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Registration No. 333-________
Filed February 25, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIDELITY FINANCIAL OF OHIO, INC.
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(Exact Name of Registrant as specified in its Certificate of Incorporation)
Ohio
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(State or other jurisdiction of incorporation)
31-1455721
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(IRS Employer Identification No.)
4555 Montgomery Road, Cincinnati, Ohio 45212
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(Address of principal executive offices) (Zip code)
1992 STOCK INCENTIVE PLAN
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(Full Title of the Plan)
Copies to:
John R. Reusing Jeffrey D. Haas, Esq.
President and Chief Scott H. Richter, Esq.
Executive Officer Elias, Matz, Tiernan & Herrick L.L.P.
Fidelity Financial of Ohio, Inc. 734 15th Street, N.W.
4555 Montgomery Road Washington, D.C.
Cincinnati, Ohio 45212 (202) 347-0300
(513) 351-6666
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(Name, address, and telephone number
of agent for service)
Page 1 of 14 pages
Index to Exhibits is located on page 8.
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CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount to Maximum Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
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Common Stock,
par value $.10 61,015 $4.46(2) $272,127(2) $82.46
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Fidelity Financial of Ohio, Inc. ("Company" or "Registrant") 1992 Stock
Incentive Plan ("Incentive Plan") as a result of a stock split, stock
dividend or similar adjustment of the outstanding common stock, $.10 par
value per share ("Common Stock"), of the Company.
(2) 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 to purchase 61,015 shares of Common Stock which are
outstanding under the Incentive Plan as of the date hereof.
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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 description of the Common Stock of the Company contained in
"Description of Capital Stock of the Company" in the prospectus included in
the Company's Registration Statement on Form S-1 (File No. 33-99304) filed
with the Commission on November 14, 1995, as amended;
(b) All 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 financial statements
in the prospectus 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 8-A filed with the Commission
on February 29, 1996;
(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 since the Company's 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 it self, 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,
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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,
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;
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(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
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.
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(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 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 since no restricted securities will be reoffered or resold
pursuant to this Registration Statement.
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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 Page
4 Common Stock Certificate* --
5 Opinion of Elias, Matz, Tiernan & Herrick E-1
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 Consent of Grant Thornton LLP E-3
24 Power of attorney for any subsequent --
amendments is located in the signature pages
99.1 1992 Stock Incentive Plan* --
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* Incorporated by reference from the Company's Registration Statement on Form
S-1 (Commission File No. 33-99304) filed with the Commission on November
14, 1995, as amended.
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 in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the
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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.
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. 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 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 expressed in the Securities Act 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 State of Ohio on February 20, 1997.
FIDELITY FINANCIAL OF OHIO, INC.
By: /s/ John R. Reusing
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John R. Reusing
President and Chief Financial 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 John R. Reusing 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 February 20, 1997
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John R. Reusing
President and Chief Executive Officer
(Principal Executive Officer)
/s/ Michael W. Jordon February 20, 1997
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Michael W. Jordon
/s/ David A. Luecke February 20, 1997
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David A. Luecke
Director
February __, 1997
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Constantine N. Papadakis
Director
/s/ Robert W. Zumbiel February 20, 1997
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Robert W. Zumbiel
Director
/s/ Paul D. Staubach February 20, 1997
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Paul D. Staubach
Senior Vice President and Chief
Financial Officer (Principal
Financial Officer)
February __, 1997
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Thomas N. Spaeth
Director
February 20, 1997
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Joseph D. Hughes
Director
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Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
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TIMOTHY B. MATZ Telephone: (202) 347-0300 JEFFREY D. HAAS
STEPHEN M. EGE Facsimile: (202) 347-2172 KEVIN M. HOULIHAN
W. MICHAEL HERRICK KENNETH B. TABACH
GERARD L. HAWKINS PATRICIA J. WOHL
NORMAN B. ANTIN JEFFREY R. HOULE
JOHN P. SOUKENIK* SCOTT H. RICHTER
GERALD F. HEUPEL, JR.
JEFFREY A. KOEPPEL
DANIEL P. WEITZEL ------------
PHILIP ROSS BEVAN OF COUNSEL
HUGH T. WILKINSON
ALLIN P. BAXTER
February 25, 1997 JACK I. ELIAS
SHERYL JONES ALU
*NOT ADMITTED IN D.C.
Board of Directors
Fidelity Financial of Ohio, Inc.
4555 Montgomery Road
Cincinnati, Ohio 45212
Re: Registration Statement on Form S-8
61,015 Shares of Common Stock
Gentlemen:
We are special counsel to Fidelity Financial of Ohio, Inc., an Ohio
corporation (the "Corporation"), in connection with the preparation and filing
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement"), relating to the registration of up to 61,015 shares of common
stock, par value $.10 per share ("Common Stock"), to be issued upon the exercise
of stock options and/or appreciation rights (referred to as "Option Rights")
granted pursuant to the Corporation's 1992 Stock Incentive Plan ("Incentive
Plan"). The Registration Statement also registers an indeterminate number of
additional shares which may be necessary under the Incentive Plan to adjust the
number of shares reserved thereby for issuance as the result of a stock split,
stock dividend or similar adjustment of the outstanding and issued Common Stock
of the Corporation. We have been requested by the Corporation to furnish an
opinion to be included as an exhibit to the Registration Statement.
For this purpose, we have reviewed the Registration Statement and related
Prospectus, the Articles of Incorporation and Bylaws of the Corporation, the
Incentive Plan, a specimen stock certificate evidencing the Common Stock of the
Corporation and such other corporate records and documents as we have deemed
appropriate. We are relying upon the originals, or copies certified or
otherwise identified to our satisfaction, of the corporate records of the
Corporation and such other instruments, certificates and representations of
public officials, officers and representatives of the Corporation as we have
deemed relevant as a basis for this opinion. In addition, we have assumed,
without independent verification, the genuineness of all signatures and the
authenticity of all documents furnished to us and the
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conformance in all respects of copies to originals. Furthermore, we have
made such factual inquiries and reviewed such laws as we determined to be
relevant for this opinion.
For purposes of this opinion, we have also assumed that (i) the shares of
Common Stock issuable pursuant to Option Rights granted under the terms of the
Incentive Plan will continue to be validly authorized on the dates the Common
Stock is issued pursuant to the exercise of Option Rights; (ii) on the dates the
Option Rights are exercised, the Option Rights granted under the terms of the
Incentive Plan will constitute valid, legal and binding obligations of the
Corporation and will (subject to applicable bankruptcy, moratorium, insolvency,
reorganization and other laws and legal principles affecting the enforceability
of creditors' rights generally) be enforceable as to the Corporation in
accordance with their terms; (iii) the Option Rights are exercised in accordance
with their terms and the exercise price therefor is paid in accordance with the
terms thereof; (iv) no change occurs in applicable law or the pertinent facts;
and (iv) the provisions of "blue sky" and other securities laws as may be
applicable will have been complied with to the extent required.
Based on the foregoing, and subject to the assumptions set forth herein,
we are of the opinion as of the date hereof that the shares of Common Stock to
be issued pursuant to the Incentive Plan, when issued and sold pursuant to the
Incentive Plan and upon receipt of the consideration required thereby, will be
legally issued, fully paid and non-assessable shares of Common Stock of the
Corporation.
We hereby consent to the reference to this firm under the caption "Legal
Opinion" in the Prospectus of the Incentive Plan and to the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
By: /s/ Jeffrey D. Haas
Jeffrey D. Haas, a Partner
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CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use
of our report on the financial statements of Fidelity Financial of Ohio, Inc.
(formerly Fidelity Federal Savings Bank) as of December 31, 1995 and 1994, and
for each of the years in the three-year period ended December 31, 1995, and to
all references to our firm included in or made a part of the Registration
Statement.
/s/ Grant Thornton LLP
Cincinnati, Ohio
February 11, 1997
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