s-3121.htm
As filed
with the Securities and Exchange Commission on January 22, 2009
Registration
Nos. 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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TIMBERLAND
BANCORP, INC.
(Exact
name of registrant as specified in its
charter)
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Washington
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91-1863696
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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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624
Simpson Avenue
Hoquiam,
Washington 98550
(360)
533-4747
(Address,
including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Dean
J. Brydon
Chief
Financial Officer
Timberland
Bancorp, Inc.
624
Simpson Avenue
Hoquiam,
Washington 98550
(360)
533-4747
(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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John
F. Breyer, Jr., Esq.
Breyer
& Associates PC
8180
Greensboro Drive, Suite 785
McLean,
Virginia 22102
(703)
883-1100
(703)
883-2911 (fax)
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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 þ
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Non-accelerated
filer o
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Smaller reporting company o
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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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370,899
shares
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$7.19(2)
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$2,666,764
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$105
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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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$2,666,764
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$105
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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 $7.19 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 January 15,
2009.
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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 22, 2009
PROSPECTUS
Timberland
Bancorp, Inc.
370,899
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 23, 2018, to purchase 370,899 shares of our common stock at an exercise
price of $6.73 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 16,641 shares of our Fixed Rate
Cumulative Perpetual Preferred Stock, Series A (liquidation preference amount
$1,000 per share), was issued by us on December 23, 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
“TSBK.” On January 15, 2009, the closing sale price of our common
stock on the NASDAQ Global Market was $7.00 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
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Page |
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| ABOUT THIS
PROSPECTUS |
iii
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| SPECIAL NOTE
REGARDING FORWARD-LOOKING STATEMENTS |
iii
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| WHERE YOU CAN FIND
MORE INFORMATION |
iv
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PROSPECTUS
SUMMARY
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1
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| RISK
FACTORS |
2
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| USE OF
PROCEEDS |
11 |
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| REGULATORY
CONSIDERATIONS |
11 |
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| DESCRIPTION OF
WARRANT |
12 |
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| DESCRIPTION OF
CAPITAL STOCK |
13 |
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| SELLING
SECURITYHOLDERS |
19 |
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| PLAN OF
DISTRIBUTION |
20 |
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| LEGAL
MATTERS |
22 |
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| EXPERTS |
22 |
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
Timberland Bancorp, Inc. and its consolidated subsidiaries and all references in
this prospectus to “Timberland Bancorp” mean Timberland Bancorp, Inc. excluding
its subsidiaries, in each case unless otherwise expressly stated or the context
otherwise requires. When we refer to “Timberland Bank” in this
prospectus, we mean our subsidiary, Timberland Bank, a Washington-chartered
savings bank. We sometimes refer to Timberland Bank 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
general economic climate in our market area and the Unites States as a
whole;
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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
industry;
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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 and control
expenses;
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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 September 30, 2008
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• Current
Reports on Form 8-K
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Filed
on October 2, 2008, October 31, 2008, December 3, 2008, December 18, 2008
and December 24, 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. In addition, we incorporate by reference the
description of our common stock contained in the Registration Statement on Form
8-A we filed with the SEC on November 7, 1997.
These
documents are available without charge to you on the Internet at www.timberlandbank.com
or if you call or write to: Timberland Bancorp, Inc. - Investor Relations, Attn:
Dean J. Brydon, CFO, 624 Simpson Avenue, Hoquiam, Washington 98550,
telephone: (360) 533-4747, ext 2243 or 1-800-562-8761. 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.
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.
Timberland
Bancorp, Inc.
Timberland
Bancorp, Inc. is a bank holding company incorporated under the laws of the State
of Washington. We conduct our business primarily through our wholly
owned subsidiary, Timberland Bank, a Washington-chartered savings bank that was
originally formed in 1915. The Bank considers Grays Harbor, Thurston,
Pierce, King, Kitsap and Lewis Counties, Washington as its primary market
areas. The Bank conducts its business primarily from its main office
in Hoquiam, Washington and 21 branch offices. The Bank is a
community-oriented bank which has traditionally offered a variety of savings
products to its retail customers while concentrating its lending activities on
real estate mortgage loans. Lending activities have been focused
primarily on the origination of loans secured by real estate, including an
emphasis on construction loans, one- to four-family residential loans,
multi-family loans, commercial real estate loans and land loans. The
Bank originates adjustable-rate residential mortgage loans that do not qualify
for sale in the secondary market under Federal Home Loan Mortgage Corporation
guidelines. The Bank also originates commercial business loans and in
1998 established a business banking division to increase the origination of
these loans.
Our
common stock is traded on the NASDAQ Global Market under the ticker symbol
“TSBK.” Our principal executive offices are located at 624 Simpson
Avenue, Hoquiam, Washington 98550. Our telephone number is
(360) 533-4747.
Securities
Being Offered
The
securities being offered by this prospectus consist of (i) a warrant, or
portions thereof, which expires on December 23, 2018, to purchase 370,899 shares
of our common stock at an exercise price of $6.73 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 23, 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 16,641 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 $16.6 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.”
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.
Business
Risks
Our
business may be adversely affected by downturns in the local economies on which
we depend that could adversely impact our results of operations and financial
condition.
Our
business is directly affected by market conditions, trends in industry and
finance, legislative and regulatory changes, and changes in governmental
monetary and fiscal policies and inflation, all of which are beyond our
control. In 2007, the housing and real estate sectors experienced an
economic slowdown that has continued into 2009. A sustained weakness
or weakening in business and economic conditions generally or specifically
in the principal markets in which we do business could have one or more of the
following adverse impacts on our business:
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A
decrease in the demand for loans and other products and services offered
by us;
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A
decrease in the value of our loans held for
sale;
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An
increase or decrease in the usage of unfunded commitments;
or
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An
increase in the number of our customers and counterparties who become
delinquent, file for protection under bankruptcy laws or default on their
loans or other obligations to us.
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An
increase in the number of delinquencies, bankruptcies or defaults could result
in a higher level of non-performing assets, net charge-offs, provision for loan
losses, and valuation adjustments on loans held for sale.
Downturns
in the real estate markets in our primary market areas could hurtour
business.
Our
business activities and credit exposure are primarily concentrated in our local
market areas of Grays Harbor, Thurston, Pierce, King, Kitsap and Lewis
Counties. Our residential loan portfolio, and our commercial real
estate and multi-family loan portfolio and some of our other loans have been
affected by the downturn in the residential real estate market. We
anticipate that further declines in the real estate markets in our
primary market areas will negatively impact our business. As of
September 30, 2008, substantially all of our loan portfolio consisted of loans
secured by real estate located in Washington. If real estate values
continue to decline the collateral for our loans will provide less
security. As a result, our ability to recover on defaulted loans by
selling the underlying real estate will 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.
We
may suffer losses in our loan portfolio despite our underwriting
practices.
We seek
to mitigate the risks inherent in our loan portfolio by adhering to specific
underwriting practices. Although we believe that our underwriting
criteria are appropriate for the various kinds of loans we make, we may incur
losses on loans that meet our underwriting criteria, and these losses may exceed
the amounts set aside as reserves in our allowance for loan losses.
Our
loan portfolio includes increased risk due to changes in category composition of
the portfolio. The percentage of loans secured by first mortgages on
one-to four-family residential properties has decreased as the portfolio has
been positioned into higher-yielding loan categories that typically involve a
higher degree of risk.
From
September 30, 2004 through September 30, 2008, our total loans have grown by
54.8%. During this period the percentage of one- to four-family loans in the
loan portfolio has decreased to 18.4% from 25.3%. Our commercial real estate
loans, construction and land development loans, multi-family loans, land loans,
commercial business loans, and consumer loans accounted for approximately
81.6% of our total loan portfolio as of September 30, 2008. We
consider these types of loans to involve a higher degree of risk compared to
first mortgage loans on one- to four-family, owner-occupied residential
properties, and therefore, may cause higher future loan
losses. Accordingly, as a result of the inherent risks associated
with these types of loans, and the unseasoned nature of a portion of these
loans, it may become necessary to increase the level of our provision for loan
losses. An increase in our provision for loan losses would reduce our
profits.
For
further information concerning the risks associated with multi-family, and
commercial real estate loans, construction loans, and consumer loans, see “Item
1. Business - Lending Activities” in our Annual Report on Form 10-K for the
fiscal year ended September 30, 2008, which is incorporated herein by
reference. See “Where You Can Find More Information.”
We
have increased our construction and land development lending, which presents
greater risk than one- to four-family and consumer lending.
From
September 30, 2004 through September 30, 2008, our total construction and land
development loans have grown by 35.0%. During this period the
percentage of construction and land development loans in the loan portfolio
increased to 30.5% from 26.9%. Construction lending is generally
considered to involve a higher level of risk as compared to single-family
residential or consumer lending, as a result of the concentration of principal
in a limited number of loans and borrowers, and the effects of
general economic conditions on developers and builders. Moreover, a construction
loan can involve additional risks because of the inherent difficulty in
estimating both a property's value at completion of the project and the
estimated cost (including interest) of the project. The nature of these loans is
such that they are generally more difficult to evaluate and
monitor. In addition, speculative construction loans to a builder are
often associated with homes that are not pre-sold, and thus pose a greater
potential risk to us than construction loans to individuals on their personal
residences. Construction loans on land under development or held for future
construction also poses additional risk because of the lack of income being
produced by the property and the potential illiquid nature of the
security.
Fluctuations
in interest rates could reduce our profitability and affect the value of our
assets.
Like
other financial institutions, we are subject to interest rate
risk. Our primary source of income is net interest income, which is
the difference between interest earned on loans and investment securities and
the interest paid on deposits and borrowings. We expect that we will
periodically experience imbalances in the interest rate sensitivity of our
assets and liabilities and the relationships of various interest rates to each
other. Over any period of time, our interest-earning assets may be
more sensitive to changes in market interest rates than our interest-bearing
liabilities, or vice versa. In addition, the individual market
interest rates underlying our loan and deposit products may not change to the
same degree over a given time period. In any event, if market
interest rates should move contrary to our position, our earnings may be
negatively affected. In addition, loan volume and quality and deposit
volume and mix can be affected by market interest rates. Changes in
levels of market interest rates could materially adversely affect our net
interest spread, asset quality, origination volume and overall
profitability.
Interest
rates have recently decreased after increasing for several years. A
sustained falling interest rate environment would negatively impact margins as
the Bank has more interest earning assets that would adjust downward than
interest-bearing liabilities that would adjust downward.
We manage
our assets and liabilities in order to achieve long-term profitability while
limiting our exposure to the fluctuation of interest rates. We
anticipate periodic imbalances in the interest rate sensitivity of our assets
and liabilities and the relationship of various interest rates to each
other. At any reporting period, we may have earning
assets
which are more sensitive to changes in interest rates than interest-bearing
liabilities, or vice versa. The fluctuation of market interest rates
can materially affect our net interest spread, interest margin, loan
originations, deposit volumes and overall profitability. In addition,
we may have valuation risk in measuring our interest rate risk
position. The valuation risk is attributable to calculation methods
(modeling risks) and assumptions used in the model, including loan prepayments
and forward interest rates.
We
are required to maintain a higher capital ratio because of our level of
commercial real estate loans.
The FDIC,
along with the Federal Reserve and the Office of the Comptroller of the
Currency, has issued final guidance for financial institutions with
concentrations in commercial real estate lending. The guidance
provides that a bank has a concentration in commercial real estate lending if
(i) total reported loans for construction, land development, and other land
represent 100% or more of total capital or (ii) total reported loans secured by
multi-family and non-farm residential properties and loans for construction,
land development, and other land represent 300% or more of total capital and its
construction loan portfolio has increase 50% or more during the prior 36
months. If a concentration is present, management must employ
heightened risk management practices including board and management oversight
and strategic planning, development of underwriting standards, risk assessment
and monitoring through market analysis and stress testing, and increasing
capital requirements. Based on the Bank's projected commercial real
estate lending levels, it is considered to have a concentration in commercial
real estate lending and must implement the practices outlined in the final
guidance.
Our
commercial business lending activities involves greater risk than other types of
lending.
Our
commercial business lending has increased since 2003 and we intend to continue
to offer commercial business loans to small and medium sized
businesses. Our ability to originate commercial business loans is
determined by the demand for these loans and our ability to attract and retain
qualified commercial lending personnel. Because payments on
commercial business loans generally depend on the successful operation of the
business involved, repayment of commercial business loans may be subject to a
greater extent to adverse conditions in the economy than other types of
lending. Although commercial business loans often have
equipment, inventory, accounts receivable or other business assets as
collateral, the sale of the collateral in the event the borrower does not repay
the loan is often not sufficient to repay the loan because the collateral may be
uncollectible and inventories and equipment may be obsolete or of limited use,
among other things.
Our
funding sources may prove insufficient to replace deposits and support our
future growth.
We rely
on customer deposits and advances from the FHLB of Seattle and other borrowings
to fund our operations. Although we have historically been able to
replace maturing deposits and advances if desired, we may not be able to replace
such funds in the future if our financial condition or the financial condition
of the FHLB of Seattle or market conditions were to change. Our financial
flexibility will be severely constrained if we are unable to maintain our access
to funding or if adequate financing is not available to accommodate future
growth at acceptable interest rates. Finally, if we are required to
rely more heavily on more expensive funding sources to support future
growth, our revenues may not increase proportionately to cover our
costs. In this case, our profitability would be adversely
affected.
Although
we consider such sources of funds adequate for our liquidity needs, we may seek
additional debt in the future to achieve our long-term business
objectives. Additional borrowings, if sought, may not be available to
us or, if available, may not be available on reasonable terms. If
additional financing sources are unavailable or are not available on reasonable
terms, our growth and future prospects could be adversely affected.
If
our allowance for loan losses is not sufficient to cover future loan losses, our
earnings could decrease.
We make
various assumptions and judgments about the collectibility of our loan
portfolio, including the creditworthiness of our borrowers and the value of the
real estate and other assets serving as collateral for the repayment of many of
our loans. In determining the amount of the allowance for loan
losses, we review several factors including our loan loss and delinquency
experience, underwriting practices, and economic conditions. If our assumptions
are incorrect, our allowance for loan losses may not be sufficient to cover
future losses in the loan
portfolio,
resulting in the need for greater additions to our
allowance. Material additions to the allowance could materially
decrease our net income. Our allowance for loan losses was 1.42% of total loans
receivable (net) and 67.1% of non-performing loans at September 30,
2008.
In
addition, bank regulators periodically review our allowance for loan losses and
may require us to increase our provision for loan losses or recognize further
loan charge-offs. Any increase in our allowance for loan losses or
loan charge-offs as required by these regulatory authorities may have a material
adverse effect on our financial condition and results of
operations.
Our
deposit insurance premiums are expected to increase substantially, which will
adversely affect our profits.
Our
deposit insurance premiums during fiscal 2008 totaled $296,000. These premiums
were, however, offset by $166,000 in credits, leaving the net expense recorded
for deposit insurance premiums during the year ended September 30, 2008 at
$130,000. These credits were fully depleted during the quarter ended
June 30, 2008. Those premiums are expected to increase in 2009 due to
recent strains on the FDIC deposit insurance fund due to the cost of large bank
failures and increase in the number of troubled banks. The current
rates for FDIC assessments have ranged from 5 to 43 basis points, depending on
the health of the insured institution. The FDIC has proposed
increasing that assessment range to 12 to 50 basis points for the first quarter
of 2009. For the remainder of 2009, it has proposed a range of 10 to
45 basis points for institutions that do not trigger risk factors for brokered
deposits and unsecured debt and higher rates for those that do trigger those
risk factors. The FDIC also proposed that it could increase assessment rates in
the future without formal rulemaking.
Competition
with other financial institutions could adversely affect our
profitability.
The
banking and financial services industry is very competitive. Legal and
regulatory developments have made it easier for new and sometimes unregulated
competitors to compete with us. Consolidation among financial service
providers has resulted in fewer very large national and regional banking and
financial institutions holding a large accumulation of assets. These
institutions generally have significantly greater resources, a wider geographic
presence or greater accessibility. Our competitors sometimes are also
able to offer more services, more favorable pricing or greater customer
convenience than we do. In addition, our competition has grown from
new banks and other financial services providers that target our existing or
potential customers. As consolidation continues among large banks, we
expect additional institutions to try to exploit our market.
Technological
developments have allowed competitors including some non-depository
institutions, to compete more effectively in local markets and have expanded the
range of financial products, services and capital available to our target
customers. If we are unable to implement, maintain and use such
technologies effectively, we may not be able to offer products or achieve the
cost-efficiencies necessary to compete in our industry. In addition, some of
these competitors have fewer regulatory constraints and lower cost
structures.
The
loss of key members of our senior management team could adversely affect our
business.
We
believe that our success depends largely on the efforts and abilities of our
senior management. Their experience and industry contacts
significantly benefit us. The competition for qualified personnel in
the financial services industry is intense, and the loss of any of our key
personnel or an inability to continue to attract, retain and motivate key
personnel could adversely affect our business.
We
are subject to extensive government regulation and supervision.
We are
subject to extensive federal and state regulation and supervision, primarily
through the Bank and certain non-bank subsidiaries. Banking
regulations are primarily intended to protect depositors' funds, federal deposit
insurance funds and the banking system as a whole, not
shareholders. These regulations affect our lending practices, capital
structure, investment practices, dividend policy and growth, among other
things. Congress and federal regulatory agencies continually review
banking laws, regulations and policies for possible changes. Changes
to statutes, regulations or regulatory policies, including changes in
interpretation or implementation of statutes,
regulations
or policies, could affect us in substantial and unpredictable
ways. Such changes could subject us to additional costs, limit the
types of financial services and products we may offer and/or increase the
ability of non-banks to offer competing financial services and products, among
other things. Failure to comply with laws, regulations or policies
could result in sanctions by regulatory agencies, civil money penalties and/or
reputation damage, which could have a material adverse effect on our business,
financial condition and results of operations. While we have policies
and procedures designed to prevent any such violations, there can be no
assurance that such violations will not occur. For further
information, see “Item 1. Business—Regulation” in our Annual Report on Form 10-K
for the fiscal year ended September 30, 2008, which is incorporated herein by
reference. See “Where You Can Find More
Information.”
We
rely heavily on the proper functioning of our technology.
We rely
heavily on communications and information systems to conduct our
business. Any failure, interruption or breach in security of these
systems could result in failures or disruptions in our customer relationship
management, general ledger, deposit, loan and other systems. While we
have policies and procedures designed to prevent or limit the effect of the
failure, interruption or security breach of our information systems, such
failures, interruptions or security breaches may still occur and, if they do
occur, they may not be adequately addressed. The occurrence of any
failures, interruptions or security breaches of our information systems could
damage our reputation, result in a loss of customer business, subject us to
additional regulatory scrutiny, or expose us to civil litigation and
possible financial liability, any of which could have a material adverse effect
on our financial condition and results of operations.
We rely
on third-party service providers for much of our communications, information,
operating and financial control systems technology. If any of our third-party
service providers experience financial, operational or technological
difficulties, or if there is any other disruption in our relationships with
them, we may be required to locate alternative sources of such services, and we
may not be able to negotiate terms that are as favorable to us, or obtain
services with similar functionality, as found in our existing systems, without
the need to expend substantial resources, if at all. Any of these circumstances
could have an adverse effect on our business.
We
rely on dividends from subsidiaries for most of our revenue.
Timberland
Bancorp is a separate and distinct legal entity from the
Bank. Timberland Bancorp receives substantially all of its revenue
from dividends from the Bank. These dividends are the principal
source of funds to pay dividends on our common stock and interest and principal
on our debt. Various federal and/or state laws and regulations limit
the amount of dividends that the Bank may pay to
Timberland. Also, our right to participate in a distribution of
assets upon a subsidiary's liquidation or reorganization is subject to the prior
claims of the subsidiary's creditors. In the event the Bank is unable
to pay dividends to Timberland Bancorp, we may not be able to service our debt,
pay obligations or pay dividends on our common stock. The inability
to receive dividends from the Bank could have a material adverse effect on our
business, financial condition and results of operations.
If
we fail to maintain an effective system of internal control over financial
reporting, we may not be able to accurately report our financial results or
prevent fraud, and, as a result, investors and depositors could lose confidence
in our financial reporting, which could adversely affect our business, the
trading price of our stock and our ability to attract additional
deposits.
In
connection with the enactment of the Sarbanes-Oxley Act of 2002 and the
implementation of the rules and regulations promulgated by the SEC, we document
and evaluate our internal control over financial reporting in order to satisfy
the requirements of Section 404 of the Sarbanes-Oxley Act. This
requires us to prepare an annual management report on our internal control over
financial reporting, including among other matters, management's assessment of
the effectiveness of internal control over financial reporting and an
attestation report by our independent auditors addressing these
assessments. If we fail to identify and correct any significant
deficiencies in the design or operating effectiveness of our internal control
over financial reporting or fail to prevent fraud, current and potential
shareholders and depositors could lose confidence in our internal controls and
financial reporting, which could adversely affect our business, financial
condition and results of operations, the trading price of our stock and our
ability to attract additional deposits.
Changes
in accounting standards may affect our performance.
Our
accounting policies and methods are fundamental to how we record and report our
financial condition and results of operations. From time to time
there are changes in the financial accounting and reporting standards that
govern the preparation of our financial statements. These changes can
be difficult to predict and can materially impact how we report and record our
financial condition and results of operations. In some cases, we
could be required to apply a new or revised standard retroactively, resulting in
restating prior period financial statements.
Risks
Related to the U.S. Financial Industry
Difficult
market conditions have adversely affected our industry.
We are
particularly exposed to downturns in the U.S. housing market. Dramatic declines
in the housing market over the past year, with falling home prices and
increasing foreclosures, unemployment and under-employment, have negatively
impacted the credit performance of mortgage loans and resulted in significant
write-downs of asset values by financial institutions, including
government-sponsored entities, major commercial and investment banks, and
regional financial institutions such as our company. Reflecting
concern about the stability of the financial markets generally and the strength
of counterparties, many lenders and institutional investors have reduced or
ceased providing funding to borrowers, including to other financial
institutions. This market turmoil and tightening of credit have led
to an increased level of commercial and consumer delinquencies, lack of consumer
confidence, increased market volatility and widespread reduction of business
activity generally. The resulting economic pressure on consumers and
lack of confidence in the financial markets have adversely affected our
business, financial condition and results of operations. We do not
expect that the difficult conditions in the financial markets are likely to
improve in the near future. A worsening of these conditions would
likely exacerbate the adverse effects of these difficult market conditions on us
and others in the financial institutions industry. In particular, we
may face the following risks in connection with these events:
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We
expect to face increased regulation of our industry. Compliance with such
regulation may increase our costs and limit our ability to pursue business
opportunities.
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Our
ability to assess the creditworthiness of our customers may be impaired if
the models and approaches we use to select, manage and underwrite our
customers become less predictive of future
behaviors.
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The
analysis we use to estimate losses inherent in our credit exposure
requires difficult, subjective and complex
judgments. Forecasts of economic conditions and how these
economic predictions might impair the ability of our borrowers to repay
their loans, may no longer be capable of accurate
estimation. This may impact the reliability of our
analysis.
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Our
ability to borrow from other financial institutions on favorable terms, or
at all, could be adversely affected by further disruptions in the capital
markets or other events, including actions by rating agencies and
deteriorating investor
expectations.
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Competition
in our industry could intensify as a result of the increasing
consolidation of financial services companies in connection with current
market conditions.
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We
may be required to pay significantly higher deposit insurance premiums
because market developments have significantly depleted the insurance fund
of the FDIC and reduced the ratio of reserves to insured
deposits.
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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.
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
Washington 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 23, 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 Timberland
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 5.0% of the shares of our
common stock outstanding as of January 20, 2009 (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, Timberland 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 September 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 savings bank subsidiary,
Timberland Bank, within certain limits, and the Washington State Department of
Financial Institutions, Division of Banks, 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
Washington law, Timberland Bancorp is prohibited from paying a dividend if,
after making such dividend payment, it would be unable to pay its debts as they
become due in the usual course of business, or if its total liabilities, plus
the amount that would be needed, in the event Timberland Bancorp were to be
dissolved at the time of the dividend payment, to satisfy preferential rights on
dissolution of holders of preferred stock ranking senior in right of payment to
the capital stock on which the applicable distribution is to be made exceed our
total assets.
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 23, 2008 concurrent with our sale to Treasury of 16,641
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 24, 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 370,899 shares of
our common stock at an exercise price of $6.73 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 23, 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 on or before December 31, 2009 resulting in aggregate gross
proceeds of at least $16.6 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 Timberland
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 $16.6 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 23, 2011, issuance of our common stock (or securities convertible
into our common stock)
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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
Timberland Bancorp prior to exercise.
Our
authorized capital stock consists of:
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50,000,000
shares of common stock, par value $.01 per share;
and
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1,000,000
shares of preferred stock, par value $.01 per
share.
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As of
January 20, 2009, there were 7,030,744 shares of our common stock issued
and outstanding and 16,641 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
Washington 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 23, 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 any trust preferred securities then
outstanding.
Preferred
Stock-General
Our
articles of incorporation permit our Board of Directors to authorize the
issuance of up to 1,000,000 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 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 articles of amendment 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 24, 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 16,641 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 23, 2008 in connection with the TARP Capital Purchase
Program for a purchase price of $16.6 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 23,
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 Timberland 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 Timberland
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 Timberland 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 Timberland 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 Timberland Bancorp with another entity nor a sale,
lease or exchange of all or substantially all of Timberland Bancorp’s assets
will constitute a liquidation, dissolution or winding up of the affairs of
Timberland 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 $4,160,250 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 Washington
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 Timberland 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 Washington 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 articles of amendment 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 Timberland Bancorp;
or
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amend
our articles of incorporation or the articles of amendment 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 Timberland 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
Timberland 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 Washington 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 50,000,000 shares of common stock and 1,000,000 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
granting of equity incentive awards. 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.
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.
Board of
Directors. 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. Timberland Bancorp currently has seven
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. A director elected to fill a
vacancy shall serve for the unexpired term of his or her predecessor, while a
directorship filled by reason of an increase in the number of directors may be
filled for a term expiring at 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 eligible to be
cast at a meeting called expressly for that purpose.
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 articles of incorporation provide that
special meetings of shareholders may only be called by our President or our
Board of Directors.
Action by Shareholders Without A
Meeting. Our bylaws provide that any action required or
permitted to be taken at a meeting of shareholders may be taken without a
meeting if consent in writing, setting forth the action taken, is given by each
shareholder 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 “related persons” of Timberland Bancorp require, in addition to any
vote required by law, the approval of (i) the holders of at least 80% of the
outstanding shares entitled to vote thereon, and (ii) the holders of at least a
majority of the outstanding shares entitled to vote thereon, not beneficially
owned by the related person, unless the transaction has been approved by
two-thirds of the directors who are unaffiliated with the related person and
were directors prior to the time when the related person became a related person
(referred to as “continuing directors”), or any successor to a continuing
director who is unaffiliated with the related person and was recommended to
succeed a continuing director by a majority of the continuing directors then
serving on the Board. A “related person” for purposes of this
provision generally means a person who beneficially owns 10% or more of the
common stock of Timberland Bancorp and such person’s affiliates.
Washington
law imposes restrictions on certain transactions between a corporation and
certain significant shareholders. Chapter 23B.19 of the Washington Business
Corporation Act prohibits a “target corporation,” with certain exceptions, from
engaging in certain “significant business transactions” with an “acquiring
person” who acquires 10% or more of the voting securities of a target
corporation for a period of five years after such acquisition, unless the
transaction or acquisition of shares is approved by a majority of the members of
the target corporation’s board of directors prior to the date of the acquisition
or, at or subsequent to the date of the acquisition, the transaction is approved
by a majority of the members of the target corporation’s board of directors and
authorized at a shareholders’ meeting by the vote of at least two-thirds of the
outstanding voting shares of the target corporation, excluding shares owned or
controlled by the acquiring person. The prohibited transactions
include, among others, a merger or consolidation with, disposition of assets to,
or issuance or redemption of stock to or from, the acquiring person, termination
of 5% or more of the employees of the target corporation as a result of the
acquiring person’s acquisition of 10% or more of the shares, or allowing the
acquiring person to receive any disproportionate benefit as a shareholder. After
the five-year period during which significant business transactions are
prohibited, certain significant business transactions may occur if certain “fair
price” criteria or shareholder approval requirements are met. Target
corporations include all publicly-traded corporations incorporated under
Washington law, as well as publicly traded foreign corporations that meet
certain requirements.
Amendment of Articles of
Incorporation and Bylaws. Amendments to our
articles of incorporation must be approved by our Board of Directors by a
majority vote of the Board and by our shareholders by a majority of
the voting group comprising all the votes entitled to be cast on the proposed
amendment, and a majority of each other voting group entitled to vote separately
on the proposed amendment; provided, however, that the affirmative vote of the
holders of at least 80% of votes entitled to be cast by each separate voting
group entitled to vote thereon is required to amend or repeal certain provisions
of the articles of incorporation, including the provisions relating to: the
limitation on voting rights; the issuance of capital stock; the absence of
preemptive rights; the removal of directors; shareholder nominations and
proposals; the approval of certain business combinations; the evaluation of
business combinations; limitations on director liability; director and officer
indemnification; calling special meetings of shareholders; and the amendment of
the articles of incorporation and bylaws. Our bylaws may be amended
by a majority vote of our Board of Directors, or by a vote of the holders of at
least 80% 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 articles of incorporation require a
shareholder who intends to nominate a candidate for election to the Board of
Directors, or to raise new business at a shareholder meeting to give not less
than 30 nor more than 60 days’ advance written notice to the Secretary of
Timberland Bancorp, provided that if less than 31 days’ notice of the meeting is
given to shareholders, the shareholder’s notice of nominees or proposed business
must be given to the Secretary no later than the tenth day after the day on
which notice of the meeting was mailed to shareholders. The notice
provision requires a shareholder who desires to raise new business to provide
certain information to us concerning the nature of the new business, the
shareholder and the shareholder’s interest in the business
matter. Similarly, a shareholder wishing to nominate any person for
election as a director must provide us with certain information concerning the
nominee and the proposing shareholder.
Transfer
Agent
The
transfer agent and registrar for our common stock is American Stock Transfer
& Trust 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 23, 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 370,899 shares of our common stock at an
exercise price of $6.73 per share, subject to adjustment as described
under “Description of Warrant”; and
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the
370,899 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 5.0% of the shares
of our common stock outstanding as of January 20, 2009
(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;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
|
|
·
|
broker-dealers
may agree with the selling securityholders to sell a specified number of
such shares at a stipulated price per
share;
|
|
·
|
a
combination of any such methods of sale;
and
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
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 Breyer & Associates, P.C., McLean, Virginia.
EXPERTS
The
consolidated financial statements of Timberland Bancorp, Inc. as of September
30, 2008 and 2007, and for each of the years in the three year period ended
September 30, 2008, and management’s assessment of the effectiveness of internal
control over financial reporting as of September 30, 2008, have been
incorporated by reference herein in reliance upon the report of McGladrey &
Pullen, LLP, independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
370,899
Shares of Common Stock and a Warrant to Purchase Such Shares
Timberland
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. Timberland Bancorp,
Inc. (“Timberland” or the “Registrant”) will bear all of these
expenses.
| Registration fee
under the Securities Act |
$ 105
|
|
| Legal fees and
expenses* |
$
50,000
|
|
| Accounting fees and
expenses* |
$
15,000
|
|
| Printing and other
miscellaneous fees and expenses* |
$
10,000
|
|
| Total |
$
75,105
|
|
*Estimated
solely for the purpose of this Item. Actual expenses may be more or
less.
Item
15. Indemnification of Officers and Directors
Timberland
is organized under the Washington Business Corporation Act (the “WBCA”) which,
in general, empowers Washington corporations to indemnify a person made a party
to a threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, other
than an action by or in the right of the corporation, by reason of the fact that
such 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,
partner, trustee, employee or agent of another enterprise, against expenses,
including attorney's fees, judgments, amounts paid in settlements, penalties and
fines actually and reasonably incurred in connection therewith if the person
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the corporation or its shareholders and, with respect
to a criminal action or proceeding, if the person had no reasonable cause to
believe his or her conduct was unlawful. Washington corporations may not
indemnify a person in connection with such proceedings if the person was
adjudged to have received an improper personal benefit.
The WBCA
also empowers Washington corporations to provide similar indemnity to such a
person in connection with actions or suits by or in the right of the corporation
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the interests of the corporation or its shareholders,
unless the person was adjudged liable to the corporation.
If
authorized by the articles of incorporation of a Washington corporation or by
its shareholders, a Washington corporation may indemnify and advance expenses to
the persons described above without regard to the limitations described above,
provided that such indemnity will not cover acts or omissions of the person
finally adjudged to be intentional misconduct or a knowing violation of law,
conduct finally adjudged to involve a violation of WBCA Section 310 (related to
certain unlawful distributions), and any transaction with respect to which it
was finally adjudged that the person received a benefit to which such person was
not legally entitled.
The WBCA
also permits a Washington corporation to purchase and maintain on behalf of such
person insurance against liabilities incurred in such capacities. Timberland has
obtained a policy of directors' and officers' liability insurance.
The WBCA
further permits Washington corporations to limit the personal liability of
directors for a breach of their fiduciary duty. However, the WBCA does not
eliminate or limit the liability of a director for any of the following: (i)
acts or omissions that involve intentional misconduct by a director or a knowing
violation of law by a director; (ii) conduct violating WBCA Section 310; or
(iii) any transaction from which the director will personally receive a benefit
in money, property or services to which the director is not legally
entitled.
Timberland’s
articles of incorporation limit the personal liability of directors for a breach
of their fiduciary duty to the extent permitted under Washington law as
described above.
Timberland’s
articles of incorporation generally require Timberland to indemnify directors,
officers, employees and agents to the fullest extent legally possible under the
WBCA. In addition, the articles of incorporation require Timberland to similarly
indemnify any such person who is or was serving at the request of Timberland as
a director, officer, partner, trustee, employee or agent of another
entity.
Under a
directors’ and officers’ liability insurance policy, directors and officers of
Timberland are insured against certain liabilities.
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
|
|
Articles
of Amendment to Articles of Incorporation of the
Registrant(2)
|
|
|
|
|
|
3.3
|
|
Bylaws
of the Registrant(3)
|
|
|
|
|
|
4.1
4.2
|
|
Warrant
to purchase shares of the Registrant’s common stock dated December 23,
2008(4)
Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated December 23, 2008 between the registrant and the
United States Department of the Treasury(5)
|
|
|
|
|
|
5.1
|
|
Opinion
of Breyer & Associates PC
|
|
|
|
|
|
23.1
|
|
Consent
of McGladrey & Pullen LLP
|
|
|
|
|
|
23.2
|
|
Consent
of Breyer & Associates PC (contained in its opinion filed as Exhibit
5.1)
|
|
|
|
|
|
24.1
|
|
Power
of attorney (contained in the signature page of the registration
statement)
|
|
________________
|
|
|
(1)
|
Incorporated
by reference to Exhibit 3.1 attached to the Registration Statement on Form
S-1 filed by the Registrant on September 17, 1997 (File No.
333-35817).
|
|
|
(2)
|
Incorporated
by reference to Exhibit 3.1 attached to the Current Report on Form 8-K
filed by the Registrant on December 24,
2008
|
|
|
(3)
|
Incorporated
by reference to Exhibit 3.2 attached to the Current Report on Form 8-K
filed by the Registrant on December 3,
2008.
|
|
|
(4)
|
Incorporated
by reference to Exhibit 4.2 attached to the Current Report on Form 8-K
filed by the Registrant on December 24,
2008.
|
|
|
(5)
|
Incorporated
by reference to Exhibit 10.1 attached to the Current Report on Form 8-K
filed by the Registrant on December 24,
2008.
|
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
Hoquiam, State of Washington, on the 22nd day of January, 2009.
| |
TIMBERLAND BANCORP,
INC. |
| |
|
| |
|
| |
By: /s/Michael
R.
Sand
|
| |
Michael R. Sand |
| |
President and Chief Executive Officer |
| |
(Duly
Authorized Representative) |
POWER
OF ATTORNEY
Each
person whose signature appears below appoints Michael R. Sand or Dean J. Brydon,
or either of them, as his true and lawful attorney-in-fact and agent, for him
and in his 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 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/Michael
R. Sand
|
|
/s/Clarence
E. Hamre
|
|
Michael
R. Sand
|
|
Clarence
E. Hamre
|
|
President,
Chief Executive Officer and Director
(Principal
Executive Officer)
|
|
Chairman
of the Board
|
|
|
|
|
|
Date: January
22, 2009
|
|
Date: January
22, 2009
|
|
|
|
|
|
/s/Dean
J. Brydon
|
|
/s/Andrea
M. Clinton
|
|
Dean
J. Brydon
|
|
Andrea
M. Clinton
|
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
|
|
Director
|
|
|
|
|
|
Date: January
22, 2009
|
|
Date: January
22, 2009
|
|
|
|
|
|
/s/James
C. Mason
|
|
/s/Jon
C. Parker
|
|
James
C. Mason
|
|
Jon
C. Parker
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: January
22, 2009
|
|
Date:
January 22, 2009
|
|
|
|
|
|
/s/Ronald
A. Robbel
|
|
/s/David
A. Smith
|
|
Ronald
A. Robbel
|
|
David
A. Smith
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: January
22, 2009
|
|
Date: January
22, 2009
|
|
|
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
of Document
|
|
|
|
|
|
3.1
|
|
Articles
of Incorporation of the Registrant(1)
|
|
|
|
|
|
3.2
|
|
Articles
of Amendment to Articles of Incorporation of the
Registrant(2)
|
|
|
|
|
|
3.3
|
|
Bylaws
of the Registrant(3)
|
|
|
|
|
|
4.1
4.2
|
|
Warrant
to purchase shares of the Registrant’s common stock dated December 23,
2008(4)
Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated December 23, 2008 between the registrant and the
United States Department of the Treasury(5)
|
|
|
|
|
|
5.1
|
|
Opinion
of Breyer & Associates PC
|
|
|
|
|
|
23.1
|
|
Consent
of McGladrey & Pullen LLP
|
|
|
|
|
|
23.2
|
|
Consent
of Breyer & Associates PC (contained in its opinion filed as Exhibit
5.1)
|
|
|
|
|
|
24.1
|
|
Power
of attorney (contained in the signature page of the registration
statement)
|
|
________________
|
|
|
(1)
|
Incorporated
by reference to Exhibit 3.1 attached to the Registration Statement on Form
S-1 filed by the Registrant on September 17, 1997 (File No.
333-35817).
|
|
|
(2)
|
Incorporated
by reference to Exhibit 3.1 attached to the Current Report on Form 8-K
filed by the Registrant on December 24,
2008
|
|
|
(3)
|
Incorporated
by reference to Exhibit 3.2 attached to the Current Report on Form 8-K
filed by the Registrant on December 3,
2008.
|
|
|
(4)
|
Incorporated
by reference to Exhibit 4.2 attached to the Current Report on Form 8-K
filed by the Registrant on December 24,
2008.
|
|
|
(5)
|
Incorporated
by reference to Exhibit 10.1 attached to the Current Report on Form 8-K
filed by the Registrant on December 24,
2008.
|