s8-08.htm
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As
filed with the Securities and Exchange Commission on November 12,
2008
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Registration
Statement No. 333-______
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
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FORM
S-8
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REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SECURITY
FEDERAL CORPORATION
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(Exact
name of registrant as specified in its charter)
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South
Carolina
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57-08580504
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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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238
Richland Avenue West, Aiken, South Carolina
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29801
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(Address
of principal executive offices)
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(Zip
code)
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Security
Federal Corporation 2008 Equity Incentive Plan
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(Full
title of the plan)
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Timothy
W. Simmons
President
and Chief Executive Officer
Security
Federal Corporation
238
Richland Avenue West
Aiken,
South Carolina 29801
(803)
641-3000
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John
F. Breyer, Jr., Esquire
Breyer
& Associates PC
8180
Greensboro Drive
Suite
785
McLean,
Virginia 22102
(703)
883-1100
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(Name,
address and telephone number of agent for service)
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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.
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Large
accelerated filer
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9
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Accelerated
filer
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9
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Non-accelerated
filer
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9
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Smaller
reporting company
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CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be registered
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Proposed
maximum offering price per share
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Proposed
maximum aggregate offering price
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Amount
of registration fee
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Common
stock,
$0.01
par value per share
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50,000(1)
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$20.00(2)
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$1,000,000
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$40.00
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(1)
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Together
with an indeterminate number of additional shares which may be necessary
to adjust the number of shares reserved for issuance pursuant to the
Security Federal Corporation 2008 Equity Incentive Plan as a result of a
stock split, stock dividend or similar adjustment of the outstanding
common stock of the registrant.
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(2)
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Estimated
in accordance with Rule 457(h), calculated on the basis of $20.00 per
share, which was the average of the bid and asked price of Security
Federal Corporation’s common stock on the Over-the-Counter Bulletin Board
on November 5, 2008.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document containing the information
specified in Part I of Form S-8 will be sent or given to participants in the
Security Federal Corporation 2008 Equity Incentive Plan, as specified by Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933. This document is not
being filed with the Commission, but constitutes (along with the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II hereof) a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The following documents previously or
concurrently filed by Security Federal Corporation (the “Registrant”) with the
Commission are hereby incorporated by reference in this Registration
Statement:
(a) the
Registrant’s Annual Report on Form 10-K for the fiscal year ended March 31, 2008
(File No. 000-16120) filed pursuant to the Securities Exchange Act of
1934;
(b) all
other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in Item 3(a) above; and
(c) the
description of the Registrant’s common stock, par value $0.01 per share, set
forth in its Registration Statement on Form 8-A, registering the Registrant’s
common stock, pursuant to Section 12(g) of the Securities Exchange Act of 1934,
filed on August 12, 1987 and all amendments thereto or reports filed for the
purpose of updating such description.
All documents subsequently filed by the
Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, 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 to be a part hereof
from the date of the filing of such documents. Any statement
contained in the documents incorporated, or deemed to be incorporated, by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein 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.
All information appearing in this
Registration Statement is qualified in its entirety by the detailed information,
including financial statements, appearing in the documents incorporated herein
by reference.
Item
4. Description of Securities
Not Applicable
Item
5. Interests of Named Experts and
Counsel
Not Applicable
Item
6. Indemnification of Directors and
Officers
Article XIV of the Registrant’s
Articles of Incorporation requires indemnification of directors, officers,
employees, trustees and agents of the Registrant for expenses actually and
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed action, suit or proceeding.
Chapter 8, Article 5 of the South
Carolina Business Corporation Act provides for permissible, mandatory and
court-ordered indemnification of directors, officers, employees and agents in
certain circumstances. Sections 33-8-510, 33-8-520 and 33-8-560
provide as follows:
33-8-510 AUTHORITY TO
INDEMNIFY. (a) Except as provided in subsection (d), a
corporation may indemnify an individual made a party to a proceeding because he
is or was a director against liability incurred in the proceeding if: (1) he
conducted himself in good faith; and (2) he reasonably believed: (i) in the case
of conduct in his
official
capacity with the corporation, that his conduct was in the best interest; and
(ii) in all other cases, that his conduct was at least not opposed to its best
interest; and (3) in the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
(b) A director’s conduct with respect
to an employee benefit plan for a purpose he reasonably believed to be in the
interests of the participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent is not, of itself, determinative that the director did not meet
the standard of conduct described in this section.
(d) A corporation may not indemnify a
director under this section: (1) in connection with a proceeding by or in the
right of the corporation in which the director was adjudged liable to the
corporation; or (2) in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his official
capacity, in
which he
was adjudged liable on the basis that personal benefit was improperly received
by him.
(e) Indemnification permitted under
this section in connection with a proceeding by or in the right of the
corporation is limited to reasonable expenses incurred in connection with the
proceeding.
33-8-520 MANDATORY
INDEMNIFICATION. Unless limited by its articles of incorporation, a
corporation shall indemnify a director who was wholly successful, on the merits
or otherwise, in the defense of any proceeding to which he was a party because
he is or was a director of the corporation against reasonable expenses incurred
by him in connection with the proceeding.
33-8-560 INDEMNIFICATION OF
OFFICERS, EMPLOYEES, AND AGENTS. Unless a corporation’s articles of
incorporation provide otherwise: (1) an officer of the corporation who is not a
director is entitled to mandatory indemnification under Section 33-8-520, and is
entitled to apply for court-ordered indemnification under Section 33-8-540, in
each case to the same extent as a director; (2) the corporation may indemnify
and advance expenses under this subchapter to an officer, employee, or agent of
the corporation who is not a director to the same extent as to a director; and
(3) a corporation also may indemnify and advance expenses to an officer,
employee, or agent who is not a director to the extent, consistent with public
policy, that may be provided by its articles of incorporation, bylaws, general
or specific action of its board of directors, or contract.
Section 33-8-570 also authorizes a
corporation to purchase and maintain insurance for directors, officers,
employees and agents against liability arising from their positions, whether or
not the corporation would have the power
to
indemnify against the same liability under Section 33-8-510 or Section
33-8-520. The Registrant maintains directors’ and officers’ liability
insurance for the benefit of its directors and officers.
Item
7. Exemption From Registration Claimed
Not Applicable
Item
8. Exhibits
The following exhibits are filed with
or incorporated by reference into this Registration Statement on Form
S-8:
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Exhibit
Number
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Description
of Document
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4.1
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Articles
of Incorporation of the Registrant, as amended(1)
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4.2
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Bylaws
of the Registrant(2)
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4.3
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Form
of Certificate of Common Stock of the Registrant(3)
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5
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Opinion
of Breyer & Associates PC
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Exhibit
Number
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Description
of Document
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23.1
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Consent
of Elliott Davis, LLC
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23.2
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Consent
of Breyer & Associates PC (contained in its opinion filed as Exhibit
5)
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24
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Power
of attorney (contained in the signature page of the Registration
Statement)
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99
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Security
Federal Corporation 2008 Equity Incentive Plan(4)
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(1)
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Included
as an exhibit to the Registrant’s 1998 Proxy Statement filed on June 26,
1998 and incorporated herein by
reference.
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(2)
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Included
as an exhibit to the Registrant’s Registration Statement on
Form S-8 filed on March 2, 2000 and incorporated herein by
reference.
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(3)
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Included
as an exhibit to the Registrant’s Registration Statement on Form 8-A filed
on August 12, 1987 and incorporated herein by
reference.
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(4)
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Included
as an exhibit to the Registrant’s 2008 Proxy Statement filed on June 20,
2008 and incorporated herein by
reference.
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Item
9. Undertakings
(a) The
undersigned Registrant hereby undertakes:
1. To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or 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 in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
2. That,
for the purposes of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed the initial bona fide offering
thereof.
3. To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Registrant hereby undertakes that, for the purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, 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 Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in the City of Aiken, State of South
Carolina, on November 12, 2008.
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SECURITY
FEDERAL CORPORATION
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By: /s/Timothy W.
Simmons
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Timothy W. Simmons
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President,
Chief Executive Officer and Director |
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(Duly Authorized Representative)
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POWER
OF ATTORNEY
Pursuant to the
requirements of the Securities Act of 1933, this Registration Statement has been
signed by the following persons in the capacities and on the dates
indicated. Each person whose signature appears below hereby makes,
constitutes and appoints Timothy W. Simmons his true and lawful attorney, with
full power to sign for such person and in such person’s name and capacity
indicated below, and with full power of substitution any and all amendments to
this Registration Statement, hereby ratifying and confirming such person’s
signature as it may be signed by said attorney to any and all
amendments.
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By:
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/s/Timothy W.
Simmons
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November
12, 2008
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Timothy W. Simmons
President, Chief Executive Officer and
Director
(Principal Executive
Officer)
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By:
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/s/Roy G.
Lindburg
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November
12, 2008
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Roy G. Lindburg
Chief Financial Officer and
Director
(Principal Financial and Accounting
Officer)
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By:
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/s/T. Clifton
Weeks
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November
12, 2008
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T. Clifton Weeks
Chairman of the Board and
Director
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By:
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/s/J. Chris
Verenes
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November
12, 2008
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J. Chris Verenes
President of Security Federal Bank and
Director
of Security Federal Corporation and
Security Federal Bank
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By:
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/s/Gasper L. Toole
III
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November
12, 2008
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Gasper L. Toole III
Director
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By:
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/s/Robert E.
Alexander
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November
12, 2008
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Robert E. Alexander
Director
Thomas L. Moore
Director
William Clyburn
Director
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By:
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/s/Frank M. Thomas,
Jr.
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November
12, 2008
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Frank M. Thomas, Jr.
Director
Security
Federal Corporation
EXHIBIT
INDEX
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Exhibit
Number
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Description
of Document
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5
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Opinion
of Breyer & Associates PC
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23.1
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Consent
of Elliott Davis, LLC
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Exhibit
5
Opinion
of Breyer & Associates PC
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Breyer & Associates
PC
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8180
Greensboro Drive
Suite
785
McLean,
Virginia 22102
Telephone
(703) 883-1100
Facsimile (703)
883-2511
E-mail
jbreyer@b-a.net
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ATTORNEYS
AT LAW
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*Not
admitted in Virginia
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November
12, 2008
Board of
Directors
Security
Federal Corporation
238
Richland Avenue West
Aiken,
South Carolina 29801
Gentlemen:
We have acted as special counsel to
Security Federal Corporation, a South Carolina corporation (the “Company”), in
connection with the preparation of the Registration Statement on Form S-8 filed
with the Securities and Exchange Commission (“Registration Statement”) under the
Securities Act of 1933, as amended, relating to shares of common stock, par
value $0.01 per share (the “Common Stock”) of the Company which may be issued
pursuant to the terms of the terms of the Security Federal Corporation 2008
Equity Incentive Plan (the “Plan”), as well as Common Stock which may be issued
pursuant to the grant or exercise of stock options (“Options”) or stock
appreciation rights (“Rights”) under the Plan, all as more fully described in
the Registration Statement. The Registration Statement also registers
an indeterminate number of additional shares which may be necessary to adjust
the number of shares registered thereby for issuance as the result of a stock
split, stock dividend or similar adjustment of the number of issued and
outstanding shares of Common Stock. You have requested the opinion of
this firm with respect to certain legal aspects of the proposed
offering.
We have reviewed the Registration
Statement, the Articles of Incorporation and Bylaws of the Company, the Plan, a
specimen stock certificate evidencing the Common Stock and such other documents
and records as we have deemed necessary for purposes of this
opinion. We are relying upon the originals, or copies certified or
otherwise identified to our satisfaction, of the corporate records of the
Company and such other instruments, certificates and representations of public
officials, officers and representatives of the Company as we have deemed
applicable or relevant as a basis for the opinions set forth
below. In addition, we have assumed, without independent
verification, the genuineness of all signatures and the authenticity of all
documents furnished to us and the conformance in all respects of copies to
originals. Furthermore, we have made such factual inquiries and
reviewed such laws as we determined to be relevant for the purposes of this
opinion.
For purposes of this opinion, we have
also assumed that (i) the shares of Common Stock issuable pursuant to the Plan
will continue to be validly authorized on the dates that any restrictions on the
Common Stock lapse; (ii) the shares of Common Stock issuable pursuant to the
exercise of Options or Rights will continue to be validly authorized on the
dates the Common Stock is issued pursuant to the exercise of such Options or
Rights, (iii) on the dates the Options or Rights are exercised, such Options or
Rights will constitute valid, legal and binding obligations of the Company and
will be enforceable as to the Company in accordance with their terms (subject to
applicable bankruptcy, moratorium, insolvency, reorganization and other laws and
legal principles affecting the enforceability of creditors’ rights generally),
(iv) no change occurs in applicable law or the pertinent facts, (v) the Options
or Rights are exercised in accordance with the terms of the Plan and any
separate agreement evidencing the grant of such Options or Rights pursuant to
the Plan and the exercise price due therefor, if any, is paid in accordance with
the terms thereof and (vi) the provisions of “blue sky” and other securities
laws as may be applicable have been complied with to the extent
required.
Based on the foregoing, and subject to
the assumptions set forth herein, we are of the opinion as of the date hereof
that the shares of Common Stock to be issued pursuant to the Plan, upon receipt
by the Company of any consideration required thereby, as applicable, will be
legally issued, fully paid and non-assessable shares of Common
Stock.
We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement on Form S-8.
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Sincerely,
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/s/Breyer &
Associates PC |
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BREYER
& ASSOCIATES PC
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Exhibit
23.1
Consent
of Elliott Davis, LLC
Consent
of Independent Registered Public Accounting Firm
The Board
of Directors
Security
Federal Corporation:
We
consent to incorporation by reference in this Registration Statement on Form S-8
of our report dated June 9, 2008, relating to the consolidated balance sheet of
Security Federal Corporation and subsidiaries as of March 31, 2008 and the
related consolidated statements of income, shareholders’ equity and cash flows
for the year then ended, which report appears in the March 31, 2008 Annual
Report on Form 10-K.
/s/
Elliott Davis, LLC
Columbia,
South Carolina
November
6, 2008