g-tarps3.htm
As filed
with the Securities and Exchange Commission on January 2, 2009
Registration
No. 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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GREAT
SOUTHERN BANCORP, INC.
(Exact
name of registrant as specified in its
charter)
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Maryland
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43-1524856
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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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1451
E. Battlefield
Springfield,
Missouri 65804
(417)
887-4400
(Address,
including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Joseph
W. Turner
President
and Chief Executive Officer
Great
Southern Bancorp, Inc.
1451
E. Battlefield
Springfield,
Missouri 65804
(417)
887-4400
(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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Martin
L. Meyrowitz, P.C.
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(3)
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Fixed
Rate Cumulative Perpetual Preferred
Stock,
Series A (2)
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58,000
shares
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$1,000.00(1)
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$58,000,000
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$2,280
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Depositary
Shares (2)
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---
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---
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---
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---
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Common
Stock (3)
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909,091
shares
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$10.30(4)
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$9,363,638
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368
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Warrants
(3)
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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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$67,363,638
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$2,648
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(1)
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Represents
the liquidation preference amount per share of the preferred stock being
registered for resale (the “Series A Preferred Stock”), which we sold to
the United States Department of the Treasury (“Treasury”) pursuant to
Treasury’s Troubled Asset Relief Program Capital Purchase
Program.
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(2)
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In
the event Treasury requests that we deposit the shares of Series A
Preferred Stock with a depositary pursuant to a depositary arrangement,
depositary shares evidencing fractional shares of the Series A Preferred
Stock may be sold pursuant to this registration statement in lieu of whole
shares of Series A Preferred Stock.
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(3)
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The
shares of common stock being registered are purchasable upon exercise of
the warrants being registered, which we issued to Treasury concurrent with
the sale of the Series A Preferred Stock to Treasury as described in
footnote (1). 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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(4)
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Estimated
in accordance with Rule 457(c), calculated on the basis of $10.30 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 December 30,
2008.
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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 2,
2009
PROSPECTUS
Great
Southern Bancorp, Inc.
58,000
Shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
Liquidation
Preference Amount $1,000 Per Share
(or
Depositary Shares Evidencing Fractional Interests in Such
Shares)
909,091
Shares of Common Stock and a Warrant to Purchase Such
Shares
This prospectus relates to (i) 58,000
shares of our Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
liquidation preference amount $1,000 per share, or, in the event such shares are
deposited with a depositary as described in this prospectus, depositary shares
evidencing fractional interests in such shares, (ii) a warrant, or portions
thereof, which expires on December 5, 2018, to purchase 909,091 shares of our
common stock at an exercise price of $9.57 per share, subject to adjustment as
described in this prospectus, and (iii) the shares of our common stock which may
be purchased upon exercise of the warrant. The shares of the Series A
Preferred Stock and the warrant were issued by us on December 5, 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 Select
Market under the symbol
“GSBC.” On December 30, 2008, the closing sale price of our
common stock on the NASDAQ
Global Select Market was
$10.36 per share. Neither the Series A
Preferred Stock nor the warrant is currently listed on any established
securities exchange or quotation system and we do not intend to seek such a
listing for these securities unless we are requested to do so by
Treasury.
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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.
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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
Page
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ABOUT
THIS PROSPECTUS
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iii
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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iii
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WHERE
YOU CAN FIND MORE INFORMATION
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iv
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PROSPECTUS
SUMMARY
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1
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RISK
FACTORS
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2
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USE
OF PROCEEDS
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14
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RATIOS OF EARNINGS TO FIXED
CHARGES
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14
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REGULATORY
CONSIDERATIONS
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DESCRIPTION
OF SERIES A PREFERRED STOCK
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DESCRIPTION
OF DEPOSITARY SHARES
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DESCRIPTION
OF WARRANT
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DESCRIPTION
OF CAPITAL STOCK
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SELLING
SECURITYHOLDERS
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25
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PLAN
OF DISTRIBUTION
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26
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LEGAL
MATTERS
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28
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EXPERTS
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28
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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 described in 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 Great Southern Bancorp, Inc. and its consolidated subsidiaries and all references in this prospectus
to “Great Southern Bancorp” mean Great Southern Bancorp, Inc. excluding its
subsidiaries, in each case unless otherwise expressly stated or the context
otherwise requires. When we refer to “Great Southern Bank” in this prospectus, we
mean our subsidiary, Great
Southern Bank, a Missouri-chartered trust company. We sometimes refer
to Great Southern Bank as “Great Southern” or 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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changes
in economic conditions, either nationally or in our market
area;
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fluctuations
in interest rates;
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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;
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fluctuations
in real estate values and both residential and commercial real estate
market conditions;
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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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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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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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costs
and effects of litigation, including settlements and judgments;
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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 year ended December 31,
2007
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• Quarterly
Reports on Form
10-Q
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For the quarters ended March 31, 2008,
June 30, 2008 and
September 30, 2008
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• Current
Reports on Form
8-K
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Filed on February 6, 2008, February 8,
2008, May 12, 2008, June 20, 2008, August 8, 2008, September 12, 2008,
October 27, 2008, November 17, 2008, November 19, 2008, December 9, 2008,
December 12, 2008 and December 19,
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 1, 1989, and all amendments or reports filed for the purpose of
updating such description.
These documents are available without
charge to you on the Internet at www.greatsouthernbank.com or if you call or write to:
Investor Relations, Great
Southern Bancorp, Inc., 1451 East Battlefield, Springfield,
Missouri 65804-9009,
telephone: (417) 887-4400. 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.
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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.
Great
Southern Bancorp, Inc.
Great Southern Bancorp, Inc. is a
bank holding company and financial holding company incorporated under the
laws of the State of Maryland. We conduct our business
primarily through our wholly owned subsidiary, Great Southern Bank, a
Missouri-chartered trust company (the equivalent of a commercial bank
charter) that was originally formed in 1923. Headquartered in
Springfield, Missouri, the Bank operates 39 retail
banking centers and 170 automated teller machines throughout
southwest, west and
central Missouri. The Bank also serves lending needs through
loan production offices in Overland Park, Kansas; Rogers, Arkansas and St.
Louis, Missouri. The Bank is primarily engaged in the business of originating
residential and commercial real estate loans, construction loans, other
commercial loans and consumer loans and funding these loans through
deposits attracted from the general public, brokered deposits and
borrowings from the Federal Home Loan Bank of Des Moines and other
sources. Through its
subsidiaries, the Bank also offers insurance, travel, discount brokerage
and related services.
At September 30, 2008, we had consolidated total assets of $2.5 billion, net loans of $1.8
billion, deposits of $1.9 billion and
stockholders’ equity of $168.8 million.
Our common stock is traded on the
NASDAQ Global Select Market under the ticker symbol “GSBC.” Our
principal executive offices are located at 1451 East Battlefield,
Springfield, Missouri 65804-9009. Our telephone number is (417) 887-4400.
Securities
Being Offered
On December 5, 2008, pursuant to
the Troubled Asset Relief Program Capital Purchase Program of the United
States Department of the Treasury (“Treasury”), we sold to Treasury 58,000
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 $58.0 million, and concurrently
issued to Treasury a ten-year warrant to purchase up to 909,091shares of
our common stock at an exercise price of $9.57 per share. The
issuance of the Series A Preferred Stock and the warrant 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 shares of the Series A Preferred Stock, the
warrant and the shares of our common stock underlying the
warrant. This registration includes depositary shares,
representing fractional interests in the Series A Preferred Stock, which
may be resold pursuant to this prospectus in lieu of whole shares of
Series A Preferred Stock in the event Treasury requests that we deposit
the Series A Preferred Stock held by Treasury with a depositary under a
depositary arrangement entered into in accordance with the securities
purchase agreement. See “Description of Depositary
Shares.” The terms of the Series A Preferred Stock, the warrant
and our common stock are described under “Description of Series A
Preferred Stock,” “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.”
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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.
Risks
Relating to Great Southern
Negative developments beginning in the
latter half of 2007 in the sub-prime mortgage market and the securitization
markets for such loans, together with substantial volatility in oil prices and other factors, have
resulted in uncertainty in the financial markets in general and a related
general economic downturn, which have continued in 2008. Dramatic
declines in the housing market, with decreasing home prices and
increasing delinquencies
and foreclosures, have negatively impacted the credit performance of mortgage
and construction loans and resulted in significant write-downs of assets by many
financial institutions. In addition, the values of real estate
collateral supporting many loans have declined and may
continue to decline. General downward economic trends, reduced availability
of commercial credit and increasing unemployment have negatively impacted the
credit performance of commercial and consumer credit, resulting in additional
write-downs. Concerns over the stability of the financial markets and
the economy have resulted in decreased lending by financial institutions to
their customers and to each other. This market turmoil and tightening
of credit has led to increased commercial and consumer
deficiencies, lack of customer confidence, increased market volatility and
widespread reduction in general business activity. Competition among depository
institutions for deposits has increased significantly. Financial
institutions
have experienced decreased access to deposits
or borrowings.
The resulting economic pressure on
consumers and businesses and the lack of confidence in the financial markets may
adversely affect our business, financial condition, results of
operations and stock
price.
Our ability to assess the
creditworthiness of customers and to estimate the losses inherent in our credit
exposure is made more complex by these difficult market and economic
conditions. As a result of the foregoing factors, there is
a potential for new federal
or state laws and regulations regarding lending and funding practices and
liquidity standards, and bank regulatory agencies are
expected to be very aggressive in responding to concerns and trends identified
in examinations. This increased government action may
increase our costs and limit our ability to pursue certain business opportunities. We
also may be required to pay even higher Federal Deposit Insurance Corporation
(“FDIC”) premiums than the recently increased
level, because financial
institution failures resulting from the depressed market conditions have
depleted and may continue to deplete the deposit insurance fund and reduce its
ratio of reserves to insured deposits.
We do not believe these
difficult conditions are likely to improve in the near
future. A worsening of these conditions would likely exacerbate the
adverse effects of these difficult market and economic conditions on us, our
customers and the other financial institutions in our market. As a
result, we may experience increases in foreclosures,
delinquencies and customer bankruptcies, as well as more restricted access to
funds.
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 Series A Preferred Stock
and warrant offered by this prospectus were 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.
Our lending and deposit gathering
activities have been historically concentrated primarily in the Springfield and
Branson, Missouri areas. Our success depends on the general economic condition
of Springfield and Branson and their surrounding areas. Although we believe the economy in
these areas has been favorable, we do not know whether these conditions will
continue. Our greatest concentration of loans and deposits is in the Greater
Springfield area. With a population of approximately 407,000, the Greater Springfield area is the
third largest metropolitan area in Missouri.
Another large concentration of loans
contiguous to Springfield is in the Branson area. The region is a vacation and
entertainment center, attracting tourists to its lakes, theme parks, resorts, country music and
novelty shows and other recreational facilities. The Branson area experienced
rapid growth in the early 1990's, with stable to slightly negative growth trends
occurring in the late 1990s and into the early 2000s. Branson is currently experiencing significant
growth again as a result of a large retail, hotel, convention center project
which has been constructed in Branson's historic downtown. This project has
created hundreds of new jobs in the area. In addition, several large national retailers have opened
new stores in Branson. At September 30, 2008, approximately 12% of our loan portfolio consisted of loans
in the two county region that includes the Branson area.
Adverse changes in the regional and
general economic conditions
could reduce our growth rate, impair our ability to collect loans, increase loan
delinquencies, increase problem assets and foreclosure, increase claims and
lawsuits, decrease the demand for the Bank’s products and services, and decrease
the value of collateral for
loans, especially real estate, thereby having a material adverse effect on our
financial condition and results of operations.
Our
allowance for loan losses may prove to be insufficient to absorb potential
losses in our loan portfolio.
Lending money is a substantial part of our
business. However, every loan we make carries a certain risk of non-payment.
This risk is affected by, among other things:
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cash flow of the borrower and/or
the project being financed;
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in the case of a collateralized
loan, the changes and uncertainties as to the future value of the
collateral;
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the credit history of a
particular borrower;
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changes in economic and industry
conditions; and
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the duration of the
loan.
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We maintain an allowance for loan losses
that we believe is a
reasonable estimate of known and inherent losses within the loan portfolio. We
make various assumptions and judgments about the collectibility of our loan
portfolio. Through a periodic review and consideration of the loan portfolio,
management determines the amount of the allowance for loan
losses by considering general market conditions, credit quality of the loan
portfolio, the collateral supporting the loans and performance of customers
relative to their financial obligations with us. The amount of future losses is susceptible to changes
in economic, operating and other conditions, including changes in interest
rates, which may be beyond our control, and these losses may exceed current
estimates. Growing loan portfolios are, by their nature, unseasoned. As a result, estimating loan loss
allowances for growing portfolios is more difficult, and may be more susceptible
to changes in estimates, and to losses exceeding estimates, than more seasoned
portfolios. We cannot fully predict the amount or timing of losses or whether the loss allowance
will be adequate in the future. Excessive loan losses and significant additions
to our allowance for loan losses could have a material adverse impact on our
financial condition and results of operations.
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 might have a
material adverse effect on our financial condition and results of
operations.
Our
loan portfolio possesses increased risk due to our relatively high concentration
of commercial and residential construction, commercial real estate, multi-family
and other commercial loans.
Our commercial and residential
construction, commercial real estate, multi-family and other commercial loans
accounted for approximately 74% of our total loan portfolio as
of September 30, 2008. Generally, 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. At September 30, 2008, we had $161.8 million of loans secured by healthcare
facilities, $170.4 million of loans secured by apartments,
$120.2 million of loans secured by motels,
$101.4 million of loans secured by
condominiums and $112.4 million of loans secured by residential
subdivisions and $121.2 million of loans secured by
retail related
projects, which are particularly sensitive to
certain risks including the following:
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large loan balances owed by a
single borrower;
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payments that are dependent on
the successful operation of the project;
and
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loans that are more directly
impacted by adverse conditions in the real estate market or the economy
generally.
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The risks associated with
construction lending include the borrower’s inability to complete the
construction process on time and within budget, the sale of the project within
projected absorption periods, the economic risks associated with real estate
collateral, and the potential of a rising interest rate environment. These loans
may include financing the development and/or construction of residential
subdivisions. This activity may involve financing land purchase, infrastructure
development (i.e. roads, utilities, etc.), as well as construction of residences
or multi-family dwellings for subsequent sale by the developer/builder. Because
the sale of developed properties is critical to the success of developer
business, loan repayment may be especially subject to the volatility of real
estate market values. Management has established underwriting and monitoring
criteria to help minimize the inherent risks of commercial real estate
construction lending. However, there is no guarantee that these controls and
procedures will avoid all losses on this type of lending.
Commercial and multi-family real estate
lending typically involves higher loan principal amounts and the repayment of
the loans generally is
dependent, in large part, on the successful operation of the property securing
the loan or the business conducted on the property securing the loan. Other
commercial loans are typically made on the basis of the borrower's ability to
make repayment from the cash flow of the borrower's business
or investment. These loans may therefore be more adversely affected by
conditions in the real estate markets or in the economy generally. For example,
if the cash flow from the borrower's project is reduced due to leases not being obtained or renewed, the
borrower's ability to repay the loan may be impaired. In addition, many
commercial and multi-family real estate loans are not fully amortized over the
loan period, but have balloon payments due at maturity. A borrower's ability to make a balloon payment
typically will depend on being able to either refinance the loan or completing a
timely sale of the underlying property.
We plan to continue to originate
commercial real estate and construction loans based on economic and market conditions. Because of the
increased risks related to these types of loans, we may determine it necessary
to increase the level of our provision for loan losses. Increased provisions for
loan losses would adversely impact our operating results.
Due to the high level of competition for
deposits in our market, we utilize a sizable amount of certificates of deposit
obtained through deposit
brokers and advances from the Federal Home Loan Bank of Des Moines to help fund
our asset base. Brokered deposits are marketed through national brokerage firms
that solicit funds from their customers for deposit in banks, including our
bank. Brokered deposits and Federal Home Loan Bank
advances may generally be more sensitive to changes in interest rates and
volatility in the capital markets than retail deposits attracted through our
branch network, and our reliance on these sources of funds increases
the sensitivity of our portfolio to these
external factors. At September 30, 2008, we had $898.2 million in brokered deposits and
$122.8 million in Federal Home Loan Bank
advances.
Bank regulators can restrict our access
to these sources of funds in certain circumstances. For example, if the
Bank’s regulatory capital ratios declined
below the “well capitalized” status, banking regulators would
require the Bank to obtain their approval prior to obtaining or renewing
brokered deposits. The regulators might not approve our acceptance of brokered
deposits in amounts that we desire or at all. In addition, the availability of
brokered deposits and the rates paid on these brokered deposits may be volatile
as the balance of the supply of and the demand for brokered deposits changes. Market credit
and liquidity concerns may also impact the availability and cost of brokered
deposits. Similarly, Federal Home Loan Bank advances are only available to
borrowers that meet certain conditions. If the Bank were to cease
meeting these conditions, our access to
Federal Home Loan Bank advances could be significantly reduced or
eliminated.
We rely on these sources of funds
because we believe that generating funds through brokered deposits and Federal
Home Loan Bank advances in many instances decreases our cost of
funds, relative to the cost of generating and retaining retail deposits through
our branch network. If our access to brokered deposits or Federal Home Loan Bank
advances were reduced or eliminated for whatever reason, the resulting decrease in our net interest
income or limitation on our ability to fund additional loans would adversely
affect our business, financial condition and results of
operations.
Certain Federal Home Loan Banks,
including Des Moines, have experienced lower earnings from time to time and
paid out lower dividends to its members. Future problems at the Federal Home
Loan Banks may impact the collateral necessary to secure borrowings and limit
the borrowings extended to its member banks, as well as require additional capital contributions by its
member banks. Should this occur, Great Southern’s short term liquidity needs could be
negatively impacted. Should Great Southern be restricted from using Federal Home
Loan Bank advances due to weakness in the system or with the Federal Home Loan Bank of
Des Moines, Great Southern may be forced to find alternative funding sources.
These alternative funding sources may include the utilization of existing lines
of credit with third party banks or the Federal Reserve Bank along with seeking other lines of
credit, borrowing under repurchase agreement lines, increasing deposit rates to
attract additional funds, accessing additional brokered deposits, or selling
certain investment securities categorized as available-for-sale in order to maintain adequate levels of
liquidity. At September
30, 2008, the Bank owned $8.4 million of Federal Home Loan Bank of
Des Moines stock, which paid an annualized dividend approximating 3.00% for the third quarter of 2008. The Federal Home Loan Bank of Des Moines may eliminate or
reduce dividend payments at any time in the future in order for it to maintain
or restore its retained earnings.
Our
future success is dependent on our ability to compete effectively in the highly
competitive banking industry.
We face substantial competition in all
phases of our operations from a variety of different competitors. Our future
growth and success will depend on our ability to compete effectively in this
highly competitive environment. To date, we have grown our business successfully by focusing
on our geographic market and emphasizing the high level of service and
responsiveness desired by our customers. We compete for loans, deposits and
other financial services with other commercial banks, thrifts,
credit unions, consumer finance companies,
insurance companies and brokerage firms. Many of our competitors offer products
and services which we do not offer, and many have substantially greater
resources, name recognition and market presence that benefit them in attracting business. In addition,
larger competitors (including certain national banks that have a significant presence in the
Bank’s market area) may be able to price loans
and deposits more aggressively than we do, and smaller and newer competitors may
also be more aggressive in
terms of pricing loan and deposit products than us in order to obtain a larger
share of the market. As we have grown, we have become increasingly dependent on
outside funding sources, including funds borrowed from the Federal
Home Loan Bank and brokered deposits, where
we face nationwide competition. Some of the financial institutions and financial
services organizations with which we compete are not subject to the same degree
of regulation as is imposed on bank holding companies, federally insured state-chartered banks
and national banks and federal savings banks. As a result, these non-bank
competitors have certain advantages over us in accessing funding and in
providing various services.
We also experience competition from a
variety of institutions
outside of our market area. Some of these institutions
conduct business primarily over the Internet and may thus be able to realize
certain cost savings and offer products and services at more favorable rates and
with greater convenience to
the customer.
Our
business may be adversely affected by the highly regulated environment in which
we operate, including the various capital adequacy guidelines we are required to
meet.
We are subject to extensive federal and
state legislation, regulation, examination and supervision.
Recently enacted, proposed and future legislation and regulations have had, will
continue to have, or may have a material adverse effect on our business and
operations. Our success depends on our continued ability to maintain compliance with these regulations.
Some of these regulations may increase our costs and thus place other financial
institutions in stronger, more favorable competitive positions. We cannot
predict what restrictions may be imposed upon us with future legislation. See “Item 1.-The Company -Government
Supervision and Regulation” in our Annual Report on Form 10-K for the year ended December 31, 2007,
which is incorporated herein by reference. See “Where You Can Find More
Information.”
We and the Bank are required to meet certain regulatory
capital adequacy guidelines and other regulatory requirements imposed by the
FRB, the FDIC and the Missouri Division of Finance. If we or the Bank fails to meet these minimum
capital guidelines and other regulatory requirements, our financial condition and
results of operations could be materially and adversely affected and could
compromise our status as a financial holding company.
See “Item 1 -The Company -Government
Supervision and Regulation” in our Annual Report on Form
10-K for the year ended December 31, 2007,
which is incorporated herein by reference, for descriptions of the capital
guidelines applicable to
us and the
Bank. See
“Where You Can Find More
Information.”
We
may be adversely affected by interest rate changes.
Our earnings are largely dependent upon
our net interest income. Net interest income is the difference between interest
income earned on interest-earning assets such as loans and securities and
interest expense paid on interest-bearing liabilities such as deposits and borrowed funds.
Interest rates are highly sensitive to many factors that are beyond our control,
including general economic conditions and policies of various governmental and
regulatory agencies, in particular, the Federal Reserve. Changes in monetary policy, including
changes in interest rates, could influence not only the interest we receive on
loans and securities and the amount of interest we pay on deposits and
borrowings, but such changes could also affect (i) our ability to
originate loans and obtain deposits, (ii)
the fair value of our financial assets and liabilities, and (iii) the average
duration of our loan and mortgage-backed securities portfolios. If the interest
rates paid on deposits and other borrowings increase at a faster rate than the interest rates
received on loans and other investments, our net interest income, and therefore
earnings, could be adversely affected. Earnings could also be adversely affected
if the interest rates received on loans and other investments fall more quickly than the interest
rates paid on deposits and other borrowings.
We generally seek to maintain a neutral
position in terms of the volume of assets and liabilities that mature or
re-price during any period. As such, Great Southern has adopted asset and liability management
strategies to attempt to minimize the potential adverse effects of changes in
interest rates on net interest income, primarily by altering the mix and
maturity of loans, investments and funding sources, including
interest rate swaps, so that it may reasonably
maintain its net interest income and net interest margin. However, interest rate
fluctuations, the level and shape of the interest rate yield curve, loan
prepayments, loan production and deposit flows are constantly changing and influence the ability to
maintain a neutral position. Accordingly, we may not be successful in
maintaining a neutral position and, as a result, our net interest margin may be
adversely impacted.
We
may elect or be compelled to seek additional capital in the future, but that
capital may not be available when it is needed.
We are required by federal and state
regulatory authorities to maintain adequate levels of capital to support our
operations. In addition, we may elect to raise additional
capital to support our
business or to finance acquisitions, if any, or we may otherwise elect
or be required to raise additional
capital. In that regard, a number of financial institutions have
recently raised considerable amounts of capital in response to a deterioration in their results of
operations and financial condition arising from the turmoil in the mortgage loan
market, deteriorating economic conditions, declines in real estate values and
other factors. Should we be required by regulatory
authorities to raise additional capital, we may seek
to do so through the issuance of, among other things, our common stock or
preferred stock.
Our ability to raise additional capital,
if needed, will depend on conditions in the capital markets, economic conditions
and a number of other
factors, many of which are outside our control, and on our financial
performance. Accordingly, we cannot assure you of our ability to raise
additional capital if needed or on terms acceptable to us. If we cannot raise
additional capital when needed, it may have a material
adverse effect on our financial condition, results of operations and
prospects.
Our
exposure to operational risks may adversely affect us.
Similar to other financial institutions,
we are exposed to many types of
operational risk, including
reputational risk, legal and compliance risk, the risk of fraud or theft by
employees or outsiders, the risk that sensitive customer or company data is compromised, unauthorized
transactions by employees or operational errors, including clerical or record-keeping errors. If
any of these risks occur, it could result in material adverse consequences for
us.
We
continually encounter technological change, and we may have fewer resources than
many of our competitors to continue to invest in technological
improvements.
The financial services industry is
undergoing rapid technological changes, with frequent introductions of new
technology-driven products and services. In addition to better serving
customers, the effective use of technology increases efficiency and enables financial
institutions to reduce costs. Our future success will depend, in part, upon our
ability to address the needs of our clients by using technology to provide
products and services that will satisfy client demands for convenience, as well as to create
additional efficiencies in our operations. Many of our competitors have
substantially greater resources to invest in technological improvements. We may
not be able to effectively implement new technology-driven products and
services or be successful in marketing
these products and services to our clients.
As a service to our clients, we
currently offer an Internet PC banking product. Use of this service involves the
transmission of confidential information over public networks. We cannot be sure that advances in
computer capabilities, new discoveries in the field of cryptography or other
developments will not result in a compromise or breach in the commercially
available encryption and authentication technology that we use to protect our clients' transaction data. If
we were to experience such a breach or compromise, we could suffer losses and
our operations could be adversely affected.
Our
accounting policies and methods impact how we report our financial condition and
results of operations. Application of these policies and methods may require
management to make estimates about matters that are uncertain.
Our accounting policies and methods are
fundamental to how we
record and report
our financial condition and results of
operations. Our management must exercise judgment in
selecting and applying many of these accounting policies and methods so they
comply with generally accepted accounting principles and reflect
management’s judgment of the most appropriate
manner to report our financial condition and results of
operations. In some cases, management must select the accounting policy or
method to apply from two or more alternatives, any of which might be reasonable
under the circumstances yet might result in our reporting materially different amounts than would have
been reported under a different alternative. For a description of our significant
accounting policies, see Note 1 of the Notes to Consolidated Financial
Statements contained in our
Annual Report on Form 10-K for the year ended December 31, 2007, which is
incorporated herein by reference. See “Where You Can Find More
Information.” These accounting policies are critical
to presenting our
financial condition and
results of operations. They may require management to make difficult, subjective or complex
judgments about matters that are uncertain. Materially different amounts could
be reported under different conditions or using different
assumptions.
Changes
in accounting standards could materially impact our consolidated financial
statements.
The accounting standard setters,
including the Financial Accounting Standards Board, SEC and other regulatory bodies, from time
to time may change the financial accounting and reporting standards that govern
the preparation of our
consolidated financial statements. These
changes can be hard to predict and can materially impact how we record and report our financial condition and results of
operations. In some cases, we could be required to apply a new or
revised standard retroactively, resulting in changes to previously
reported financial results, or a cumulative charge to retained
earnings.
Our
internal controls may be ineffective.
We regularly review and update our
internal controls, disclosure controls and procedures and corporate governance policies and procedures. As a
result, we may incur increased costs to maintain and improve our controls and
procedures. Any system of controls, however well designed and operated, is based
in part on certain assumptions and can provide only reasonable, not absolute, assurances that
the objectives of the system are met. Any failure or circumvention of our
controls or procedures or failure to comply with regulations related to controls
and procedures could have a material adverse effect on our business, results of operations or financial
condition.
We
rely on dividends from the Bank for substantially all of our
revenue.
Great Southern Bancorp receives
substantially all of its revenue as dividends from the Bank. Federal
and state regulations limit the amount of dividends that the Bank may pay to
Great Southern Bancorp. See “Regulatory
Considerations.” In the event the Bank becomes unable to pay
dividends to Great Southern Bancorp, Great Southern Bancorp may not be able to
service its debt, pay its other obligations or pay dividends on the Series A
Preferred Stock or our common stock. Accordingly, our inability to
receive dividends from the Bank could also have a material adverse effect on our
business, financial condition and results of operations and the value of your
investment in the Series A Preferred Stock or our common
stock.
Risks
Relating to Both the Series A Preferred Stock and Our Common Stock
The
Series A Preferred Stock is equity and is subordinate to all of our existing and
future indebtedness; regulatory and contractual restrictions may limit or
prevent us from paying dividends on the Series A Preferred Stock and our common
stock; and the Series A Preferred Stock places no limitations on the amount of
indebtedness we and our subsidiaries may incur in the future.
Shares of the Series A Preferred Stock are equity interests in
Great Southern Bancorp
and do not constitute
indebtedness. As such, the Series A Preferred Stock, like our common stock, ranks junior to all indebtedness and other
non-equity claims on Great
Southern Bancorp with
respect to assets available to satisfy claims on Great Southern Bancorp, including in a liquidation of
Great Southern
Bancorp. Additionally, unlike indebtedness, where
principal and interest would customarily be payable on specified due dates, in
the case of preferred stock like the Series A Preferred Stock, as with our common stock, (1) dividends are payable only
when, as and if authorized and declared by, our Board of Directors and depend on,
among other things, our results of operations, financial condition, debt service
requirements, other cash needs and any other factors our Board of Directors
deems relevant, and
(2) as a Maryland
corporation, under Maryland law we are subject to restrictions on
payments of dividends out of lawfully available funds. See “Regulatory
Considerations.”
Great Southern Bancorp is an entity separate and distinct from
its principal subsidiary, Great Southern Bank, and derives substantially all of its
revenue in the form of dividends from that subsidiary. Accordingly,
Great Southern Bancorp is and will be dependent upon dividends from the Bank to
pay the principal of and interest on its indebtedness, to satisfy its other cash
needs and to pay dividends on the Series A Preferred Stock and its common
stock. The Bank’s ability to pay dividends is subject to
its ability to earn net income and to meet
certain regulatory requirements. In the event the Bank is unable to pay dividends to Great Southern Bancorp, Great Southern Bancorp may not be able to pay dividends on
its common stock or the Series A Preferred
Stock. See “Regulatory Considerations” in this prospectus and Note 20 of the Notes to Consolidated Financial
Statements included in our Annual Report on Form 10-K for the year ended
December 31, 2007. Also, Great Southern Bancorp’s 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. This includes claims under
the liquidation account maintained for the benefit of certain eligible deposit
account holders of the Bank established in connection with the Bank’s conversion
from the mutual to the stock form of ownership.
We are also subject to certain contractual restrictions that
could prohibit us from declaring or paying dividends or making liquidation
payments on its common stock or the Series A Preferred Stock. See
“—If we defer payments of interest on our outstanding junior subordinated
debt securities or if certain defaults relating to those debt securities occur,
we will be prohibited from declaring or paying dividends or distributions on,
and from making liquidation payments with respect to, the Series A Preferred
Stock” and “—Risks Specific to the Common Stock-The securities purchase
agreement between us and Treasury limits our ability to pay dividends on and
repurchase our common stock”
below.
In addition, the Series A Preferred Stock does not limit the amount of debt or other
obligations we or our subsidiaries may incur in the future. Accordingly, we and
our subsidiaries may incur substantial amounts of additional debt and other
obligations that will rank senior to the Series A Preferred Stock or to which the Series A Preferred
Stock will be structurally subordinated.
If
we defer payments of interest on our outstanding junior subordinated
debt
securities or
if certain defaults relating to those debt
securities occur,
we will be prohibited from declaring or paying dividends or distributions on,
and from making liquidation payments with respect to, the
Series A Preferred Stock and our
common stock.
As of
September 30, 2008, we had outstanding $30.9 million aggregate principal amount
of junior subordinated debt securities issued in connection with the sale of
trust preferred securities by certain of our subsidiaries that are statutory
business trusts. We have also guaranteed those trust preferred securities. There
are currently two separate series of these junior subordinated debt securities
outstanding, each series having been issued under a separate indenture and with
a separate guarantee. Each of these indentures, together with the related
guarantee, prohibits us, subject to limited exceptions, from declaring or paying
any dividends or distributions on, or redeeming, repurchasing, acquiring or
making any liquidation payments with respect to, any of our capital stock
(including the Series A Preferred Stock and our common stock) at any
time when (i) there shall have occurred and be continuing an event of default
under the indenture or any event, act or condition that with notice or lapse of
time or both would constitute an event of default under the indenture; or (ii)
we are in default with respect to payment of any obligations under the related
guarantee; or (iii) we have deferred payment of interest on the junior
subordinated debt securities outstanding under that indenture. In that regard,
we are entitled, at our option but subject to certain conditions, to defer
payments of interest on the junior subordinated debt securities of each series
from time to time for up to five years.
Events of
default under each indenture generally consist of our failure to pay interest on
the junior subordinated debt securities outstanding under that indenture under
certain circumstances, our failure to pay any principal of or premium on such
junior subordinated debt securities when due, our failure to comply with certain
covenants under the indenture, and certain events of bankruptcy, insolvency or
liquidation relating to us or Great Southern Bank.
As a
result of these provisions, if we were to elect to defer payments of interest on
any series of junior subordinated debt securities, or if any of the other events
described in clause (i) or (ii) of the first paragraph of this risk factor were
to occur, we would be prohibited from declaring or paying any dividends on the
Series A Preferred Stock and our common stock, from redeeming, repurchasing or
otherwise acquiring any of the Series A Preferred Stock or our common stock, and
from making any payments to holders of the Series A Preferred Stock or our
common stock in the event of our liquidation, which would likely have a material
adverse effect on the market value of the Series A Preferred Stock and our
common stock. Moreover, without notice to or consent from the holders
of the Series A Preferred Stock or our common stock, we may issue additional
series of junior subordinated debt securities in the future with terms similar
to those of our existing junior subordinated debt securities or enter into other
financing agreements that limit our ability to purchase or to pay dividends or
distributions on our capital stock, including our common stock.
The
prices of the Series A Preferred Stock and our common stock may fluctuate
significantly, and this may make it difficult for you to resell the Series A
Preferred Stock and/or common stock when you want or at prices you find
attractive.
There currently is no market for the
Series A Preferred Stock, and we cannot predict how the Series A Preferred Stock or our common stock will trade in the
future. The market value of the Series A Preferred Stock
and 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 stockholders, including sales of common stock by existing
stockholders 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. |
The market value of the Series A Preferred Stock and
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, the Series A
Preferred Stock and our
common stock and (ii) sales of substantial amounts of the Series A Preferred Stock or
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 the Series A Preferred Stock
and our common
stock.
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 or the Series A Preferred 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
or the Series A Preferred
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 stockholders.
Provisions in our charter and bylaws, the corporate law of the State of
Maryland and federal regulations could delay or
prevent a third party from acquiring us, despite the possible benefit to
our
stockholders, or otherwise
adversely affect the
market price of
any class of our equity
securities, including our
common stock and the Series
A Preferred Stock. These provisions include: a prohibition on voting shares of common
stock beneficially owned in excess of 10% of total shares outstanding,
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 stockholders may act on at stockholder 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 charter also authorizes 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.
Risks
Specific to the Series A Preferred Stock
An
active trading market for the Series A Preferred Stock may not
develop.
The Series A Preferred Stock is not currently listed on any securities
exchange and we do not
anticipate listing the Series A Preferred Stock on an exchange unless we are
requested to do so by Treasury pursuant to the securities purchase agreement
between us and Treasury.
There can be no assurance that an active
trading market for the Series A Preferred Stock will develop, or, if
developed, that an active trading market will be maintained. If an active market is not developed or
sustained, the market value and liquidity of the Series A Preferred Stock may be adversely
affected.
The
Series A Preferred Stock may be junior in rights and preferences to our future
preferred stock.
Subject to approval by the holders of at least 66 2/3% of the shares of Series A Preferred Stock then outstanding,
voting together as a
separate class, we may
issue preferred stock in the future the terms of which are expressly senior to
the Series A Preferred Stock. The terms of any such
future preferred stock expressly senior to the Series A Preferred Stock may restrict dividend
payments on the Series A
Preferred Stock.
For example, the terms of
any such senior preferred stock may provide that, unless full dividends for all of our
outstanding preferred stock senior to the Series A Preferred Stock have been paid for the
relevant periods, no dividends will be paid on the Series A Preferred Stock, and no shares of the
Series A Preferred Stock may be repurchased,
redeemed, or otherwise acquired by us. This could result in dividends on the
Series A Preferred Stock not being paid when
contemplated. In
addition, in the event of our liquidation, dissolution or winding-up, the terms
of the senior preferred stock may prohibit us from making payments on the Series
A Preferred Stock until all amounts due to holders of the senior preferred stock
in such circumstances are paid in full.
Holders
of the Series A Preferred Stock have limited voting rights.
Until and unless we are in arrears on
our dividend payments on the Series A Preferred Stock for six dividend
periods, whether or not
consecutive, the holders of the Series A Preferred
Stock will have no voting
rights except with respect to certain fundamental changes in the terms of
the Series A Preferred Stock and certain other
matters and except as may be required by Maryland law. If dividends on the Preferred
Stock are not paid in full for six dividend periods, whether or not consecutive, the total number of positions on the
Great Southern Bancorp Board of Directors will automatically increase by two and
the holders of the Series A Preferred Stock, acting as a class with
any other parity securities having similar voting rights, will have the right to
elect two individuals to
serve in the new director positions. This right and the terms of such directors
will end when we have paid
in full all accrued and
unpaid dividends for all past dividend periods. See “Description of Series A Preferred Stock—Voting
Rights.” Based
on the current number of members of the Great Southern Bancorp Board of
Directors (seven), directors elected by the holders of the common stock would
have a controlling majority of the Board and would be able to take any action
approved by them notwithstanding any objection by the directors elected by the
holders of the Series A Preferred
Stock.
If we are unable to redeem the Series A Preferred Stock
after five years, the cost of this capital to us will increase
substantially.
If we are unable to redeem the Series A
Preferred Stock prior to February 15, 2014, the cost of this capital to us will
increase substantially on that date, from 5.0% per annum (approximately $2.9
million annually) to 9.0% per annum (approximately $5.2 million
annually). See “Description of Series A Preferred Stock—Redemption
and Repurchases.” Depending on our financial condition at the time,
this increase in the annual dividend rate on the Series A Preferred Stock could
have a material negative effect on our liquidity.
Risks
Specific to the Common Stock
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 5,
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 stockholders
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 stockholders 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
Great Southern
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 6.4% of the shares of our common stock outstanding as of December
29, 2008 (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 charter could limit your voting rights as a
holder of our common stock.
Our charter 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. 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 will not be
commensurate with your economic interest in our company.
The
price of our common stock can be volatile.
The price of our common stock can fluctuate widely in
response to a variety of
factors. Factors include actual or anticipated variations in our quarterly
operating results, recommendations by securities analysts, operating and stock
price performance of other companies, news reports, results of litigation and
other factors, including those described
in this “Risk Factors” section. General market fluctuations,
industry factors and general economic conditions and events, such as economic
slowdowns or recessions, interest rate changes and credit loss trends could
also cause our common stock price to decrease
regardless of our
operating results. 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.
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.
RATIOS OF EARNINGS TO
FIXED CHARGES
Our historical consolidated ratios of earnings to fixed charges for the periods
indicated, both including
and excluding interest on deposits, are set forth in the table below.
During all periods
presented below, we had no
shares of preferred stock outstanding. The ratio of earnings to fixed charges
is computed by dividing (i) income before income taxes and
fixed charges by (ii) total fixed charges. For purposes
of computing these ratios,
fixed charges excluding interest on deposits represents interest and
amortization of debt discount and expense, including amounts capitalized, and
the estimated interest portion of rents, and fixed charges including interest on
deposits represents each of the foregoing amounts plus interest expense on
deposits.
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Nine
Months
Ended
September 30,
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Year Ended
December 31,
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2008
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2007
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2006
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2005
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2004
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2003
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Ratio of Earnings
to
Fixed
Charges
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Including
interest on deposits
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0.76x
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1.47x
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1.55x
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1.57x
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2.05x
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1.95x
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Excluding
interest on deposits
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----(1)
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3.69x
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3.95x
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3.29x
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5.72x
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5.58x
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(1)
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The
earnings coverage ratio for the nine months ended September 30, 2008 was
inadequate to cover the fixed charges. The coverage deficiency
for the period was $4.1 million.
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As a bank holding company, Great Southern 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 December 31, 2007 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
and the Series A Preferred 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 bank subsidiary, Great Southern
Bank, within certain
limits, and the Missouri
Division of Finance, which
also regulates the Bank.
Our ability to pay dividends on
the Series A Preferred
Stock and 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 Maryland law, Great Southern Bancorp is generally prohibited from paying a dividend
or making any other
distribution if, after
making such distribution, it would be unable to pay its debts as
they become due in the usual course of business, or if its total assets would be less than the sum
of its total liabilities plus the amount that would be needed if it were
dissolved at the time of the distribution, 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 made.
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 and the Series A Preferred 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 described under “Risk Factors—Risks Relating to Both the
Series A Preferred Stock and Our Common Stock-If we defer payments of interest
on our outstanding junior subordinated debt securities or if certain defaults relating to those
debt securities occur, we will be prohibited from
declaring or paying dividends or distributions on, and from making liquidation
payments with respect to, the Series A Preferred Stock or our common stock” and
“Description of Capital Stock—Common Stock-Restrictions on Dividends and
Repurchases Under Agreement with Treasury.”
This section summarizes specific terms and provisions of the Series A Preferred Stock. The description of the
Series A Preferred Stock contained in this section is qualified in its entirety
by the actual terms of the Series A Preferred Stock, as are stated in the articles
supplementary to our charter, a copy of which was attached as Exhibit 3.1 to our
Current Report on Form 8-K filed on December 9, 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 58,000
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 5, 2008 in connection with the TARP Capital
Purchase Program for a purchase price of $58.0 million. Pursuant to
the securities purchase agreement between us and Treasury, we have agreed, if
requested by Treasury, to enter into a depositary arrangement pursuant to which
the shares of Series A Preferred Stock may be deposited and depositary shares,
each representing a fraction of a share of Series A Preferred Stock as specified
by Treasury, may be issued. See “Description of Depositary
Shares.”
Dividends
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 5, 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. Each dividend will be payable to holders
of record as they appear on our stock register on the applicable record date, which will be
the 15th calendar day immediately preceding the
related dividend payment date (whether or not a business day), or such other
record date determined by our Board of Directors that is not more than 60 nor
less than ten days prior to the related dividend payment
date. Each
period from and including a dividend payment date (or the date of the issuance
of the Series A
Preferred Stock) to but
excluding the following dividend payment date is referred to as a “dividend period.” Dividends payable for each dividend
period are computed on the basis of a 360-day year
consisting of twelve 30-day months. If a scheduled dividend payment date
falls on a day that is not a business day, the dividend will be paid on the next
business day as if it were paid on the scheduled dividend payment date, and no
interest or other additional amount will accrue on the dividend.
The term “business day” means any day except Saturday, Sunday and any day on which banking institutions in
the State of New York generally are authorized or required by law or other
governmental actions to close.
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 the 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 Great Southern 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 Great Southern
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 Great
Southern 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 Great
Southern Bancorp or proceeds available for distribution to our stockholders,
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 stockholders 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 Great
Southern Bancorp with another entity nor a sale, lease or exchange of all or
substantially all of Great Southern Bancorp’s assets will constitute a
liquidation, dissolution or winding up of the affairs of Great Southern
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 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
$14,500,000 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. A
“Qualified Equity Offering” is defined as the sale for cash by Great Southern Bancorp (or its
successor) of preferred
stock or common stock that qualifies as Tier 1 capital under applicable regulatory capital
guidelines.
To exercise the redemption right
described above, we must give notice of the redemption to the holders of record
of the Series A Preferred Stock by first class mail, not less than 30 days and
not more than 60 days before the date of redemption. Each notice of
redemption given to a holder of Series A Preferred Stock must state:
(i) the redemption date; (ii) the number of
shares of Series A Preferred Stock to be redeemed and, if less than all the
shares held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder; (iii) the
redemption price; and (iv) the place or
places where certificates for such shares are to be surrendered for payment of
the redemption price. In the case of a partial redemption of the
Series A Preferred Stock, the shares to be redeemed will be selected either pro
rata or in such other manner as our Board of Directors determines to be fair and
equitable.
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 Maryland 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 Great Southern 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 stockholders (or at a special meeting called for that purpose prior to
the next annual meeting) and at each subsequent annual meeting of stockholders 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.
No person may be elected as a Preferred
Director who would cause us to violate any corporate governance requirements of
any securities exchange or other trading facility on which our securities may
then be listed or traded that listed or traded companies must have a majority of
independent directors. 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.
Under regulations adopted
by the Federal Reserve, if the holders of the
Series A
Preferred Stock are or become entitled to vote for the election of directors,
the Series
A Preferred
Stock may then be deemed a “class of
voting securities” and a holder of 10%
or more of the Series A
Preferred Stock
that is a company
may then be subject to
regulation as a bank holding company. In addition, at such time as the
Series A Preferred Stock is deemed a class of
voting securities, (a) any bank holding company that is a holder of more than 5% of the
Series A Preferred Stock may be required to obtain the approval
of the Federal Reserve to acquire or retain more than 5% of the Series A Preferred Stock and (b) any person
may be required to obtain the approval of the Federal Reserve to acquire or
retain 10% or more of the Series A Preferred Stock.
In addition to any other vote or consent
required by Maryland law or by our charter, 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 charter or the articles supplementary 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 Great Southern Bancorp;
or
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amend
our charter or the articles supplementary 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 Great Southern 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 Great Southern 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.
The voting provisions described above
will not apply if, at or prior to the time when the vote or consent of the
holders of the Series A Preferred Stock would otherwise be required, all
outstanding shares of the Series A Preferred Stock have been redeemed by us or
called for redemption upon proper notice and sufficient funds have been set
aside by us for the benefit of the holders of Series A Preferred Stock to effect
the redemption.
DESCRIPTION
OF DEPOSITARY SHARES
Pursuant to the securities purchase
agreement between us and Treasury, we have agreed, if requested by Treasury, to
enter into a depositary arrangement pursuant to which the shares of Series A
Preferred Stock may be deposited and depositary shares, each representing a
fraction of a share of Series A Preferred Stock as specified by Treasury, may be
issued. The Shares of Series A Preferred Stock would be held by a
depositary (expected to be a bank or trust company) reasonably acceptable to
Treasury. If we enter into such a depositary arrangement, the
selling securityholders would be
offering depositary shares, each representing a fraction of a share of Series A
Preferred Stock, instead of actual whole shares of Series A Preferred
Stock. The actual terms of any such depositary arrangement would be
set forth in a deposit agreement to which we would be a party, which would be
attached as an exhibit to a filing by us that would be incorporated by reference
into this prospectus. See “Where You Can Find More
Information.”
DESCRIPTION
OF WARRANT
This section summarizes specific terms and provisions
of the warrant we issued to
Treasury on December 5, 2008 concurrent with our sale to Treasury of 58,000
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 9, 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 909,091 shares of our common stock at an exercise
price of $9.57 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 5, 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 (as
defined under “Description of Series A Preferred Stock-Redemption and
Repurchases”) prior to December 31, 2009 resulting in aggregate gross proceeds
of at least $58.0 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.”
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 $58.0 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 charter 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. 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 5, 2011, issuance of our common stock (or securities convertible
into our common stock) 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 Stockholders
The warrant does not entitle its
holder to any of the rights of a stockholder
of Great Southern Bancorp prior to exercise.
Our authorized capital stock consists
of:
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20,000,000
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 December 29, 2008, there were 13,380,969 shares of our common stock issued and
outstanding and 58,000 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 charter and bylaws and to applicable Maryland 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
stockholders. 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 5,
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.
Preferred
Stock
Our charter permits 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 stockholder 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 “Description of 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 the Series A Preferred Stock
and may assist management
in impeding any unfriendly takeover or attempted change in
control. See “—Anti-Takeover
Effects – Authorized Shares.”
For a description of the terms of the
Series A Preferred Stock, see “Description of Series A Preferred
Stock.”
Anti-takeover
Effects
The provisions of our charter and bylaws summarized in the following paragraphs
may have anti-takeover effects and could delay, defer, or prevent a tender offer
or takeover attempt that a stockholder might consider to be in such
stockholder’s best interest, including those
attempts that might result in a premium over the market price for the shares
held by stockholders, and may make removal of
the incumbent management and directors more difficult.
Authorized
Shares. Our charter authorizes the issuance of 20,000,000 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
exercise of employee stock options. 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, and thereby assist members of management to retain their
positions.
Voting Limitation. Our charter generally prohibits any
stockholder that beneficially owns more than 10% of the outstanding shares of
our common stock from voting shares in excess of this limit. This
provision would 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.
The Maryland General Corporation Law
contains a control share acquisition statute which, in general terms, provides
that where a stockholder acquires issued and outstanding shares of a
corporation’s voting stock (referred to as control shares) within one of several
specified ranges (one-tenth or more but less than one-third,
one-
third or more but less than a majority,
or a majority or more), approval by stockholders of the control share
acquisition must be obtained before the acquiring stockholder may vote the
control shares. The required stockholder vote is two-thirds of all votes
entitled to be cast, excluding “interested shares,” defined as shares held by
the acquiring person, officers of the corporation and employees who are also
directors of the corporation. A corporation may, however, opt-out of the control
share statute through a charter or bylaw provision, which we have done pursuant
to our bylaws. Accordingly, the Maryland control share acquisition
statute does not apply to acquisitions of shares of our common stock. Though not
anticipated, we could seek stockholder approval of an amendment to our charter
to eliminate the opt-out provision; such an amendment would require a
supermajority vote. See “—Amendment of Charter and
Bylaws.”
Board of
Directors. Except with respect to any directors who
may be elected by any class or series of preferred stock, 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 charter described below that limit the ability
of stockholders 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 stockholders to change the composition of the Board
of Directors. As a result, at least two annual meetings of stockholders will be required for the stockholders 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 stockholders believe that such a change would be
desirable. Our charter
provides that stockholders may not cumulate their votes in the election of
directors.
Our bylaws provide that we will have the
number of directors fixed from time to time by our Board of Directors by a vote
of a majority of the Board. Great Southern Bancorp currently has
seven directors. Our bylaws also provide that, subject to the rights
of the holders of any series of preferred stock then outstanding, vacancies in
the Board of Directors may be filled by a majority vote of the directors then in
office, though less than a quorum, and any director so chosen shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred. Our charter provides that, subject to the rights of
the holders of any series of preferred stock then outstanding, directors may be
removed from office only for cause and only by the vote of the holders of at
least 80% of the voting power of the outstanding shares of capital stock
entitled to vote generally in the election of directors, voting together as a
single class.
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
“Description of Series A Preferred Stock—Voting Rights.”
Special
Meetings of
Stockholders. Our bylaws provide that special meetings of
stockholders may be called by our Board of Directors by vote of a majority of the whole
Board (meaning the total number of directors we would have if there
were no vacancies).
Our bylaws also provide
that a special meeting of
stockholders shall be called by on the written request of stockholders entitled
to cast at least a majority of all votes entitled to be cast at the meeting.
Action by
Stockholders Without A Meeting. Our bylaws provide that, except as described
in the following sentence, any action required or permitted to be taken at a
meeting of stockholders may instead be taken without a meeting if a unanimous
consent which sets forth the action is given in writing or by electronic
transmission by each stockholder entitled to vote on the matter. Our
bylaws also provide that, unless our charter provides otherwise, the
holders of any class of our stock, other
than common stock, that is entitled to vote generally in the election of
directors may act without a meeting by delivering a consent in writing or by
electronic transmission of the stockholders entitled to cast not less than the
minimum number of votes that would be necessary to approve the action at a
meeting of stockholders if we give notice of the action so taken to each
stockholder within ten days after the action is taken.
Business
Combinations With Certain Persons. Our charter provides that certain
business combinations (for example, mergers, share exchanges, significant asset
sales and significant stock issuances) involving “interested stockholders” of
Great Southern Bancorp require, in addition to any vote required by law, the
approval of the holders of at least 80% of the voting power of the outstanding
shares of stock entitled to vote generally in the election of directors, voting
together as a single class, unless either (i) a majority of the
disinterested directors have
approved the business combination or
(ii) certain fair price and procedure requirements are satisfied. An
“interested stockholder” generally means a person who is a greater than 10%
stockholder of Great Southern Bancorp or who is an affiliate of Great
Southern Bancorp and at any time within the past two years was a greater than
10% stockholder of Great Southern Bancorp.
The Maryland General Corporation Law
contains a business combination statute that prohibits a business combination
between a corporation and an interested stockholder (one who beneficially owns
10% or more of the voting power) for a period of five years after the interested
stockholder first becomes an interested stockholder, unless the transaction has
been approved by the board of directors before the interested stockholder became
an interested stockholder or the corporation has exempted itself from the
statute pursuant to a charter provision. After the five-year period has elapsed,
a corporation subject to the statute may not consummate a business combination
with an interested stockholder unless (i) the transaction has been
recommended by the board of directors and (ii) the transaction has been
approved by (a) 80% of the outstanding shares entitled to be cast and
(b) two-thirds of the votes entitled to be cast other than shares owned by
the interested stockholder. This approval requirement need not be met if certain
fair price and terms criteria have been satisfied. We have opted-out
of the Maryland business combination statute through a provision in our
charter.
Prevention of
Greenmail. Our
charter generally prohibits us from acquiring any of our own equity securities
from a beneficial owner of 5% or more of our voting stock unless: (i) the
acquisition is approved by the holders of at least 80% of our voting stock not
owned by the seller, voting together as a single class; (ii) the
acquisition is made as part of a tender or exchange offer by us or a subsidiary
of ours to purchase securities of the same class on the same terms to all
holders of such securities; (iii) the acquisition is pursuant to an open
market purchase program approved by a majority of our Board of Directors,
including a majority of the disinterested directors; or (iv) the
acquisition is at or below the market price of our common stock and is approved
by a majority of our Board of Directors, including a majority of the
disinterested directors.
Amendment of Charter
and
Bylaws. Our charter generally may be
amended upon approval by the Board of Directors and the holders of a majority of
the outstanding shares of our common stock. The amendment of certain
provisions of our charter, however, requires the 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. These include
provisions relating to: the issuance of preferred stock; voting limitations on
greater than 10% stockholders; the number, classification, election and removal
of directors; certain business combinations with greater than 10% stockholders;
the prevention of greenmail, indemnification of directors and officers and
limitations on director and officer liability; and amendments to our charter and
bylaws.
Our bylaws may be amended either by the
Board of Directors, by a vote of a majority of the whole Board, or by our
stockholders, by the vote of the holders of at least 80% of the voting power 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 bylaws provide that we must receive
written notice of any stockholder proposal for business at an annual meeting of
stockholders not less than 90 days or more than 120 days before the
anniversary of the preceding year’s annual meeting. If the date of the current
year annual meeting is advanced by more than 20 days or delayed by more
than 60 days from the anniversary date of the preceding year’s annual
meeting, we must receive
written notice of the
proposal no earlier than the close of business on
the 120th day prior to the date of the annual meeting and no later than the
close of business on the later of the 90th day prior to the annual meeting or the 10th day following
the day on which notice of the date of the meeting is mailed or public
announcement of the date of the meeting date is first made, whichever
occurs first.
Our bylaws also provide that we must
receive written notice of any stockholder director nomination for a meeting of
stockholders not less than 90 days or more than 120 days before the
date of the meeting. If, however, less than 100 days’ notice or prior
public announcement
of the date of the meeting
is given or made to stockholders, we must receive notice of the nomination no later than
the tenth day following the day on which notice of the date of the meeting is mailed or public announcement of the date of the meeting date is first made, whichever
occurs first.
Transfer
Agent
The transfer agent and registrar for our
common stock is Registrar
& Transfer Company.
SELLING
SECURITYHOLDERS
The selling securityholders may include
(i) Treasury, which acquired all of the shares of Series A Preferred Stock and
the warrant from us on December 5, 2008 in a private placement exempt from the
registration requirements of the Securities Act of 1933, and (ii) any other
person or persons holding shares of Series A Preferred Stock or depositary
shares evidencing fractional interests in shares of Series A Preferred Stock,
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 100% of the
outstanding shares of the Series A Preferred Stock and the entire amount of the
warrant (none of which has been exercised) covered by this
prospectus.
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58,000 shares of Series A
Preferred Stock, representing 100% of the shares of Series A Preferred
Stock outstanding on the date of this prospectus, or, in the event
Treasury requests that we deposit the shares of Series A Preferred Stock
with a depositary in accordance with the securities purchase agreement
between us and Treasury, depositary shares evidencing fractional share
interests in such shares of Series A Preferred
Stock;
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a ten-year warrant to purchase
909,091 shares of our common stock at an exercise price of $9.57 per
share, subject to adjustment as described under “Description of Warrant”;
and
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the 909,091 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 6.4% of the shares of our
common stock outstanding as of December 29, 2008 (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.
PLAN
OF DISTRIBUTION
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;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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privately
negotiated transactions;
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settlement
of short sales entered into after the effective date of the registration
statement of which this prospectus is a
part;
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broker-dealers
may agree with the selling securityholders to sell a specified number of
such shares at a stipulated price per
share;
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a
combination of any such methods of sale;
and
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any
other method permitted pursuant to applicable
law.
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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 Securities and
Exchange Commission, 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.
We do not intend to apply for listing of
the Series A Preferred Stock on any securities exchange or for inclusion of the
Series A Preferred Stock in any automated quotation system unless we are
requested to do so by Treasury. No assurance can be given as to the
liquidity of the trading market, if any, for the Series A Preferred
Stock.
The validity of the securities offered
by this prospectus has been passed upon for us by Silver, Freedman & Taff, L.L.P,
Washington, D.C.
EXPERTS
The consolidated financial statements of
Great Southern Bancorp,
Inc. as of
December 31, 2007 and 2006, and for each of the years in the three year
period ended December 31, 2007, and management’s assessment of the
effectiveness of internal control over financial reporting as of
December 31, 2007, have been incorporated by reference herein in reliance
upon the report of BKD,
LLP, independent registered
public accounting firm, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
58,000
Shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
Liquidation
Preference $1,000 Per Share
(or
Depositary Shares Evidencing Fractional Interests in Such
Shares)
909,091
Shares of Common Stock and Warrant to Purchase Such
Shares
Great
Southern 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. Great Southern Bancorp,
Inc. (the “Registrant”) will bear all of these expenses.
|
Registration
fee under the Securities Act
|
|
$ |
2,648 |
|
|
Legal
fees and expenses*
|
|
$ |
50,000 |
|
|
Accounting
fees and expenses*
|
|
$ |
15,000 |
|
|
Printing
and other miscellaneous fees and expenses*
|
|
$ |
10,000 |
|
|
Total
|
|
$ |
77,648 |
|
*Estimated
solely for the purpose of this Item. Actual expenses may be more or
less.
Item
15. Indemnification of Officers and Directors
Section
2-405.2 of the Maryland General Corporation Law permits a Maryland corporation
to include in its charter a provision limiting the liability of its directors
and officers to the corporation and its stockholders for monetary damages
except: (1) to the extent it is proven that the director or officer
actually received an improper benefit or profit, for the amount of the improper
benefit or profit; or (2) to the extent a final judgment or adjudication against
the director or officer is based on a determination that the director's or
officer's act or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action against the director or
officer. The Registrant's charter contains such a provision, thereby
limiting the liability of its directors and officers to the maximum extent
permitted by Maryland law.
Section
2-418 of the Maryland General Corporation Law permits a Maryland corporation to
indemnify a director or officer who is made a party to any proceeding by reason
of service in that capacity against judgments, penalties, fines, settlements and
reasonable expenses actually incurred unless it is proven that: (1) the act or
omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or with active and deliberate
dishonesty; (2) the director or officer actually received an improper personal
benefit; or (3) in the case of a criminal proceeding, the director or officer
had reason to believe that his conduct was unlawful. The Maryland
General Corporation Law provides that where a director or officer is a defendant
in a proceeding by or in the right of the corporation, the director or officer
may not be indemnified if he or she is found liable to the
corporation. The Maryland General Corporation Law also provides that
a director or officer may not be indemnified in respect of any proceeding
alleging improper personal benefit in which he or she was found liable on the
grounds that personal benefit was improperly received. A director or
officer found liable in a proceeding by or in the right of the corporation or in
a proceeding alleging improper personal benefit may petition a court to
nevertheless order indemnification of expenses if the court determines that the
director or officer is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances.
Section
2-418 of the Maryland General Corporation Law provides that unless limited by
the charter of a Maryland corporation, a director or officer who is
successful on the merits or otherwise in defense of any proceeding must be
indemnified against reasonable expenses. Section 2-418 also provides
that a Maryland corporation may advance reasonable expenses to a director or
officer upon the corporation's receipt of (a) a written affirmation by the
director or officer of his or her good faith belief that he or she has met the
standard of conduct necessary for indemnification by the corporation and (b) a
written undertaking by the director or officer or on his or her behalf to repay
the amount paid or reimbursed by the corporation if it is ultimately determined
that the standard of conduct was not met.
The
Registrant's charter provides for indemnification of directors and officers to
the maximum extent permitted by the Maryland General Corporation
Law.
Under a
directors' and officers' liability insurance policy, directors and officers of
the Registrant 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
|
|
Charter
of the Registrant(1)
|
|
|
|
|
|
3.2
|
|
Articles
Supplementary to the Charter of the Registrant containing the terms of the
Registrant’s Fixed Rate Cumulative Perpetual Preferred Stock, Series
A(2)
|
|
|
|
|
|
3.3
|
|
Bylaws
of the Registrant(3)
|
|
|
|
|
|
4.1
|
|
Warrant
to purchase shares of the Registrant’s common stock dated December 5,
2008(2)
|
|
4.2
|
|
Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated December 5, 2008 between the Registrant and the United
States Department of the Treasury(2)
|
|
|
|
|
|
5.1
|
|
Opinion
of Silver, Freedman & Taff, L.L.P.
|
|
|
|
|
|
12.1
|
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
|
|
|
|
23.1
|
|
Consent
of BKD, LLP
|
|
|
|
|
|
23.2
|
|
Consent
of Silver, Freedman & Taff, L.L.P. (contained in its opinion filed as
Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power
of attorney (contained in the signature page of the registration
statement)
|
|
________________
|
|
|
(1)
|
Attached
as an appendix to the Registrant’s definitive proxy statement on Schedule
14A filed on March 31, 2004 and incorporated herein by
reference.
|
|
|
(2)
|
Attached
as an exhibit to the Current
Report on Form 8-K filed by the Registrant on December 9, 2008 and
incorporated herein by reference.
|
| |
(3) |
Attached as an
exhibit to the Current Report on Form 8-K filed by the Registrant on
October 19, 2007 and incorporated herein by
reference. |
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
Springfield, State of Missouri, on the 2nd day of January,
2009.
| |
|
|
| |
|
GREAT SOUTHERN BANCORP,
INC.
|
|
|
|
By:
|
/s/ Joseph
W. Turner |
|
| |
|
Joseph
W. Turner |
|
| |
|
President
and Chief Executive Officer |
|
| |
|
(Duly
Authorized Representative) |
|
POWER
OF ATTORNEY
Each
person whose signature appears below appoints Joseph W. Turner and Rex A.
Copeland or either of them, as his or her true and lawful
attorney-in-fact and agent, for him or her and in his or her 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 or she 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/
Joseph W. Turner |
|
/s/
Rex A. Copeland |
|
Joseph
W. Turner
|
|
Rex
A. Copeland
|
|
President,
Chief Executive Officer; Director
(Principal
Executive Officer)
|
|
Treasurer
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
Date: January
2, 2009
|
|
Date: January
2, 2009
|
|
|
|
|
| /s/
William V. Turner |
|
/s/
William E. Barclay |
|
William
V. Turner
|
|
William
E. Barclay
|
|
Chairman
of the Board
|
|
Director
|
|
|
|
|
|
Date: January
2, 2009
|
|
Date: January
2, 2009
|
|
|
|
|
| /s/
Larry D. Frazier |
|
/s/
Thomas J. Carlson |
|
Larry
D. Frazier
|
|
Thomas
J. Carlson
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: January
2, 2009
|
|
Date:
January 2, 2009
|
|
|
|
|
| /s/
Julie T. Brown |
|
/s/
Earl A. Steinert, Jr. |
|
Julie
T. Brown
|
|
Earl
A. Steinert, Jr.
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: January
2, 2009
|
|
Date: January
2, 2009
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
of Document
|
|
|
|
|
|
3.1
|
|
Charter
of the Registrant(1)
|
|
|
|
|
|
3.2
|
|
Articles
Supplementary to the Charter of the Registrant containing the terms of the
Registrant’s Fixed Rate Cumulative Perpetual Preferred Stock, Series
A(2)
|
|
|
|
|
|
3.3
|
|
Bylaws
of the Registrant(3)
|
|
|
|
|
|
4.1
|
|
Warrant
to purchase shares of the Registrant’s common stock dated December 5,
2008(2)
|
|
4.2
|
|
Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated December 5, 2008 between the Registrant and the United
States Department of the Treasury(2)
|
|
|
|
|
|
5.1
|
|
Opinion
of Silver, Freedman & Taff, L.L.P.
|
|
|
|
|
|
12.1
|
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
|
|
|
|
23.1
|
|
Consent
of BKD, LLP
|
|
|
|
|
|
23.2
|
|
Consent
of Silver, Freedman & Taff, L.L.P. (contained in its opinion filed as
Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power
of attorney (contained in the signature page of the registration
statement)
|
|
________________
|
|
|
(1)
|
Attached
as an appendix to the Registrant’s definitive proxy statement on Schedule
14A filed on March 31, 2004 and incorporated herein by
reference.
|
|
|
(2)
|
Attached
as an exhibit to the Current Report on Form 8-K filed by the Registrant on
December 9, 2008 and incorporated herein by reference.
|
| |
(3) |
Attached
as an exhibit to the Current Report on Form 8-K filed by
the Registrant on October 19, 2007 and incorporated herein by
reference. |