Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
FIRST OF AMERICA BANK CORPORATION
(Exact name of registrant as specified in its charter)
MICHIGAN 38-1971791
(State or other Jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
211 SOUTH ROSE STREET (616) 376-9000
KALAMAZOO, MICHIGAN 49007 (Telephone number, including
(Address, Including zip code of area code, of registrant's
registrant's principal principal executive
executive offices) offices)
FIRST FEDERAL SAVINGS BANK OF CHARLOTTE COUNTY
STOCK OPTION PLAN
(Full Title of Plan)
RICHARD V. WASHBURN Copy to:
SENIOR VICE PRESIDENT David E. Riggs, Esq.
First of America Howard & Howard Attorneys,
Bank Corporation P.C.
211 South Rose Street The Kalamazoo Building,
Kalamazoo, Michigan 49007 Suite 400
(616) 376-9000 107 West Michigan Avenue
Kalamazoo, Michigan 49007
(Name, address, including zip code (616) 382-1483
and telephone number, including area
area code and agent for service)
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------
Title of each class of securities to be registered:
Common Stock (1) $10 Par Value
Amount to be registered: 24,933
Proposed maximum offering price per share:
$32.44(3)(4)
Proposed maximum aggregate offering price:
$808,826.52(3)
Amount of registration fee:
$278.91(4)
(1) Also includes an equal number of Rights to purchase shares
of the Registrant's Series A Junior Participating Preferred
Stock, which Rights are not (a) separable from the shares of
Common Stock; or (b) presently exercisable.
(2) Plus such indeterminate number of additional shares as may
be required to be issued in the event of an adjustment as a
result of an increase in the number of issued shares of
Common Stock of First of America Bank Corporation resulting
from a subdivision of such shares, the payment of stock
dividends or certain other capital adjustments as provided
in the above referenced Stock Option Plan.
(3) Estimated in accordance with Rule 457(h) and (c) solely for
purposes of calculating the registration fee.
(4) The registration fee is computed in accordance with
paragraphs (h) and (c) of Rule 457. On February 21, 1995,
the average of the high and low prices for shares of the
Common Stock of First of America Bank Corporation was
$32.44.
The Exhibit Index is located at sequential page ____.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the
Registrant (File No. 1-10534) are incorporated in this
registration statement:
(a) the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1993;
(b) the Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1994, June 30, 1994 and
September 30, 1994;
(c) the Registrant's Current Reports on Form 8-K dated July
14, 1994 and July 25, 1994; and
(d) the description of the Registrant's common stock, $10
par value, and Series A Junior Participating Preferred
Stock Purchase Rights which are contained in the
Registrant's Registration Statements on Form 8-A dated
April 30, 1990 and July 18, 1990, respectively, filed
under the Exchange Act, including any amendments or
reports filed for the purpose of updating such
descriptions.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
hereof and before 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 herein and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 561 through 571 of the Michigan Business
Corporation Act (the "Act") and Article V of the Registrant's
Bylaws relate to indemnification of the Registrant's directors
and officers, among others, in a variety of circumstances against
liabilities arising in connection with the performance of their
duties. The Registrant's Bylaws generally permit indemnification
to the same extent provided by the Act.
The Act provides for indemnification of directors and
officers acting in good faith and in a manner they reasonably
believe to be in or not opposed to the best interest of the
Registrant (and, if a criminal proceeding, who have no reasonable
cause to believe their conduct to be unlawful) against (i)
expenses (including attorney's fees) and amounts paid in
settlement actually and reasonably incurred in connection with
any threatened, pending, or completed action, suit or proceeding
(other than an action by, or in the right of the Registrant)
arising out of a position with the registrant (or with some other
entity at the Registrant's request) and (ii) expenses (including
attorney's fees) and amounts paid in settlement actually and
reasonably incurred in connection with threatened, pending, or
completed actions or suits by or in the right of the Registrant,
unless the director or officer is found liable to the Registrant
and an appropriate court does not determine that he or she is
nevertheless fairly and reasonably entitled to indemnity. The
Act requires indemnification for expenses to the extent that a
director or officer is successful in defending against any such
action, suit or proceeding, and otherwise requires in general
that the indemnification provided for in (i) and (ii) above be
made only on a determination by a majority vote of a quorum of
the Board of Directors who were not parties to or threatened to
be made parties to the action, suit, or proceeding, by a majority
vote of a committee of not less than two disinterested directors,
by independent legal counsel, by all independent directors not
parties to or threatened to be made parties to the action, suit
or proceeding, or by the shareholders, that the applicable
standards of conduct were met. In certain circumstances, the Act
further permits advances to cover such expenses before a final
determination that indemnification is permissible, upon receipt
of an undertaking, which need not be secured, by or on behalf of
the directors or officers to repay such amounts unless it shall
ultimately be determined that they are entitled to
indemnification.
Indemnification under the Act is not exclusive of other
rights to indemnification to which a person may be entitled under
the Articles of Incorporation, Bylaws or a contractual agreement.
The Act permits the Registrant to purchase insurance on
behalf of its directors and officers against liabilities arising
out of their positions with the Registrant, whether or not such
liabilities would be within the foregoing indemnification
provisions. Pursuant to this authority, the Registrant maintains
such insurance on behalf of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits filed herewith pursuant to this Item 8
immediately follow the Exhibit Index. Other exhibits, which are
incorporated herein by reference, are included in the following
description of the exhibits applicable to Form S-8 as required by
Item 601 of Regulation S-K.
NUMBER DESCRIPTION
4(a) ARTICLES OF INCORPORATION. Previously filed as an
exhibit to the Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1992 and
incorporated herein by reference.
4(b) BYLAWS. Previously filed as an exhibit to the
Registrant's Registration Statement on Form S-4 filed
June 6, 1994 (Reg. No. 33-53983) and incorporated
herein by reference.
5 OPINION OF COUNSEL AND CONSENT. The opinion and
consent of Howard & Howard Attorneys, P.C. is filed
herewith.
23(a) CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS.
The consent of KPMG Peat Marwick LLP is filed herewith.
23(b) CONSENT OF COUNSEL. The consent of Howard & Howard
Attorneys, P.C. is included in its opinion filed as
Exhibit 5.
99 ADDITIONAL EXHIBITS. First Federal Savings Bank of
Charlotte County Stock Option Plan is filed herewith.
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;
(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;
(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) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d)
of the Exchange Act that are incorporated by reference
in this registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act, 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, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act 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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act 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 Commission such
indemnification is against public policy as expressed in the
Securities 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 Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, the Registration 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 Kalamazoo,
State of Michigan, on the 15th day of February, 1995.
FIRST OF AMERICA BANK CORPORATION
(Registrant)
By: /s/ DANIEL R. SMITH
Daniel R. Smith
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The undersigned officers and directors of First of America
Bank Corporation, a Michigan corporation, do hereby constitute
and appoint Daniel R. Smith, Richard F. Chormann, Thomas W.
Lambert, and any of them, the lawful attorneys and agents or
attorneys and agent, with power and authority to do any and all
acts and things and to execute any and all instruments which said
attorneys and agents, and any one of them, determine may be
necessary or advisable or required to enable said corporation to
comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement.
Without limiting the generality of the foregoing power and
authority, the powers granted include the power and authority to
sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any
and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement and to any and all
instruments or documents filed as part of or in conjunction with
this Registration Statement or amendments or supplements thereto,
and each of the undersigned hereby ratifies and confirms all that
said attorneys and agents or any of them shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed
this Power of Attorney as of the 15th day of February, 1995.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities indicated on the 15th day of February,
1995.
/s/ DANIEL R. SMITH Director, Chairman and Chief
Daniel R. Smith Executive Officer (Principal
Executive Officer)
/s/ THOMAS W. LAMBERT Executive Vice President and
Thomas W. Lambert Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/ RICHARD F. CHORMANN Director
Richard F. Chormann
/s/ JON E. BARFIELD Director
Jon E. Barfield
Director
John W. Brown
/s/ JOSEPH J. FITZSIMMONS Director
Joseph J. Fitzsimmons
/s/ JOEL N. GOLDBERG Director
Joel N. Goldberg
/s/ CLIFFORD L. GREENWALT Director
Clifford L. Greenwalt
/s/ ROBERT L. HETZLER Director
Robert L. Hetzler
/s/ DOROTHY A. JOHNSON Director
Dorothy A. Johnson
Director
Martha M. Mertz
/s/ F. KARL NEUMANN Director
F. Karl Neumann
/s/ JAMES S. WARE Director
James S. Ware
/s/ JAMES W. WOGSLAND Director
James W. Wogsland
/s/ WALTER J. WOLPIN Director
Walter J. Wolpin
/s/ JOHN L. ZABRISKIE Director
John L. Zabriskie
EXHIBIT INDEX
Sequential
Number Page Number
5 Opinion of Howard & Howard Attorneys, P.C., including
Consent
23 Consent of KPMG Peat Marwick LLP
99 First Federal Savings Bank of Charlotte County Stock
Option Plan
EXHIBIT 5
February 27, 1995
Reply to:
Kalamazoo
Direct Dial: (616) 382-8771
First of America Bank Corporation
211 South Rose Street
Kalamazoo, Michigan 49007
ATTENTION: RICHARD V. WASHBURN
Greetings:
We have acted as counsel to First of America Bank
Corporation (the "Company") in connection with the preparation
and filing of a registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933,
registering 24,933 shares of the Common Stock, par value $10 per
share, of the Company issuable upon exercise of stock options
granted to employees of First Federal Savings Bank of Charlotte
County (the "Bank") pursuant to the First Federal Savings Bank of
Charlotte County Stock Option Plan (the "Plan"), which Plan was
adopted by the Company following the Company's acquisition of the
Bank's parent, F & C Bancshares, Inc.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records,
certificates, and other documents and conducted interviews with
officers as we considered necessary or appropriate for the
purpose of this opinion.
It is our opinion that the Common Stock of the Company, when
issued as provided in the Plan, will be legally issued, fully
paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement.
This opinion is rendered pursuant to Item 8 of Form S-8 and
Item 601 of Regulation S-K may be relied upon only by the Company
and the Securities and Exchange Commission and may not be used,
quoted or referred to and/or filed with any other person without
our prior written permission.
Very truly yours,
HOWARD & HOWARD
/s/ DAVID E. RIGGS
David E. Riggs
EXHIBIT 23
The Board of Directors
First of America Bank Corporation
We consent to the use of our reports incorporated herein by
reference and to the reference to our firm under the heading
"Experts" in the Prospectus.
/s/ KPMG PEAT MARWICK LLP
Chicago, Illinois
February 27, 1995
EXHIBIT 99
FIRST FEDERAL SAVINGS BANK OF CHARLOTTE COUNTY
STOCK OPTION PLAN
AS ADOPTED BY FIRST OF AMERICA BANK CORPORATION
SECTION 1. PURPOSE. The purpose of this First Federal
Savings Bank of Charlotte County Compensatory Stock Option Plan,
as adopted by First of America Bank Corporation (the "Plan") is
to permit the First of America Bank Corporation (the
"Corporation") to grant options to purchase shares of its Common
Stock in order to replace the options to purchase common stock of
F&C Bancshares (F&C) that had previously been granted by F&C.
Any option granted pursuant to this Plan shall be clearly and
specifically designated as not being an incentive stock option,
as defined in Section 422(b) of the Internal Revenue Code of
1986, as amended ("Code"). Any option granted under this Plan
shall replace and supersede all options previously granted to,
and not yet exercised by the Optionee (as hereinafter defined)
under either the First Federal Savings Bank of Charlotte County
Compensatory Stock Option Plan or the First Federal Savings Bank
of Charlotte County Incentive Stock Option Plan (the "Prior
Plans"). The shares of Common Stock subject to an option under
this Plan shall be determined by adjusting the number of shares
subject to unexercised options under the Prior Plans pursuant to
the exchange ratio set forth in Section 1.03 of the Agreement and
Plan of Reorganization by and among First of America Bank
Corporation, First of America Bank Acquisition Corporation, and
F&C Bancshares, Inc., (the "Exchange Ratio")
SECTION 2. OPTION TERMS AND CONDITIONS. The terms and
conditions of options granted under this Plan may differ from one
another as the Compensation Committee of the Corporation's Board
of Directors (the Committee) shall, in its discretion, determine
as long as all options granted under the Plan satisfy the
requirements of the Plan.
SECTION 3. DURATION OF OPTIONS. Each option and all
rights thereunder granted pursuant to the terms of this Plan
shall expire on the date determined by the Committee, but in no
event shall any option granted under the Plan expire later than
10 years and one month from the date on which the option was
granted under the Prior Plans. In addition, each option shall be
subject to early termination as provided in the Plan.
SECTION 4. PURCHASE PRICE. The purchase price for
shares acquired pursuant to the exercise shall be equal to the
purchase price established under the Prior Plans divided by the
Exchange Ratio.
SECTION 5. EXERCISE OF OPTIONS. Each option shall be
exercisable in one or more installments during its term and the
right to exercise may be cumulative as determined by the
Committee. No options may be exercised for a fraction of a share
of Common Stock. The purchase price of any shares purchased
shall be paid in full in cash or by certified or cashier's check
payable to the order of the Corporation or by shares of Common
Stock, if permitted by the Committee, or by a combination of
cash, check or shares of Common Stock at the time of exercise of
the option. If any portion of the purchase price is paid in
shares of Common Stock, those shares shall be tendered at their
then fair market value as determined by the Committee. The
Committee may also permit the exercise of options by means of the
simultaneous purchase and sale of Common Stock. All options
under this Plan shall be exercisable immediately upon the
execution of a Stock Option Agreement.
SECTION 6. WRITTEN NOTICE REQUIRED. Any option granted
pursuant to the terms of this Plan shall be exercised when
written notice of that exercise has been given to the Corporation
at its principal office by the person entitled to exercise the
option and full payment for the shares with respect to which the
option is exercised has been received by the Corporation.
SECTION 7. COMPLIANCE WITH SECURITIES LAWS. Shares
shall not be issued with respect to any option granted under the
Plan unless the exercise of that option and the issuance and
delivery of the shares pursuant thereto shall comply with all
relevant provisions of state and federal law, including, without
limitation, the Securities Act of 1933, as amended, the rules and
regulations promulgated thereunder and the requirements of any
stock exchange upon which the shares may then be listed, and
shall be further subject to the approval of counsel for the
Corporation with respect to such compliance. The Committee may
also require an employee to whom an option has been granted
("Optionee") to furnish evidence satisfactory to the Corporation,
including a written and signed representation letter and consent
to be bound by any transfer restrictions imposed by law, legend,
condition, or otherwise, that the shares are being purchased only
for investment purposes and without any present intention to sell
or distribute the shares in violation of any state or federal
law, rule, or regulation. Further, each Optionee shall consent
to the imposition of a legend on the shares of Common Stock
subject to his or her option restricting their transferability as
required by law or by this Section 7.
SECTION 8. EMPLOYMENT OF OPTIONEE. Each Optionee, if
requested by the Committee, must agree in writing as a condition
of the granting of his or her option, to remain in the employment
of the Corporation or any of its subsidiaries (or a corporation
or a parent or subsidiary of such corporation issuing or assuming
a stock option in a transaction to which section 425(a) of the
Code applies), following the date of the granting of that option
for a period specified by the Committee, which period shall in no
event exceed three years. Nothing in this Plan or in any option
granted hereunder shall confer upon any Optionee any right to
continued employment by the Corporation or any of its
subsidiaries, or limit in any way the right of the Corporation or
any subsidiary at any time to terminate or alter the terms of
that employment.
SECTION 9. OPTION RIGHTS UPON TERMINATION OF EMPLOYMENT.
If any Optionee under this Plan ceases to be employed by the
Corporation, or any of its subsidiaries (or a corporation or a
parent or subsidiary of such corporation issuing or assuming a
stock option in a transaction to which section 425(a) of the Code
applies) or ceases to serve as a member of the Corporation's or a
subsidiary's Board of Directors, for any reason other than
disability or death, his or her option shall immediately
terminate; provided, however, that the Committee may, in its
discretion, allow the option to be exercised at any time within
three months after the date the right to exercise options would
otherwise terminate pursuant to this Section 9. unless either the
option or this Plan otherwise provides for earlier termination.
SECTION 10. OPTION RIGHTS UPON DISABILITY. If an
Optionee becomes disabled within the meaning of Section 22(e)(3)
of the Code while employed by the Corporation, or any subsidiary
of the Corporation (or a corporation or a parent or subsidiary of
such corporation issuing or assuming a stock option in a
transaction to which section 425(a) of the Code applies) or while
serving as a member of the Corporation's or a subsidiary's Board
of Directors, the Committee, in its discretion, may allow the
option to be exercised, to the extent exercisable on the date of
termination of employment, at any time within one year after the
date of termination of employment due to disability, unless
either the option or the Plan otherwise provides for earlier
termination.
SECTION 11. OPTION RIGHTS UPON DEATH OF OPTIONEE. Except
as otherwise limited by the Committee at the time of the grant of
an option, if an Optionee dies while employed by the Corporation
or any of its subsidiaries (or a corporation or a parent or
subsidiary of such corporation issuing or assuming a stock option
in a transaction to which section 425(a) of the Code applies) or
while serving as a member of the Corporation's or subsidiary's
Board of Directors, his or her option shall expire one year after
the date of death unless by its terms it expires sooner. During
this one year or shorter period, the option may be exercised, to
the extent that it remains unexercised on the date of death, by
the person or persons to whom the Optionee's rights under the
option shall pass by will or by the laws of descent and
distribution, but only to the extent that the Optionee is
entitled to exercise the option at the date of death.
SECTION 12. OPTIONS NOT TRANSFERRABLE. Options granted
pursuant to the terms of this Plan may not be sold, pledged,
assigned, or transferred in any manner otherwise than by will or
the laws of descent or distribution and may be exercised during
the lifetime of an Optionee only by that Optionee.
SECTION 13. LIMIT ON OPTIONS. The number of shares of
Common Stock for which options may be granted pursuant to the
terms of this Plan shall not exceed 24,933 shares.
SECTION 14. TERMINATION OF PLAN. This Plan shall be
deemed terminated upon the earlier of the date as of which all
Options have been exercised by Optionees, or the date as of which
the rights to exercise all Options have expired.