Registration No. 333-__________
As filed with the Securities and Exchange Commission on June 5, 2003
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Wayne Savings Bancshares, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 31-1557791
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
151 North Market Street
Wooster, Ohio 44691
(Address of Principal Executive Offices)
Charles F. Finn
151 North Market Street
Wooster, Ohio 44691
(Name and Address of Agent for Service)
_________________________________
Wayne Savings 401(k) Retirement Plan
(Full Title of the Plan)
Copies to:
Charles F. Finn Robert B. Pomerenk, Esquire
Chairman, President and Luse Gorman Pomerenk & Schick, P.C.
Chief Executive Officer 5335 Wisconsin Avenue, N.W., Suite 400
Wayne Savings Bancshares, Inc. Washington, D.C. 20015
151 North Market Street (202) 274-2000
Wooster, Ohio 44691
(330) 264-5767
(Name, Address and Telephone
Number of Agent for Service)
_________________________
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 check the following box. [x]
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered (1) Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------
401(k) Participation (1) __ __ (2)
Interests
====================================================================================================================
<FN>
- --------------
(1) Represents an indeterminate number of interests in Wayne Savings 401(k)
Retirement Plan.
(2) Pursuant to Rule 457(h)(3) no registration fee is required to be paid.
</FN>
_____________________
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
2
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
This Registration Statement relates to the registration of an indeterminate
number of participation interests in Wayne Savings 401(k) Retirement Plan (the
"Plan"). Documents containing the information required by Part I of the
Registration Statement have been or will be sent or given to participants in the
Plan, as specified by Securities Act Rule 428(b)(1). Such documents are not
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424, in reliance on Rule 428.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed by Wayne Savings
Bancshares, Inc. (the "Company") with the Commission are hereby incorporated by
reference in this Registration Statement:
a) The Company's prospectus containing audited financial statements for the
fiscal years ended March 31, 2002 and 2001 (Commission File No. 333-69600),
filed pursuant to Rule 424(b) of the Securities Act of 1933, as amended;
b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the year covered by the prospectus referred to in (a) above; and
c) The description of the Company's common stock contained in the
Registration Statement on Form 8-A filed with the Commission on January 7, 2003
and amended as of the same date (Commission File No. 000-23433).
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement and the prospectus.
The Company shall furnish without charge to each person to whom the
prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Charles
F. Finn, Chairman, President and Chief Executive Officer, Wayne Savings
Bancshares, Inc., 151 North Market Street, Wooster, Ohio 44691, telephone number
(330) 264-5767.
All information appearing in this Registration Statement and the prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities
Not applicable.
3
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Articles TENTH and ELEVENTH of the Certificate of Incorporation of the
Company set forth circumstances under which directors, officers, employees and
agents of the Company may be insured or indemnified against liability which they
incur in their capacities as such:
TENTH:
A. Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director, Officer,
employee or agent or in any other capacity while serving as a Director, Officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section C hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article
TENTH shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a Director of Officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections A and B of this Article TENTH shall be
contract rights and such rights shall continue as to an indemnitee who has
ceased to be a Director, Officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in
full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any
such suit, or in a suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
4
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Corporation's
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, Officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
ELEVENTH: A Director of this Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except for liability (i) for any breach of the Director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the Director derived an improper
personal benefit. If the Delaware General Corporation Law is amended to
authorize corporate action further eliminating or limiting the personal
liability of Directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
Director of the Corporation existing at the time of such repeal or modification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Regulation
S-K
Exhibit Reference to Prior Filing or
Number Document Exhibit No. Attached Hereto
- ---------- -------- ----------------------------
4 Form of Common Stock Certificate. *
5 Opinion of Luse Gorman Pomerenk &
Schick, P.C. 5
10 Wayne Savings 401(k) Retirement Plan. 10.4
23.1 Consent of Luse Gorman Pomerenk &
Schick, P.C. Contained in Exhibit 5
23.2 Consent of Grant Thornton LLP. Exhibit 23.2
5
24 Power of Attorney. Contained on Signature Page
99 Prospectus Supplement. **
______________
* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form SB-2 (Commission File No. 333-69600), originally filed by the Company under
the Securities Act of 1933 with the Commission on September 18, 2001, and all
amendments or reports filed for the purpose of updating such description.
** Incorporated by reference to Exhibit 99.7 to the Pre-Effective Amendment
No. 3 to the Registration Statement on Form SB-2 (Commission File No.
333-69600), originally filed by the Company under the Securities Act of 1933
with the Commission on July 23, 2002, and all amendments or reports filed for
the purpose of updating such description.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan distribution not previously disclosed in
this Registration Statement or any material change to such information in this
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
Plan;
4. 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 (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; and
5. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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.
6
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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wooster, State of Ohio,
on this 24 day of April, 2003.
WAYNE SAVINGS BANCSHARES, INC.
Date: April 24, 2003 By: /s/ Charles F. Finn
-------------------------------
Charles F. Finn
Chairman, President and Chief Executive
Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Wayne Savings Bancshares,
Inc. (the "Company") hereby severally constitute and appoint Charles F. Finn, as
our true and lawful attorney and agent, to do any and all things in our names in
the capacities indicated below which said Charles F. Finn may deem necessary or
advisable to enable the Company to comply with the Securities Act of 1933, and
any rules, regulations and requirements of the Securities and Exchange
Commission, in connection with the registration of participation interests in
Wayne Savings 401(k) Retirement Plan, including specifically, but not limited
to, power and authority to sign for us in our names in the capacities indicated
below the registration statement and any and all amendments (including
post-effective amendments) thereto; and we hereby approve, ratify and confirm
all that said Charles F. Finn shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Charles F. Finn Chairman, President April 24, 2003
- ------------------------ and Chief Executive Officer
Charles F. Finn (Principal Executive
Officer)
/s/ Michael C. Anderson Executive Vice President April 24, 2003
- ------------------------ and Chief Financial Officer (Principal
Michael C. Anderson Financial and Accounting Officer)
/s/ Kenneth Rhode Director April 24, 2003
- ------------------------
Kenneth Rhode
/s/ Russell Harpster Director April 24, 2003
- ------------------------
Russell Harpster
/s/ Joseph Retzler Director April 24, 2003
- ------------------------
Joseph Retzler
/s/ Donald Massaro Director April 24, 2003
- ------------------------
Donald Massaro
/s/ Terry Gardner Director April 24, 2003
- ------------------------
Terry Gardner
/s/ James Morgan Director April 24, 2003
- ------------------------
James Morgan
THE PLAN. Pursuant to requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wooster, State of Ohio,
on April 24, 2003.
WAYNE SAVINGS 401(k) RETIREMENT PLAN
By: /s/ Charles F. Finn
------------------------------------
Charles F. Finn, as trustee
(Duly authorized representative)
By: /s/ Michael C. Anderson
------------------------------------
Michael C. Anderson, as trustee
(Duly authorized representative)
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4 Form of Common Stock Certificate (Incorporated by reference to Exhibit
4 to the Registration Statement on Form SB-2 (Commission File No.
333-69600), originally filed by the Company under the Securities Act
of 1933 with the Commission on September 18, 2001, and all amendments
or reports filed for the purpose of updating such description).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C.
10.4 Wayne Savings 401(k) Retirement Plan
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (contained in the
opinion included as Exhibit 5).
23.2 Consent of Grant Thornton LLP.
24 Power of Attorney (contained in the signature page to this
Registration Statement).
99 Prospectus Supplement (Incorporated by reference to Exhibit 99.7 to
the Pre-Effective Amendment No. 3 to the Registration Statement on
Form SB-2 (Commission File No. 333-69600), originally filed by the
Company under the Securities Act of 1933 with the Commission on July
23, 2002, and all amendments or reports filed for the purpose of
updating such description).