As filed with the Securities and Exchange Commission on October 31, 2003
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONSUMERS FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1666392
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(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1525 Cedar Cliff Drive
Camp Hill, PA 17011
(Address of principal executive offices) (Zip code)
Amendment to Consultant Agreement
dated as of October 30, 2003 between the Registrant and Pinchas Gold
(full title of the plan)
Mr. Donald J. Hommel, President
and CEO Consumers Financial
Corporation
132 Spruce Street
Cedarhurst, New York 11516
(Name and address of agent for service)
(516) 792-0900
(Telephone number, including area code, of agent for service)
Copy to:
David Lubin, Esq.
Ehrenreich Eilenberg & Krause LLP
11 East 44th Street, 17th Floor
New York, New York 10017
(212) 986-9700
Calculation of Registration Fee
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Title of securities to be Amount to be Proposed maximum offering Proposed maximum Amount of registration
registered registered(1) price per unit (2) aggregate offering price fee
--------------------------- ------------------- ---------------------------- --------------------------- -------------------------
Common Stock, $.01 stated 330,000(3) $0.19 $62,700 $7.94
value per share
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Total 330,000 $62,700 $7.94
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(1) Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares as may become issuable
pursuant to terms designed to prevent dilution resulting from stock
splits, stock dividends or similar events.
(2) Estimated solely for the purposes of calculating the registration fee
in accordance with Rule 457(c) and (h) based on the average of the
closing bid and ask prices as of October 29, 2003, a date which is
within five business days prior to the filing of this registration
statement.
(3) Represents shares of common stock issued to a consultant pursuant to
the Consulting Agreement between the Registrant and Pinchas Gold.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission,
this Registration Statement omits the information specified in Part I of Form
S-8. The documents containing the information specified in Part I will be
delivered to the participant in the plans covered by this Registration Statement
as required by Rule 428(b)(1) promulgated under the Securities Act of 1933, as
amended. Such documents are not being filed with the Securities and Exchange
Commission as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of such Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents or portions thereof, as filed with the
Securities and Exchange Commission by Consumers Financial Corporation, a
Pennsylvania corporation (the "Registrant"), pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated by reference in
this registration statement:
(1) our Annual Report on Form 10-K for the year ended December 31,
2002;
(2) our Quarterly Report on Form 10-Q for the quarter ended March 31,
2003;
(3) our Quarterly Report on Form 10-Q for the quarter ended June 30,
2003;
(4) our Current Report on Form 8-K filed on April 30, 2003;
(5) our Current Report on Form 8-K filed on September 25, 2003;
(6) our Current Report on Form 8-K/A filed on October 3, 2003;
(7) our definitive Schedule 14C filed on June 25, 2003;
(8) the description of our Common Stock, stated value $.01 per share,
contained in the section entitled "Description of Securities" of the
Registrant's Registration Statement; and
(9) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, since the end of the fiscal year
covered by the annual report referred to in (1) above.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the effective date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be a part thereof from the date of filing such
documents. Any statement contained herein or in a document or report
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for all purposes to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable
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Item 6. Indemnification of Directors and Officers.
Sections 1741 through 1750 of Subchapter D, Chapter 17, of the Pennsylvania
Business Corporation Law of 1988, as amended (the "BCL"), contain provisions for
mandatory and discretionary indemnification of a corporation's directors,
officers and other personnel, and related matters. Section 1741 provides that a
corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that he or she is or was a representative of the corporation, or is or was
serving at the request of the corporation as a representative of another
domestic or foreign corporation for profit or not-for-profit, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with the action or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the corporation and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action or proceeding by judgment, order,
settlement or conviction or upon a plea of nolo contendere or its equivalent
shall not of itself create a presumption that the person did not act in good
faith and in a manner that he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
Section 1742 provides that a corporation shall have the power to indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he or she is or was a
representative of the corporation or is or was serving at the request of the
corporation as a representative of another domestic or foreign corporation for
profit or not-for-profit, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of the action if he or
she acted in good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interest of the corporation. Indemnification shall
not be made under Section 1742 in respect of any claim, issue or matter as to
which the person has been adjudged to be liable to the corporation unless and
only to the extent that the court of common pleas of the judicial district
embracing the county in which the registered office of the corporation is
located or the court in which the action was brought determines upon
application, that, despite the adjudication of liability but in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for the expenses that the court of common pleas or other court deems
proper.
Section 1743 provides that to the extent that a representative of a corporation
has been successful on the merits or otherwise in defense of any action or
proceeding referred to in Sections 1741 or 1742 or in defense of any claim,
issue or matter therein, he or she shall be indemnified against expenses
(including attorney fees) actually and reasonably incurred by him or her in
connection therewith.
Section 1744 provides that, unless ordered by a court, any indemnification under
Section 1741 or 1742 shall be made by the corporation only as authorized in the
specific case upon a determination that the representative met the applicable
standard of conduct, and the determination will be made by (i) the board of
directors by a majority vote of a quorum of directors who were not parties to
the action or proceeding; (ii) if a quorum is not obtainable, or if obtainable
and a majority of disinterested directors so directs, by independent legal
counsel; or (iii) by the shareholders.
Section 1745 provides that expenses incurred by a representative in defending a
civil or criminal action or proceeding may be paid by the corporation in advance
of the final disposition of the action or proceeding upon receipt of an
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undertaking by or on behalf of the person to repay the amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
corporation.
Section 1746 provides generally that, except in any case where the act or
failure to act giving rise to the claim for indemnification is determined by a
court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter 17D of the
BCL shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding that office. Section 1747 also grants a corporation the power to
purchase and maintain insurance on behalf of any representative against any
liability incurred by him or her in his or her capacity as a representative,
whether or not the corporation would have the power to indemnify him against the
liability under Subchapter 17D of the BCL.
Sections 1748 and 1749 extend the indemnification and advancement of expenses
provisions contained in Subchapter 17D of the BCL to successor corporations in
fundamental changes and to representatives serving as fiduciaries of employee
benefit plans. Section 1750 provides that the indemnification and advancement of
expense provided by, or granted pursuant to, Subchapter 17D of the BCL shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a representative of the corporation and shall inure to the
benefit of the heirs and personal representative of that person.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of this
registration statement:
Exhibit No. Document
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4.1 Provisions of the Articles of Incorporation of Consumers
Financial Corporation that define the rights of security
holders of Consumers Financial Corporation.*
4.2 Provisions of the By-Laws of Consumers Financial Corporation
that define the rights of security holders of Consumers
Financial Corporation.*
4.6 Consultant Agreement dated as of September 12, 2003 by and
between Consumers Financial Corporation and Pinchas Gold.**
4.7 Amendment to Consultant Agreement dated as of October 30, 2003
by and between Consumers Financial Corporation and Pinchas
Gold.
5.1 Opinion of Ehrenreich Eilenberg & Krause, LLP.
23.1 Consent of Ehrenreich Eilenberg & Krause, LLP. (Included in
Exhibit 5.1).
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23.2 Consent of Stambaugh Ness, PC.
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
* Previously Filed.
** Filed as Exhibit 4.6 to Form S-8 Registration Statement filed September 18,
2003 (SEC Registration No. 333-108927).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for 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 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
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registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Cedarhurst, State of New York, on October 30, 2003.
CONSUMERS FINANCIAL CORPORATION
By: /s/ Donald J. Hommel
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Donald J. Hommel
Chief Executive Officer and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Donald J. Hommel his true and lawful
attorney-in-fact and agent with full power of substitution for him and in his
name, place and stead, in any and all capacities to sign any and all amendments
(including pre-effective and post-effective amendments) to this Registration
Statement on Form S-8, and to file the same with all exhibits thereto and other
documents in connection therewith with the Securities and Exchange Commission,
grants unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might and could
do in person, and hereby ratifies and confirms all that said attorneys-in-fact
and agents or their substitutes 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
date indicated.
Signature Title Date
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/s/ Donald J. Hommel President, Chief Executive Officer, Chief Financial Officer
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Donald J. Hommel and Director (Principal Financial Officer and Principal October 30, 2003
Controller)
/s/ Jack Ehrenhaus Chairman and Director (Principal Executive Officer) October 30, 2003
-------------------
Jack Ehrenhaus
/S/ shalom S. Maidenbaum Director October 30, 2003
--------------------
Shalom S. Maidenbaum
/s/ William T. Konczynin Director October 30, 2003
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William T. Konczynin, M.D.
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