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Registration No. 333-
Filed April 16, 1999 ---------
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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Fidelity Financial of Ohio, Inc.
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(Exact Name of Registrant as specified in its Articles of Incorporation)
Ohio 31-1455721
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(State of incorporation) (IRS Employer Identification No.)
5535 Glenway Avenue
Cincinnati, Ohio 45238
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(Address of principal executive offices, including zip code)
Options to purchase Common Stock of the Registrant issued by the Registrant
pursuant to an Agreement of Merger, dated as of September 28, 1998, among the
Registrant, Fidelity Acquisition Corporation and Glenway Financial Corporation
("Glenway"), upon conversion of options to purchase Common Stock of Glenway
under Glenway's 1990 Stock Option and Incentive Plan
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(Full Title of the Plan)
Robert R. Sudbrook Copies to:
President and Chief Executive Officer Jeffrey D. Haas, Esq.
Fidelity Financial of Ohio, Inc. Patricia J. Wohl, Esq.
5535 Glenway Avenue Elias, Matz, Tiernan & Herrick L.L.P.
Cincinnati, Ohio 45238 734 15th Street, N.W.
(513) 922-5959 Washington, D.C. 20005
- -------------------------------------- (202) 347-0300
(Name, address and telephone number of
agent for service)
Page 1 of 29 pages
Index to Exhibits is located on page 7
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CALCULATION OF REGISTRATION FEE
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Title of
Securities Amount Proposed Maximum Proposed Maximum
to be to be Offering Price Aggregate Amount of
Registered Registered(1) Per Share Offering Price Registration Fee
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Common Stock,
par value $.10 90,036(2) $ 7.98(3) $ 718,487(3) $199.74
Common Stock,
par value $.10 68,250(4) $12.19(5) $ 831,968(5) 231.29
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Total 158,286 $1,550,455 $431.03
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares of common stock, par value $.10 per
share ("Common Stock"), of Fidelity Financial of Ohio, Inc. (the "Company" or
"Registrant") registered hereby as a result of a stock split, stock dividend or
similar adjustment of the outstanding Common Stock.
(2) Represents the number of shares of Common Stock of the Company reserved
for issuance as a result of the conversion of outstanding options to purchase
common stock of Glenway Financial Corporation ("Glenway") into options to
purchase Common Stock of the Company pursuant to an Agreement of Merger, dated
as of September 28, 1998, among the Company, Fidelity Acquisition Corporation
and Glenway (the "Agreement").
(3) Estimated solely for the purpose of calculating the registration fee,
which has been calculated pursuant to Rule 457(h) promulgated under the
Securities Act of 1933, as amended ("Securities Act"). The Proposed Maximum
Offering Price Per Share is equal to the weighted average exercise price for
the options, as converted, to purchase shares of Common Stock.
(4) Represents the number of shares of Common Stock of the Company reserved
for issuance as a result of the conversion of options to purchase common stock
of Glenway which are authorized but unissued into options to purchase Common
Stock of the Company pursuant to the Agreement.
(5) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) promulgated under the Securities Act. The Proposed
Maximum Offering Price Per Share for 68,250 shares for which stock options have
not been granted under the 1990 Stock Option and Incentive Plan is equal to the
average of the high and low prices of the Common Stock of the Company on April
12, 1999 on the National Association of Securities Dealers Automated Quotation
("Nasdaq") National Market.
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This Registration Statement shall become effective automatically upon the
date of filing in accordance with Section 8(a) of the Securities Act and 17
C.F.R. Section 230.462.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998.
(b) All reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), since the end of the fiscal year covered by the Form 10-K referred
to in clause (a) above.
(c) The description of the Common Stock of the Company
contained in the Company's Registration Statement on Form S-4 (File No.
333-69293) filed on December 18, 1998.
(d) All documents filed by the Company 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 have been sold or which deregisters all securities
then remaining unsold.
Any statement contained in this Registration Statement, or in a document
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein, or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein,
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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable because the Common Stock is registered under Section 12 of
the Exchange Act.
ITEM. 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VII of the Registrant's Articles of Incorporation 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.
Section 1701.13 of the Ohio General Corporation Law provides as follows
with respect to indemnification:
(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, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, 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 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, if he 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 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,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a 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
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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,
member, manager, or agent has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to in division (E)(1) or
(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 division (E)(1) or (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, member, manager, or agent is proper
in the circumstances because he has met the applicable standard of conduct set
forth in division (E)(1) or (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 the action, suit or proceeding referred to in division (E)(1) or (2) of
this section;
(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;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or (2) of this
section 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
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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 such 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 division (E)(1) or
(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 division (E)(1) or (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, member, manager, or agent in defending
any action, suit, or proceeding referred to in division (E)(1) or (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 the receipt of an undertaking by or on
behalf of the director, trustee, officer, employee, member, manager, 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, the regulations, any agreement a
vote of shareholders or disinterested directors, or otherwise, both as to
action in their official capacities and as to action in another capacity while
holding their offices or positions, and shall continue as to a person who has
ceased to be a director, trustee, officer, employee, member, manager, 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,
member, manager, or agent or another corporation, domestic or foreign,
nonprofit or for profit, a limited liability
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company, or a 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
division (E)(1) or (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 division (E) of this section, "corporation" includes
all constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer, employee,
trustee, member, manager, or agent of such a constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another corporation, domestic
or foreign, nonprofit or for profit, a limited liability company, or a
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable because no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K):
No. Exhibit
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4 Specimen Stock Certificate of Fidelity Financial of Ohio, Inc. (1)
5 Opinion of Elias, Matz, Tiernan & Herrick L.L.P.
as to the legality of the securities
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P.
(contained in the opinion included as Exhibit 5)
23.2 Consents of Grant Thornton LLP
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No. Exhibit
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24 Power of attorney for any subsequent amendments
(located in the signature pages of this
Registration Statement).
99 Glenway Financial Corporation 1990 Stock Option
and Incentive Plan
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(1) Incorporated herein by reference from the Company's Form10-K
filed with the Commission on April 1, 1996.
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 (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement, and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change in
such information in the Registration Statement; provided, however, that clauses
(i) and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses 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 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.
4. That, for the 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 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.
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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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Cincinnati, State of Ohio, on this 16th day of
April 1999.
FIDELITY FINANCIAL OF OHIO, INC.
By: /s/Robert R. Sudbrook
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Robert R. Sudbrook, President
and Chief Executive Officer
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. Each person whose signature appears
below hereby makes, constitutes and appoints Robert R. Sudbrook his true and
lawful attorney, with full power to sign for such person and in such person's
name and capacity indicated below, and with full power of substitution any and
all amendments to this Registration Statement, hereby ratifying and confirming
such person's signature as it may be signed by said attorney to any and all
amendments.
/s/ John R. Reusing April 16, 1999
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John R. Reusing, Chairman of the Board
/s/ Robert R. Sudbrook April 16, 1999
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Robert R. Sudbrook, President,
Chief Executive Officer and Director
(principal executive officer)
/s/ Michael W. Jordan April 16, 1999
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Michael W. Jordan, Director
/s/ David A. Luecke April 16, 1999
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David A. Luecke, Director
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April __, 1999
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Constantine N. Papadakis, Director
/s/ Paul D. Staubach April 16, 1999
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Paul D. Staubach, Senior Vice President
and Chief Financial Officer
(principal financial and accounting officer)
April __, 1999
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Robert W. Zumbiel, Director
/s/ Joseph D. Hughes April 16, 1999
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Joseph D. Hughes, Executive Vice
President and Director
/s/ Thomas N. Spaeth April 16, 1999
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Thomas N. Spaeth, Director
/s/ Edgar A. Rust April 16, 1999
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Edgar A. Rust, Director
April __, 1999
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Daniel W. Geeding, Director
April __, 1999
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Kenneth C. Lichtendahl, Director
April __, 1999
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John L. Torbeck, Director
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