As filed with the Securities and Exchange Commission on October 13, 1996
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ASB FINANCIAL CORP.
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(Exact name of registrant as specified in its Articles)
Ohio 31-1429488
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
503 Chillicothe Street, Portsmouth, Ohio 45662
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(Address of Principal Executive Offices) (Zip Code)
ASB Financial Corp. 1995 Stock Option and Incentive Plan
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(Full title of the plan)
Gerald R. Jenkins
ASB Financial Corp.
503 Chillicothe Street
Portsmouth, Ohio 45662
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(Name and address of agent for service)
(614) 354-3177
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of Amount to be offering price aggregate Amount of
securities registered per share(*) offering registration fee
to be registered price(*)
- --------------------------------------------------------------------------------------------
Common Shares 171,396 $ * $2,413,476 $483
No par value
*Of the 171,396 shares being registered, 145,684 may be purchased for $13.875
per share upon the exercise of options already granted. The offering price of
the remaining 25,712 shares, which have been reserved for the future grant of
options, has been determined for purposes of calculating the registration fee
pursuant to 17 C.F.R. ss.230.457(c) for "last sale reported over-the-counter
securities" to be $15.25 per share on November 7, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1996, and all documents filed with the Securities and Exchange
Commission (the "Commission") pursuant to the requirements of Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") since that
date are hereby incorporated by reference.
The description of the Common Shares of the Registrant contained in the
Registrant's Prospectus dated March 15, 1995, and incorporated by reference
into the Registrant's Registration Statement on Form 8-A (No. 0-25906) filed
with the Commission on April 18, 1995, is hereby incorporated by reference.
Any definitive Proxy Statement or Information Statement filed pursuant to
Section 14 of the Exchange Act and 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 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.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
None.
ITEM 6. Indemnification of Directors and Officers.
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 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
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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
(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:
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(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 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 Five of the Registrant's regulations governs indemnification
by Registrant and provides as follows:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation 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, without limitation, any
action threatened or instituted 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,
without limitation, attorneys' fees, filing fees, court reporters' fees
and transcript costs), judgments, fines and amounts paid in settlement
II-4
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, he
had no reasonable cause to believe his conduct was unlawful. A person
claiming indemnification under this Section 5.01 shall be presumed, in
respect of any act or omission giving rise to such claim for
indemnification, to have 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 matter, to have had no
reasonable cause to believe his conduct was unlawful, and 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, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director of
the corporation who was a party to any completed action or suit
instituted 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
the corporation (domestic or foreign, nonprofit or for profit),
partnership, joint venture, trust or other enterprise, in respect of any
claim, issue or matter asserted in such action or suit as to which he
shall have been adjudged liable for acting with reckless disregard for
the best interests of the corporation or misconduct (other than
negligence) in the performance of his duty to the corporation unless and
only to the extent that the Court of Common Pleas of Scioto County, Ohio
or the court in which such action or suit was brought shall determine
upon application that, despite such adjudication or liability, and in
view of all the circumstances of the case, he is fairly and reasonably
entitled to such indemnity as such Court of Common Pleas or such other
court shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated
by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained in
the Articles, the Regulations or elsewhere to the contrary
notwithstanding, to the extent that an officer or director of the
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 5.01, or in defense
of any claim, issue or matter therein, he shall be promptly indemnified
by the corporation against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript costs)
actually and reasonably incurred by him in connection therewith.
Section 5.04. Determination Required. Any indemnification required
under Section 5.01 and not precluded under Section 5.02 shall be made by
the corporation only upon a determination that such indemnification of
the officer or director is proper in the circumstances because he has met
the applicable standard of conduct set forth in Section 5.01. Such
determination may be made only (A) by a majority vote of a quorum
consisting of directors of the corporation who were not and are not
parties to, or threatened with, any such action, suit or proceeding, or
(B) if such a quorum is not obtainable or if a majority 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
any attorney, who has been retained by or who has performed legal
services for the corporation, or any person to be indemnified, within the
past five years, or (C) by the shareholders, or (D) by the Court of
Common Pleas of Scioto County, Ohio or (if the corporation is a party
thereto) the court in which such action, suit or proceeding was brought,
if any; any such determination may be made by a court under division (D)
of this Section 5.04 at any time, including, without limitation, any time
before, during or after the time when any such determination may be
requested of, be under consideration by or have been denied or
disregarded by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Section 5.04; and no failure for any reason to make
any such determination, and no decision for any reason to deny any such
determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by shareholders under
division (C) of this Section 5.04 shall be evidence in rebuttal of the
presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal
counsel under division (B) of this Section 5.04 to make indemnification
in respect of any claim, issue or matter asserted in an action or suit
threatened or brought by or in the right of the corporation shall be
promptly communicated to the person who threatened or brought such action
or suit, and within ten (10) days after receipt of such notification such
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person shall have the right to petition the Court of Common Pleas of
Scioto County, Ohio or the court in which such action or suit was
brought, if any, to review the reasonableness of such determination.
Section 5.05. Advances for Expenses. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding to or on
behalf of the officer or director promptly as such expenses are incurred
by him, but only if such officer or director shall first agree, in
writing, to repay all amounts so paid in respect of any claim, issue or
other matter asserted in such action, suit or proceeding in defense of
which he shall not have been successful on the merits or otherwise:
(A) if it shall ultimately be determined as provided in Section 5.04
that he is not entitled to be indemnified by the corporation as provided
under Section 5.01; or
(B) if, in respect of any claim, issue or other matter asserted by
or in the right of the corporation in such action or suit, he shall have
been adjudged to be liable for acting with reckless disregard for the
best interests of the corporation or misconduct (other than negligence)
in the performance of his duty to the corporation, unless and only to the
extent that the Court of Common Pleas of Scioto County, Ohio or the court
in which such action or suit was brought shall determine upon application
that, despite such adjudication of liability, and in view of all the
circumstances, he is fairly and reasonably entitled to all or part of
such indemnification.
Section 5.06. Article Five Not Exclusive. The indemnification
provided by this Article Five shall not be deemed of, any other rights to
which any person seeking indemnification may be entitled under the
Articles or 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 an officer or
director of the corporation and shall inure to the benefit of the heirs,
executors, and administrators of such person.
Section 5.07. Insurance. The corporation may purchase and maintain
insurance, on behalf of 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 for 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 obligation or the power to indemnify him against such
liability under the provisions of this Article Five.
Section 5.08. Certain Definitions. For purposes of this Article
Five, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article Five shall
be deemed to have been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section 5.01, or in
defense of any claim, issue or other matter therein, if such action, suit
or proceeding shall be terminated as to such person, with or without
prejudice, without the entry of a judgment or order against him, without
a conviction of him, without the imposition of a fine upon him and
without his payment or agreement to pay any amount in settlement thereof
(whether or not any such termination is based upon a judicial or other
determination of the lack of merit of the claims made against him or
otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and
in a manner he reasonably believed to be in the best interests of the
participants and beneficiaries of any employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of
the Corporation" within the meaning of that term as used in this Article
Five.
Section 5.09. Venue. Any action, suit or proceeding to determine a
claim for indemnification under this Article Five may be maintained by
the person claiming such indemnification, or by the corporation, in the
Court of Common Pleas of Scioto County, Ohio. The corporation and (by
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claiming such indemnification) each such person consent to the exercise
of jurisdiction over its or his person by the Court of Common Pleas of
Muskingum County, Ohio in any such action, suit or proceeding.
ITEM 7. Exemption from Registration Claimed.
Not Applicable.
ITEM 8. Exhibits.
See the Exhibit Index attached hereto.
ITEM 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this registration
statement to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a fundamental
change in the information in the registration statement;
and 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 the 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) 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 with or furnished to the Commission 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) For determining liability under the Securities Act of
1933, to treat each post-effective amendment as a new
registration statement of the securities offered, and the
offering of the securities at that time to be the initial bona
fide offering; and
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the
end of the offering.
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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 Portsmouth, State of Ohio, on
September 30, 1996.
ASB FINANCIAL CORP.
By: Gerald R. Jenkins
______________________________________
Gerald R. Jenkins
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated.
Signature Title Date
- --------- ------- ------
William J. Burke Director September 23, 1996
__________________________
William J. Burke
Lee O. Fitch Director September 23, 1996
___________________________
Lee O. Fitch
Gerald R. Jenkins Director and President September 23, 1996
___________________________ (Principal Executive Officer)
Gerald R. Jenkins
Victor W. Morgan Director September 23, 1996
___________________________
Victor W. Morgan
Louis M. Schoettle Director September 23, 1996
___________________________
Louis M. Schoettle, M.D.
Robert M. Smith Director and Vice President September 23, 1996
___________________________ (Principal Financial Officer and
Robert M. Smith Principal Accounting Officer)
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EXHIBIT INDEX
Exhibit No. Exhibit
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4 ASB Financial Corp. 1995 Stock Option and
Incentive Plan.
5 Opinion of Vorys, Sater, Seymour and Pease
as to legality of securities.
23(a) Consent of Grant Thornton LLP.
23(b) Consent of Vorys, Sater, Seymour and Pease.
Included in Exhibit 5
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