<PAGE> 1
As filed with the Securities and Exchange
Commission on May 25, 1999.
Registration Statement No. 333-________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
METROPOLITAN FINANCIAL CORP.
(Exact name of registrant as specified in its charter)
OHIO 34-1109469
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
6001 Landerhaven Drive
Mayfield Heights, Ohio 44124
(Address of principal executive offices)
METROPOLITAN BANK AND TRUST COMPANY
401(K) PLAN
(Full title of the plan)
----------------------------
David G. Lodge
President, Assistant Secretary
and Assistant Treasurer
6001 Landerhaven Drive
Mayfield Heights, Ohio 44124
(440) 646-1111
(Name, address, and telephone number, including area code, of
agent for service)
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Proposed
Proposed maximum
maximum aggregate
Title of securities to offering price offering Amount of
be registered Amount to be registered per share(2) price (2) registration fee (2)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of Common Stock, 100,000 shs.(1) $8.00 $800,000 $222.40
without par value
Plan Interests Indeterminate(3)
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Maximum number of shares available for purchase under the Plan.
(2) Estimated in accordance with Rule 457(c) and 457(h) under the Securities
Act of 1933, as amended (the "Securities Act"), solely for purposes of
calculating the registration fee. The fee with respect to the shares
registered herein is based on the average of the bid and asked sale prices
on May 19, 1999 of the Registrant's Common Stock as reported on The Nasdaq
Stock Market.
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
registration statement on Form S-8 (the "Registration Statement") will be sent
or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act. Such documents and the documents incorporated by reference
herein 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 heretofore filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference and
made a part hereof:
(a) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998, as amended;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999; and
(c) a description of the Registrant's capital stock contained in the
Registration Statement on Form 8-A dated October 15, 1996, filed under
Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
All documents filed by the Registrant and the Plan pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act after the date of this
Registration Statement 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 shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of this Registration
Statement from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
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<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Ohio law, Ohio corporations are authorized to indemnify
directors, officers, employees, and agents ("Covered Persons") within prescribed
limits and must indemnify them under certain circumstances. Ohio law permits a
corporation to indemnify a Covered Person against expenses, judgments, fines,
and settlements reasonably incurred in a nonderivative suit, and against
expenses reasonably incurred in a derivative suit, if the Covered Person acted
in good faith and in a manner reasonably believed to be in or not opposed to the
best interest of the corporation. In addition, Ohio law permits a corporation to
indemnify a Covered Person in a criminal action or proceeding, other than in a
derivative suit, if the person had no reasonable cause to believe his or her
conduct was unlawful.
Unless ordered by a court, no indemnification of expenses in a
derivative suit is authorized by Ohio law if the Covered Person is ultimately
adjudged to be liable for negligence or misconduct in the performance of his or
her duty to the corporation. However, if a Covered Person is successful on the
merits or in defense on a matter, indemnification of expenses is mandatory. In
addition, unless otherwise provided in the articles or regulations of the
corporation, under Ohio law, a director's expenses shall be paid by the
corporation as they are incurred, provided the director agrees to reasonably
cooperate with the corporation and to repay the amounts advanced if it is proved
by clear and convincing evidence that the director's action or failure to act
was done with reckless disregard for the best interests of the corporation.
Under Ohio law, a director is not liable for monetary damages unless it
is proved by clear and convincing evidence that the director's action or failure
to act was undertaken with deliberate intent to cause injury to the corporation
or with reckless disregard for the best interests of the corporation. There is,
however, no comparable provision limiting the liability of officers, employees,
or agents of a corporation. The statutory right to indemnification is not
exclusive in Ohio, and is in addition to any other rights granted to persons
seeking indemnification.
Article IV of the Code of Regulations of the Registrant provides that
the Registrant shall indemnify, to the full extent permitted by the Ohio General
Corporation Law as it may be amended, any person made or threatened to be made a
party to any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, by reason of the fact
that he or she is or was a director, officer, employee, or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, trustee, employee, member, manager, or agent of another corporation,
bank, limited liability company, partnership, joint venture, trust or other
enterprise. The indemnification provided by Article IV continues as to a person
who has ceased to be a director, officer, employee, or agent and inures to the
benefit of the heirs, executors, and administrators of such a person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
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<PAGE> 4
ITEM 8. EXHIBITS
The Exhibits to the Registration Statement are listed in the Exhibit
Index on page 7 of this Registration Statement. The Registrant hereby undertakes
to submit the Plan and any amendment thereto to the Internal Revenue Service in
a timely manner and to make all changes required by the Internal Revenue Service
in order to qualify the Plan.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section l0(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(l)(i) and (a)(l)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and 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 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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<PAGE> 5
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act and each filing of the Plan's annual report pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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<PAGE> 6
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, 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 Mayfield Heights, State of Ohio, on May 25, 1999.
METROPOLITAN FINANCIAL CORP.
By: /s/ David G. Lodge
----------------------------------------------
David G. Lodge, President, Assistant Secretary
and Assistant Treasurer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of May 25, 1999.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Robert M. Kaye Chairman of the Board, Chief Executive Officer and
- ----------------------- Director (Principal Executive Officer)
Robert M. Kaye
/s/ David G. Lodge President, Assistant Secretary, Assistant
- ----------------------- Treasurer and Director (Principal Financial and
David G. Lodge Accounting Officer)
/s/ Malvin E. Bank Director
- -----------------------
Malvin E. Bank
/s/ Robert R. Broadbent Director
- -----------------------
Robert R. Broadbent
/s/ Marjorie M. Carlson Director
- -----------------------
Marjorie M. Carlson
/s/ Lois K. Goodman Director
- -----------------------
Lois K. Goodman
/s/ Marguerite B. Humphrey Director
- -----------------------
Marguerite B. Humphrey
</TABLE>
(Signatures continued on next page)
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<PAGE> 7
(Signatures continued from previous page)
/s/ James A. Karman Director
- -----------------------
James A. Karman
/s/ Ralph D. Ketchum Director
- -----------------------
Ralph D. Ketchum
/s/ Alfonse M. Mattia Director
- -----------------------
Alfonse M. Mattia
/s/ David P. Miller Director
- -----------------------
David P. Miller
The Plan. Pursuant to the requirements of the Securities Act, the
trustee has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Mayfield Heights,
State of Ohio, on May 25, 1999.
METROPOLITAN BANK AND TRUST
COMPANY 401(K) PLAN
By: /s/ David G. Lodge
--------------------------------
David G. Lodge, as trustee
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<PAGE> 8
METROPOLITAN FINANCIAL CORP.
INDEX TO EXHIBITS
Exhibit Description
- ------- -----------
4.1 Amended and Restated Articles of Incorporation of the
Registrant (filed as Exhibit 2 to the Registrant's Form
8-A filed with the Commission on October 15, 1996 and
incorporated herein by reference).
4.2 Amended and Restated Code of Regulations of the
Registrant (filed as Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 filed with the
Commission on February 26, 1999 and incorporated herein
by reference).
*5 Opinion of Thompson Hine & Flory LLP as to the
legality of the securities to be registered.
*23.1 Consent of Independent Auditors.
*23.2 Consent of Thompson Hine & Flory LLP (included as
part of Exhibit 5).
- -------------
* Filed herewith.
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EXHIBIT 5
May 25, 1999
Metropolitan Financial Corp.
6001 Landerhaven Drive
Mayfield Heights, Ohio 44124
Re: Metropolitan Financial Corp. Registration Statement on Form S-8
-- Metropolitan Bank and Trust Company 401(k) Plan
Ladies and Gentlemen:
Metropolitan Financial Corp. ("Metropolitan") is filing with the
Securities and Exchange Commission a Registration Statement on Form S-8 (the
"Registration Statement") for the registration, under the Securities Act of
1933, as amended, of 100,000 Common Shares, without par value, of Metropolitan
("Metropolitan Common Shares") to be issued from time to time pursuant to the
terms of the Metropolitan Bank and Trust Company 401(k) Plan (the "Plan").
Item 601 of Regulation S-K and the instructions to Form S-8 require
that an opinion of counsel concerning the legality of the securities to be
registered be filed as an exhibit to a Form S-8 registration statement if the
securities are original issue shares. This opinion is provided in satisfaction
of that requirement as it relates to the Registration Statement.
In rendering this opinion, we have examined (a) the Articles of
Incorporation and Code of Regulations of Metropolitan, (b) the Plan, and (c)
such records and documents as we have deemed advisable in order to render this
opinion. As a result of the foregoing, we are of the opinion that:
(1) Metropolitan is a corporation validly organized and
existing and in good standing under the laws of the State of Ohio.
(2) When issued, the Metropolitan Common Shares which are the
subject of the Registration Statement will be legally issued, fully
paid, and non-assessable.
We hereby consent to the use and filing of this opinion in connection
with the Registration Statement.
Very truly yours,
/s/ Thompson Hine & Flory LLP
Thompson Hine & Flory LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation in this registration statement of the
Metropolitan Bank & Trust Company 401(K) Plan on Form S-8 of our report dated
February 12, 1999 on the consolidated financial statements of Metropolitan
Financial Corp. as of December 31, 1998 and 1997 and for each of the three years
in the period ended December 31, 1998.
/s/ Crowe, Chizek and Company LLP
Crowe, Chizek and Company LLP
Cleveland, Ohio
May 24, 1999
