE
PARIS, ILLINOIS 61944 BLOOMFIELD HILLS, MICHIGAN 48304-5151
(Name and address of agent for service) (248) 645-1483
(217) 465-6381
(Telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum
to be Offering price aggregate
registered per share offering price Amount of
Title of Securities to be Registered (1) (2) (2) registration fee
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Common Stock, par value $0.01 per share 152,087 $26.49 $4,028,785 $510.45
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(1) Plus, pursuant to Rule 416, an indeterminate number of additional shares as
may be issuable in the event of an adjustment as a result of an increase in the
number of issued shares of Registrant's Common Stock resulting from a
subdivision of such shares, the payment of stock dividends or certain other
capital adjustments as provided in the above-referenced Stock Option Plan.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) and (h) based on the $26.49 average of the high and
low prices of Registrant's Common Stock as reported on the Nasdaq SmallCap
Market on April 23, 2004.
PART I
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended ("Securities
Act"), and the Note to Part I on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant are incorporated in this
Registration Statement by reference:
(1) the Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2003;
(2) the Registrant's Proxy Statement dated March 19, 2004;
(3) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since
December 31, 2003, except for information furnished under Item 9 or Item 12 of
Form 8-K, which is not deemed filed and not incorporated herein by reference;
and
(4) the description of Registrant's Common Stock, $0.01 par value
contained in Registrant's Registration Statement on Form 8-A filed with the
Commission on April 11, 2001 under the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents, except for information furnished under Item 9 or Item 12 of Form 8-K,
which is not deemed filed and not incorporated herein by reference.
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 10 of the Registrant's Certificate of Incorporation provides as
follows:
Article 10. Indemnification. The Corporation shall indemnify its
directors, officers, employees, agents and former directors, officers, employees
and agents, and any other persons serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, association,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees, judgments, fines and amounts paid in settlement)
incurred in connection with any pending or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, with
respect to which such director, officer, employee, agent or other person is a
party, or is threatened to be made a party, to the full extent permitted by the
General Corporation Law of the State of Delaware, provided, however, that the
Corporation shall not be liable for any amounts which may be due to any person
in connection with a settlement of any action, suit or proceeding effected
without its prior written consent or any action, suit or proceeding initiated by
any person seeking indemnification hereunder without its prior written consent.
The indemnification provided herein (i) shall not be deemed exclusive of any
other right to which any person seeking indemnification may be entitled under
any bylaw, agreement or vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
any other capacity, and (ii) shall inure to the benefit of the heirs, executors
and administrators of any such person. The Corporation shall have the power, but
shall not be obligated, to purchase and maintain insurance on behalf of any
person or persons enumerated above against any liability asserted against or
incurred by them or any of them arising out of their status as corporate
directors, officers, employees, or agents whether or not the Corporation would
have the power to indemnify them against such liability under the provisions of
this Article 10.
Article VI of the Registrant's Amended and Restated Bylaws provides as
follows:
ARTICLE VI. INDEMNIFICATION, ETC. OF DIRECTORS, OFFICERS AND EMPLOYEES
6.1 Indemnification. The Corporation shall provide indemnification to
its directors, officers, employees, agents and former directors, officers,
employees and agents and to others in accordance with the Corporation's
Certificate of Incorporation.
6.2 Advancement of Expenses. Reasonable expenses (including attorneys'
fees) incurred by a director, officer or employee of the Corporation in
defending any civil, criminal,
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administrative or investigative action, suit or proceeding described in Section
6.1 may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors only upon
receipt of an undertaking by or on behalf of such person to repay such amount if
it shall ultimately be determined that the person is not entitled to be
indemnified by the Corporation.
6.3 Other Rights and Remedies. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Corporation's Certificate of
Incorporation, any agreement, vote of stockholders or disinterested directors or
otherwise, both as to actions in their official capacity and as to actions in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer or employee and shall inure to the
benefit of the heirs, executors and administrators of such person.
6.4 Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer or employee of the Corporation, or is or was serving
at the request of the Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against him or incurred by him in any such capacity or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of its
Certificate of Incorporation or this Article VI.
6.5 Modification. The duties of the Corporation to indemnify and to
advance expenses to a director, officer or employee provided in this Article VI
shall be in the nature of a contract between the Corporation and each such
person, and no amendment or repeal of any provision of this Article VI shall
alter, to the detriment of such person, the right of such person to the advance
of expenses or indemnification related to a claim based on an act or failure to
act which took place prior to such amendment or repeal.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits filed herewith or incorporated by reference herein are set
forth in the Exhibit index filed as part of this Registration Statement.
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:
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(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;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
period reports filed by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes 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 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to 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 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
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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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Paris, State of Illinois, on April 19, 2004.
FIRST BANCTRUST CORPORATION
(Registrant)
By: /s/Terry J. Howard
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Terry J. Howard
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Terry J. Howard and
Ellen M. Litteral, and each of them, as such person's true and lawful attorney
to execute in the name of each such person, and to file, any amendments to this
registration statement that such attorney may deem necessary or desirable to
enable the Registrant to comply with the Securities Act of 1933, as amended, and
any rules, regulations, and requirements of the Securities and Exchange
Commission with respect thereto, in connection with the registration of the
shares of Common Stock, which amendments may make such changes in such
Registration Statement as the above-named attorney(s) deems appropriate, and to
comply with the undertakings of the Registrant made in connection with this
Registration Statement; and each of the undersigned hereby ratifies all that
said attorney(s) will 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.
Signature Title Date
-------------------------------------------- ------------------------------------------ --------------
/s/Terry J. Howard President, Chief Executive Officer April 19, 2004
-------------------------------------------- and Director (Principal Executive Officer)
Terry J. Howard and Director
/s/Ellen M. Litteral Chief Financial Officer and Treasurer April 19, 2004
-------------------------------------------- (Principal Financial Officer)
Ellen M. Litteral
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/s/Terry T. Hutchison Chairman of the Board of Directors April 19, 2004
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Terry T. Hutchison
/s/Joseph R. Schroeder Director April 19, 2004
--------------------------------------------
Joseph R. Schroeder
/s/Vick N. Bowyer Director April 19, 2004
--------------------------------------------
Vick N. Bowyer
/s/James D. Motley Director April 19, 2004
--------------------------------------------
James D. Motley
/s/John W. Welborn Director April 19, 2004
--------------------------------------------
John W. Welborn
/s/David W. Dick Director April 19, 2004
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David W. Dick
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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5 Opinion of Howard & Howard Attorneys, P.C.
23.1 Consent of BKD LLP.
23.2 Consent of Howard & Howard Attorneys, P.C. (contained in their
opinion filed as Exhibit 5).
24 Powers of Attorney (contained on the signature pages hereto).
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