UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
First Defiance Financial Corp.
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(Exact name of registrant as specified in its Charter)
Ohio 34-1803915
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
601 Clinton Street
Defiance, Ohio 43512
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(Address of Principal Executive Offices) (Zip Code)
First Defiance Financial Corp.
2001 Stock Option and Incentive Plan
(Full title of the plan)
William J. Small, President
First Defiance Financial Corp.
601 Clinton Street
Defiance, Ohio 43512
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(Name and address of agent for service)
(419) 782-5015
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price Aggregate offering registration
be registered Registered per share price fee
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Common Shares, 343,000 $* $5,220,460* $1,305.12
$.01 par value
* The offering price of the 343,000 shares, which have been reserved for the
future grant of options, has been determined for the purposes of calculating the
registration fee pursuant to 17 C.F.R. ss.230.457(h) to be $15.22 per share as
of July 19, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
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The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, filed with the Securities and Exchange Commission (the
Commission) on March 23, 2001, and all other documents filed with the Commission
pursuant to the requirements of Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 (Exchange Act) since December 31, 2000, are hereby
incorporated by reference.
The description of the Registrant's common stock contained in Registrant's
Registration Statement on Form S-1 (File No. 33-93354), filed with the
Commission on June 9, 1995, is hereby incorporated by reference.
All documents which may be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof 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 also be deemed to be incorporated herein by reference
and to be made a part hereof from the date of filing such documents.
ITEM 4. Description of Securities.
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Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
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None.
ITEM 6. Indemnification of Directors and Officers.
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A. Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by a corporation and provides as follows:
(E)(1) A corporation may indemnify or agree 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, suit, 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 is or was
a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee, or agent of another corporation, domestic or foreign, nonprofit
or 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 in connection
with such action, suit, or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, 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 he reasonably believed to be in or
not opposed to the best interests of the
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corporation and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree 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 suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee or agent of another corporation, domestic or foreign, nonprofit or
for profit, partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless, and only to the extent that the
court of common pleas or the court in which such action or suit was
brought determines upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court shall deem
proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee, or
agent has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in divisions (E)(1) and (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the action, suit, or
proceeding.
(4) Any indemnification under divisions (E)(1) and (2) of this
section, unless ordered by a court, shall be made by the corporation only
as authorized in the specific case upon a determination that
indemnification of the director, trustee, officer, employee, or agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in divisions (E)(1) and (2) of this section. Such
determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties
to or threatened with any such action, suit, or proceeding;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been retained by
or who has performed services for the corporation or any person
to be indemnified within the past five years;
(c) By the shareholders; or
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(d) By the court of common pleas or the court in which such
action, suit, or proceeding was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal Counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or
brought the action or suit by or in the right of the corporation under
division (E)(2) of this section, and within ten days after receipt of such
notification, such person shall have the right to petition the court of
common pleas or the court in which action or suit was brought to review the
reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that is the
subject of an action, suit, or proceeding referred to in divisions (E)(1)
and (2) of this section, the articles or the regulations of a corporation
state by specific reference to this division that the provisions of this
division do not apply to the corporation and unless the only liability
asserted against a director in an action, suit, or proceeding referred to
in divisions (E)(1) and (2) of this section is pursuant to section 1701.95
of the Revised Code, expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid by the
corporation as they are incurred, in advance of the final disposition of
the action, suit, or proceeding upon receipt of an undertaking by or on
behalf of the director in which he agrees to do both of the following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction
that his action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury
to the corporation or undertaken with reckless disregard for
the best interests of the corporation;
(ii) Reasonably cooperate with the corporation
concerning the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, or agent in defending any
action, suit, or proceeding referred to in divisions (E)(1) and
(2) of this section, may be paid by the corporation as they are
incurred, in advance of the final disposition of the action,
suit, or proceeding as authorized by the directors in the
specific case upon receipt of an undertaking by or on behalf of
the director, trustee, officer, employee, or agent to repay such
amount, if it ultimately is determined that he is not entitled to
be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to
those seeking indemnification under the articles of the regulations or any
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 such office, and shall continue as to a person who
has ceased to be a director, trustee, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including but not limited to trust funds, letters of
credit, or self-insurance, on behalf of or for any person who is or was a
director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, trustee, officer,
employee, or agent of another corporation, domestic or foreign, nonprofit
or profit, partnership, joint venture, trust, or other enterprise, against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify
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him against such liability under this section. Insurance may be purchased
from or maintained with a person in which the corporation has a financial
interest.
(8) The authority of a corporation to indemnify persons pursuant to
divisions (E)(1) and (2) of this section does not limit the payment of
expenses as they are incurred, indemnification, insurance, or other
protection that may be provided pursuant to divisions (E)(5), (6), and (7)
of this section. Divisions (E)(1) and (2) of this section do not create any
obligation to repay or return payments made by the corporation pursuant to
division (E)(5), (6), or (7).
(9) As used in this division, references to "corporation" includes all
constituent corporations in a consolidation or merger and the new or
surviving corporation, so that any person who is or was a director,
officer, employee, or agent of such a constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
trustee, officer, employee, or agent of another corporation, domestic or
foreign, nonprofit or for profit, partnership, joint venture, trust, or
other enterprise, shall stand in the same position under this section with
respect to the new or surviving corporation as he would if he had served
the new or surviving corporation in the same capacity.
B. Article VII of the Registrant's Articles of Incorporation
governs indemnification by the Registrant and provides as
follows:
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party, to any threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, including actions by
or in the right of the Corporation, by reason of the fact that
such person is or was a director, officer, employee, or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, a limited liability
company, or a 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 such person in connection with such
action, suit, or proceeding to the full extent permissible under
Ohio law.
ITEM 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
ITEM 8. Exhibits.
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See the Exhibit Index attached hereto.
ITEM 9. Undertakings.
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A. 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;
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(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 a 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 (a)(1)(i) and (a)(1)(ii) of
this section do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and 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
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.
(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.
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 section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to 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 registrant pursuant to the
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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
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Defiance, State of Ohio, on July 23, 2001.
FIRST DEFIANCE FINANCIAL CORP.
By: /s/ William J. Small
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William J. Small, President
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.
Signature Title Date
/s/ William J. Small Director, Chairman, July 23, 2001
--------------------------
William J. Small President and Chief
Executive Officer
/s/ Don C. Van Brackel Director and Vice Chairman July 23, 2001
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Don C. Van Brackel
/s/ Peter A. Diehl Director July 23, 2001
--------------------------
Peter A. Diehl
/s/ Gerald W. Monnin Director July 23, 2001
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Gerald W. Monnin
/s/ Marvin J. Ludwig Director July 23, 2001
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Marvin J. Ludwig
/s/ John U. Fauster, III Director July 23, 2001
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John U. Fauster, III
/s/ Stephen L. Boomer Director July 23, 2001
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Stephen L. Boomer
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/s/ Douglas A. Burgei Director July 23, 2001
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Douglas A. Burgei
/s/ Thomas A. Voigt Director July 23, 2001
--------------------------
Thomas A. Voigt
/s/ John C. Wahl Executive Vice President, July 23, 2001
-------------------------- Chief Financial Officer
John C. Wahl and Treasurer
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EXHIBIT INDEX
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Exhibit No. Description Location
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4.1 First Defiance Financial Corp. Included herewith.
2001 Stock Option and Incentive Plan
4.2 Articles of Incorporation Incorporated herein by reference to
Exhibit 3.1 in the Registrant's
Form S-1 (File No. 33-93354).
4.3 Code of Regulations Incorporated herein by reference to
Exhibit 3.2 in the Registrant's
Form S-1 (File No. 33-93354).
5 Opinion of Vorys, Sater, Seymour and Pease LLP Included herewith.
as to legality
23.1 Consent of Ernst & Young LLP Included herewith.
23.2 Consent of Vorys, Sater, Seymour and Pease LLP Included herewith in Exhibit 5.