Registration No. 333-_________
As filed with the Securities and Exchange Commission on December 16, 2009
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ESSA Bancorp, Inc.
(Exact Name of Registrant as Specified in its Charter)
Pennsylvania 20-8023072
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
200 Palmer Street
Stroudsburg, Pennsylvania 18360
(Address of Principal Executive Offices)
ESSA Bank & Trust 401(k) Plan
(Full Title of the Plan)
Copies to:
Mr. Gary S. Olson Marc P. Levy, Esquire
President and Chief Executive Officer Luse Gorman Pomerenk & Schick, P.C.
ESSA Bancorp, Inc. 5335 Wisconsin Ave., N.W., Suite 780
200 Palmer Street Washington, DC 20015-2035
Stroudsburg, Pennsylvania 18360 (202) 274-2000
(570) 421-0531
(Name, Address and Telephone
Number of Agent for Service)
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 Securities Exchange Act of 1934, as
amended. (Check one):
Large accelerated filer [ ] Accelerated filer [x] Non-accelerated filer [ ]
Smaller reporting company [ ]
(Do not check if a smaller reporting company)
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If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. [X]
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
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Participation Interests (1) __ __ (2)
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) Pursuant to Rule 457(h)(3) no registration fee is required to be paid.
--------------------------
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
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PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
This Registration Statement relates to the registration of an indeterminate
number of participation interests in the ESSA Bank & Trust 401(k) Plan (the
"Plan"). Documents containing the information required by Part I of the
Registration Statement have been or will be sent or given to participants in the
Plan, as specified Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed with the
Commission are hereby incorporated by reference in this Registration Statement:
a) The Company's Prospectus (Commission File No. 333-139157) filed with the
Commission on February 22, 2007 pursuant to Rule 424(b)(3) of the Securities
Act;
b) The Company's Annual Report on Form 10-K for the year ended September
30, 2009 (File No. 001-33384), filed with the Commission on December 11, 2009,
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended;
c) The Company's Form 11-K for the ESSA Bank & Trust 401(k) Plan for the
year ended December 31, 2008 (File No. 001-33384), filed with the Commission on
June 29, 2009, pursuant to Section 15(d) of the Securities Exchange Act of 1934,
as amended;
d) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since the end of the
year covered by the Annual Report on Form 10-K referred to in (a) above; and
e) The description of the Company's common stock contained in the
Registration Statement on Form 8-A filed with the Commission on March 27, 2007
(File No. 001-33384).
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended, after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed incorporated by reference into this Registration Statement and to be a
part thereof from the date of the filing of such documents. Any statement
contained in the documents incorporated, or deemed to be incorporated, by
reference herein or therein shall be deemed to be modified or superseded for
purposes of this Registration Statement and the prospectus to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is, or is deemed to be, incorporated by reference herein or
therein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement and the prospectus.
All information appearing in this Registration Statement and the prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities
Not applicable.
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Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Indemnification of Directors and Officers of ESSA Bancorp, Inc. Article VI
of the bylaws of ESSA Bancorp, Inc., a Pennsylvania corporation (the
"Corporation") set forth circumstances under which directors, officers,
employees and agents of the Corporation may be insured or indemnified against
liability which they incur in their capacities as such.
Article VI; Indemnification
6.1 Persons Covered. Subject to, and in accordance with, the provisions of
this Article VI, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, including actions by or in the right of
the Corporation, whether civil, criminal, administrative, or investigative, by
reason of the fact that such person is or was a director, officer, employee,
fiduciary, trustee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee, fiduciary, trustee,
or agent of another corporation, partnership, joint venture, trust, or other
enterprise.
6.2 Derivative Actions.
(a) In the case of a threatened, pending, or completed action or suit by or
in the right of the Corporation against a person named in Section 6.1 by reason
of such person holding a position named in Section 6.1, the Corporation shall
indemnify such person if such person satisfies the standard in Section 6.2(b),
for expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of the action or suit.
(b) In the case of a threatened, pending, or completed action or suit by or
in the right of the Corporation, a person named in Section 6.1 shall be
indemnified only if:
(1) such person is successful on the merits or otherwise; or
(2) such person acted in good faith in the transaction that is the subject
of the suit or action, and in a manner reasonably believed to be in, or not
opposed to, the best interests of the Corporation. However, such person shall
not be indemnified in respect of any claim, issue, or matter as to which such
person has been adjudged liable to the Corporation unless (and only to the
extent that) the court of common pleas or the court in which the suit was
brought shall determine, upon application, that despite the adjudication of
liability but in view of all the circumstances, such person is fairly and
reasonably entitled to indemnity for such expenses as the court shall deem
proper.
6.3 Third-Party Actions.
(a) In case of a threatened, pending, or completed suit, action, or
proceeding (whether civil, criminal, administrative, or investigative), other
than a suit by or in the right of the Corporation, together hereafter referred
to as a third-party action, against a person named in Section 6.1 by reason of
such person holding a position named in Section 6.1, the Corporation shall
indemnify such person if such person satisfies the standard in Section 6.3(b),
for amounts actually and reasonably incurred by such person in connection with
the defense or settlement of the third-party action, including, but not limited
to (i) expenses (including attorneys' fees), (ii) amounts paid in settlement,
(iii) judgments, and (iv) fines.
(b) In case of a third-party action, a person named in Section 6.1 shall be
indemnified only if:
(1) such person is successful on the merits or otherwise; or
(2) such person acted in good faith in the transaction that is the subject
of the third-party action and in a manner such person reasonably believed to be
in, or not opposed to, the best interests of the Corporation and, with respect
to any criminal action or proceeding, such person had no reasonable cause to
believe such person's conduct was unlawful. The termination of a third-party
action by judgment, order, settlement, conviction, or upon a pleas of nolo
contendere or its equivalent shall not, in itself, create a presumption that the
person failed to satisfy the standard of this Section 6.3(b).
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6.4 Determination That Standard Has Been Met. A determination that the
standard of either Section 6.2(b) or 6.3(b) has been satisfied may be made by a
court, or, except as stated in the record sentence of Section 6.2(b), the
determination may be made by:
(1) the Board of Directors by a majority vote of a quorum consisting
of directors of the Corporation who were not parties to the action, suit,
or proceeding;
(2) if such a quorum is not obtainable or if obtainable and a majority
of a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or
(3) the shareholders of the Corporation.
6.5 Proration. Anyone making a determination under Section 6.4 may
determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
6.6 Advancement of Expenses. Reasonable expenses incurred by a director,
officer, employee, or agent of the Corporation in defending a civil or criminal
action, suit, or proceeding described in Section 6.1 shall be paid by the
Corporation in advance of the final disposition of such action, suit, or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that the person is not
entitled to be indemnified by the Corporation.
6.7 Other Rights. The indemnification and advancement of expenses provided
by or pursuant to this Article VI shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any insurance or other agreement, vote of shareholders or
directors, or otherwise, both as to actions in their official capacity and as to
actions in another capacity while holding an office, and shall continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such person.
6.8 Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of this Article VI.
6.9 Security Fund; Indemnity Agreements. By action of the Board of
Directors (notwithstanding their interest in the transaction), the Corporation
may create and fund a trust fund or fund of any nature, and may enter into
agreements with its officers, directors, employees, and agents for the purpose
of securing or insuring in any manner its obligation to indemnify or advance
expenses provided for in this Article VI.
6.10 Modification. The duties of the Corporation to indemnify and to
advance expenses to any person as provided in this Article VI shall be in the
nature of a contract between the Corporation and each such person, and no
amendment or repeal of any provision of this Article VI, and no amendment or
termination of any trust fund or other fund created pursuant to Section 6.9
hereof, shall alter to the detriment of such person the right of such person to
the advancement of expenses or indemnification related to a claim based on an
act or failure to act which took place prior to such amendment, repeal, or
termination.
6.11 Proceedings Initiated by Indemnified Persons. Notwithstanding any
other provision in this Article VI, the Corporation shall not indemnify a
director, officer, employee, or agent for any liability incurred in an action,
suit, or proceeding initiated by (which shall not be deemed to include
counter-claims or affirmative defenses) or participated in as an intervenor or
amicus curiae by the person seeking indemnification unless such initiation of or
participation in the action, suit, or proceeding is authorized, either before or
after its commencement, by the affirmative vote of a majority of the directors
then in office.
6.12 Savings Clause. If this Article VI or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee, and
agent of the Corporation as to costs, charges, and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the Corporation, to the
fullest extent permitted by any applicable portion of this Article VI that shall
not have been invalidated and to the fullest extent permitted by applicable law.
If the laws of the Commonwealth of Pennsylvania are amended to permit
further indemnification of the directors, officers, employees, and agents of the
Corporation, then the Corporation shall indemnify such persons to the fullest
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extent permitted by law. Any repeal or modification of this Article VI by the
Board of Directors or the shareholders of the Corporation shall not adversely
affect any right or protection of a director, officer, employee, or agent
existing at the time of such repeal or modification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
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4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Independent Registered Public Accounting Firm Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
99 Prospectus Supplement **
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* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form S-1 (File No. 333-139157) originally filed by the Company under the
Securities Act with the Commission on December 7, 2006, and all amendments
or reports filed for the purpose of updating such description.
** Incorporated by reference to the Pre-effective Amendment No. 1 to Form S-1
(Commission File No. 333-139157) filed by the Company under the Securities
Act with the Commission on January 22, 2007.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement;
2. That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
3. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
Plan;
4. That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Company's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in the Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
5. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
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such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Stroudsburg, Commonwealth
of Pennsylvania, on this 15th day of December, 2009.
ESSA BANCORP, INC.
By: /s/ Gary S. Olson
Gary S. Olson
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of ESSA Bancorp, Inc. (the
"Company") hereby severally constitute and appoint Gary S. Olson, as our true
and lawful attorney and agent, to do any and all things in our names in the
capacities indicated below which said Gary S. Olson may deem necessary or
advisable to enable the Company to comply with the Securities Act of 1933, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration of participation interests under
the ESSA Bank & Trust 401(k) Plan, including specifically, but not limited to,
power and authority to sign for us in our names in the capacities indicated
below the registration statement and any and all amendments (including
post-effective amendments) thereto; and we hereby approve, ratify and confirm
all that said Gary S. Olson shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signatures Title Date
---------- ----- ----
/s/ Gary S. Olson President and Chief Executive Officer December 15, 2009
------------------------------------ (Principal Executive Officer)
Gary S. Olson
/s/ Allan A. Muto Executive Vice President and December 15, 2009
------------------------------------ Chief Financial Officer
Allan A. Muto (Principal Financial and Accounting
Officer)
/s/ John E. Burrus Director December 15, 2009
------------------------------------
John E. Burrus
/s/ William P. Douglass Director December 15, 2009
------------------------------------
William P. Douglass
/s/ Daniel J. Henning Director December 15, 2009
------------------------------------
Daniel J. Henning
/s/ Frederick E. Kutteroff Director December 15, 2009
------------------------------------
Frederick E. Kutteroff
/s/ Robert C. Selig, Jr. Director December 15, 2009
------------------------------------
Robert C. Selig, Jr.
/s/ John S. Schoonover, Jr. Director December 15, 2009
------------------------------------
John S. Schoonover, Jr.
/s/ William A. Viechnicki Director December 15, 2009
------------------------------------
William A. Viechnicki
/s/ Elizabeth B. Weekes Director December 15, 2009
------------------------------------
Elizabeth B. Weekes
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the Plan) have duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Stroudsburg, Commonwealth of Pennsylvania,
on December 15, 2009.
ESSA Bank & Trust 401(k) Plan
By: /s/ Thomas J. Grayuski
---------------------------
Title: Plan Administrator
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EXHIBIT INDEX
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
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4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Independent Registered Public Accounting Firm Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
99 Prospectus Supplement **
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* Incorporated by reference to Exhibit 4 to the Registration Statement
on Form S-1 (File No. 333-139157) originally filed by the Company
under the Securities Act with the Commission on December 7, 2006, and
all amendments or reports filed for the purpose of updating such
description.
** Incorporated by reference to the Pre-effective Amendment No. 1 to Form
S-1 (Commission File No. 333-139157) filed by the Company under the
Securities Act with the Commission on January 22, 2007.