As filed with the Securities and Exchange Commission on October 5, 2004
Registration No. 333-_________
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UNITED STATES
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
______________________________________________________________________________
(State or Other Jurisdiction of Incorporation or Organization)
31-1557791
______________________________________________________________________________
(I.R.S. Employer Identification No.)
151 North Market Street
Wooster, Ohio 44691-4809
______________________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
Wayne Savings Bancshares, Inc. Amended and Restated 2003 Stock Option Plan
______________________________________________________________________________
(Full Title of the Plan)
Charles F. Finn Copies to:
Chairman of the Board, President and Kevin M. Houlihan, Esq.
Chief Executive Officer Eric M. Marion, Esq.
Wayne Savings Bancshares, Inc. Elias, Matz, Tiernan & Herrick L.L.P.
151 North Market Street 734 15th Street, N.W.
Wooster, Ohio 44691-4809 Washington, D.C. 20005
(330) 264-5767 (202) 347-0300
______________________________________________________________________________
(Name, Address and Telephone Number of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Proposed
Class of Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
=======================================================================================
<s> <c> <c> <c> <c>
Common Stock, par
value $.10 per share 204,081 shares(2) $13.95(2) $2,846,929.95 $360.71
=======================================================================================
(1) Together with an indeterminate number of additional shares pursuant to
Rule 416(a) which may be necessary to adjust the number of shares
reserved for issuance pursuant to the Wayne Savings Bancshares, Inc.
("Company" or "Registrant") Amended and Restated 2003 Stock Option Plan
(the "Option Plan") as a result of a stock split, stock dividend or
similar adjustment of the outstanding common stock, par value $.10 per
share ("Common Stock"), of the Company.
(2) The 204,081 shares represent shares of Common Stock for which options
have been granted under the Option Plan as of the date hereof but not
yet exercised. The Proposed Maximum Offering Price Per Share is equal
to the weighted average exercise price of the options and estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(h)(1) promulgated under the Securities Act of 1933, as amended
("Securities Act").
__________________________
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 I
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
________________
* The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act. Such documents are not being filed with the Securities
and Exchange Commission ("SEC") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule
424 of the Securities Act. Such documents and the documents
incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II hereof, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
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 SEC are
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 2004 (file No. 000-23433) filed with the SEC
on June 29, 2004;
(b) All other reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "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 Item 1, "Description of Registrant's Securities to be
Registered" in the Company's Registration Statement on Form
8-A as filed on January 7, 2003 (File No. 000-23433); and
(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.
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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.
Item 5. Interests of Named Experts and Counsel.
Not applicable to this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, among other things,
empowers a Delaware corporation 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 the person is or was a director, officer, employee or
agent of the corporation, or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
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 the person's conduct was unlawful. Similar
indemnity is authorized for such person against expenses (including attorneys'
fees) actually and reasonably incurred in connection with the defense or
settlement of any such threatened, pending or completed 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, and provided further that
(unless a court of competent jurisdiction otherwise provides) he shall not
have been adjudged liable to the corporation. Any such indemnification (unless
ordered by a court) may be made by the corporation only as authorized in each
specific case by the corporation upon a determination that indemnification of
the present or former director, officer, employee or agent is proper because
such person has met the applicable standard of conduct, which indemnification
shall be made in the case of a director or officer at the time of the
determination by the shareholders, a majority vote of disinterested directors,
a committee of disinterested directors or by independent legal counsel in a
written opinion, if no such directors.
Section 145 further authorizes a corporation to 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, officer, employee or agent of another
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corporation, partnership, joint venture, trust or other enterprise, against
any liability asserted against such person, and incurred by such person in
any such capacity, or arising out of such person's status as such, whether or
not the corporation would otherwise have the power to indemnify such person
against such liability under Section 145.
Articles TENTH and ELEVENTH of the Certificate of Incorporation of Wayne
Savings Bancshares, Inc. (referred to below in this Item 6 as the
"Corporation") set forth circumstances under which directors, officers,
employees and agents of the Corporation may be indemnified against liability
or absolved from liability that 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 or
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
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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
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
6
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.
* * *
In addition, the Company has entered into Employment Agreements with
Charles F. Finn, Wanda Christopher-Finn, Michael C. Anderson and Bryan K. Fehr
pursuant to which the Company has undertaken contractually to provide
indemnification in the manner described above.
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.
(a) 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. Description of Exhibit
-- ----------------------
4.0 Form of Common Stock Certificate*
5.0 Opinion of Elias, Matz, Tiernan & Herrick L.L.P. as to the
legality of the Common Stock
10.0 Wayne Savings Bancshares, Inc. Amended and Restated 2003
Stock Option Plan**
23.1 Consent of Elias, Matz, Tiernan & Herrick L.L.P. (contained
in the opinion included as Exhibit 5.0)
7
No. Description of Exhibit
-- ----------------------
23.2 Consent of Grant Thornton LLP
24.0 Power of attorney for any subsequent amendments is located
in the signature pages
_______________
* Incorporated by reference from Exhibit 4 to the Company's Registration
Statement on Form SB-2 (Commission File No. 333-69600) filed with the
SEC on September 18, 2001, as amended.
** Incorporated by reference from the Company's Proxy Statement on Schedule
14A filed with the SEC on June 24, 2004 (File No. 000-23433).
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;
(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 to 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, 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.
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4. That, for the purposes of determining any liability under the
Securities Act, 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.
5. To deliver or cause to be delivered with the Prospectus, to each
person to whom the Prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the Prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Act; and, where interim financial information required to
be presented by Article 3 of Regulation S-X is not set forth in the
Prospectus, to deliver, or cause to be delivered to each person to whom the
Prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the Prospectus to provide such interim financial
information.
6. 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 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 questions 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.
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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 Wooster, State of Ohio, on this 23rd
day of September 2004.
Wayne Savings Bancshares, Inc.
By: /s/ Charles F. Finn
-------------------------------------
Charles F. Finn
Chairman of the Board, 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 Charles F. Finn his or her 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.
Name Title Date
- ---------------------- ----------------------------- -------------------
/s/ Charles F. Finn Chairman of the Board, September 23, 2004
- ------------------- President and Chief Executive
Charles F. Finn Officer (principal executive
officer)
/s/ Michael C. Anderson Executive Vice President and September 23, 2004
- ----------------------- Chief Financial Officer
Michael C. Anderson
/s/ Myron Swartzentruber Vice President (principal September 23, 2004
- ------------------------ accounting officer)
Myron Swartzentruber
/s/ Russell L. Harpster Director September 23, 2004
- -----------------------
Russell L. Harpster
Name Title Date
- ---------------------- ----------------------------- -------------------
/s/ Terry A. Gardner Director September 23, 2004
- --------------------
Terry A. Gardner
/s/ Frederick J. Krum Director September 23, 2004
- ---------------------
Frederick J. Krum
/s/ Kenneth R. Lehman Director September 23, 2004
- ---------------------
Kenneth R. Lehman
/s/ James C. Morgan Director September 23, 2004
- -------------------
James C. Morgan
/s/ Joseph L. Retzler Director September 23, 2004
- ---------------------
Joseph L. Retzler