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As filed with the Securities and Exchange Commission on August 28, 1997
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
WAYNE BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CERTIFICATE OF INCORPORATION)
DELAWARE 6035 22-3424621
(state or other jurisdiction of (Primary Standard (IRS Employer
incorporation or organization) Classification Code Number) Identification No.)
1195 HAMBURG TURNPIKE
WAYNE, NEW JERSEY 07474
(793) 305-5500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
WAYNE SAVINGS BANK FSB
401(K) PROFIT SHARING RETIREMENT PLAN
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
JOHANNA O'CONNELL COPIES TO:
PRESIDENT LORI M. BERESFORD, ESQUIRE
WAYNE BANCORP, INC. GEOFFREY W. RYAN, ESQUIRE
1195 HAMBURG TURNPIKE MULDOON, MURPHY & FAUCETTE
WAYNE, NEW JERSEY 07474 5101 WISCONSIN AVENUE, N.W.
(201) 305-5500 WASHINGTON, D.C. 20016
(202) 362-0840
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. / X /
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to Offering Price Aggregate Offering Registration
to be Registered be Registered Per Share (1) Price (2) Fee
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<S> <C> <C> <C> <C>
Common Stock 40,000
$.01 par Value Shares $24.25 $970,000 $294
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Participation
Interests (3) ----- ------- (4)
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</TABLE>
(1) The closing price of the Common Stock of Wayne Bancorp, Inc. (the "Common
Stock") on the Nasdaq National Market on August 21, 1997 in accordance with
Rule 457(c) under the Securities Act of 1933, as amended (the "Securities
Act").
(2) Estimated solely for the purpose of calculating the registration fee.
(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.
(4) The securities of Wayne Bancorp, Inc. to be purchased by the Wayne Savings
Bank, FSB 401(k) Profit Sharing Retirement Plan are included in the amount
shown for Common Stock. Accordingly, no separate fee is required for the
participation interests. In accordance with Rule 457(h) under the Securities
Act, the registration fee has been calculated on the basis of the number of
shares of Common Stock that may be purchased with the current assets of such
Plan.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, AND 17
C.F.R. SS. 230.462.
Number of Pages 11 Exhibit Index begins on Page 6
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the Wayne Savings
Bank, FSB 401(k) Profit Sharing Retirement Plan ("401(k) Plan") required by Part
I of the Registration Statement will be sent or given to the participants in the
401(k) Plan as specified by Rule 428(b)(1). Such documents are not filed with
the Securities and Exchange Commission (the "SEC") either as a part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 in reliance on Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN 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
December 31, 1996, which includes the consolidated statements of financial
condition of the Company and subsidiary as of December 31, 1996, and the related
consolidated statements of operations, equity and cash flows for each of the
years in the three year period ended December 31, 1996, together with the
related notes (File No. 0-20691) filed with the SEC on March 28, 1997.
(b) The 401(k) Plan's annual report on Form 11-K for the fiscal year ended
December 31, 1996, filed with the SEC on July 14, 1997.
(c) The Forms 10-Q for the fiscal quarters ended March 31, 1997 and June
30, 1997 filed by the Company with the SEC (File No. 0-20691) on May 13, 1997
and August 14, 1997, respectively.
(d) The description of the Company's Common Stock contained in Registrant's
Form 8-A (File No. 0-20691), as filed with the SEC pursuant to Section 12(g) of
the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 12b-15
promulgated thereunder on May 9, 1996 and declared effective on May 13, 1996, as
incorporated by reference from the Company's Registration Statement on Form S-1
(SEC File No. 333-2488) declared effective on May 13, 1996.
(e) All documents filed by the Registrant and the Plan (if applicable)
pursuant to Section 13(a) and (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 INCORPORATED OR 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.
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ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
The consolidated statements of financial condition of the Company and
subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of operations, equity and cash flows for each of the years in the
three-year period ended December 31, 1996, together with the related notes and
the report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference in this Registration Statement, have been incorporated
herein in reliance upon the authority of said firm as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held harmless
against liability to the fullest extent permissible by the General Corporate
Laws of Delaware as it currently exists or as it may be amended provided such
amendment provides broader indemnification provisions than currently exists.
This indemnification applies to the Board of Directors who administers the
401(k) Plan.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of the
Registrant's Restated Certificate of Incorporation provide as follows:
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
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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, services to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article TENTH shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
Director, Officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in full
by the Corporation within sixty days after a written claim has been received by
the Corporation, except in the case of a claim for an advancement of expenses,
in which case the applicable period shall be twenty days, the indemnitee may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the indemnitee shall be entitled to be paid also
the expenses 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
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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 subsidiary or
Affiliate or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
ELEVENTH:
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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 stockholder; (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.
The Registrant is also permitted to maintain directors' and officers' liability
insurance covering its directors and officers and has obtained a directors' and
officers' liability and corporation reimbursement policy which (subject to
certain limits and deductibles)(i) insures officers and directors of the
Registrant against loss arising from certain claims made against them by reason
of their being such directors or officers, and (ii) insures the Registrant
against loss which it may be required or permitted to pay as indemnification
due its directors or officers for certain claims.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 (the "Securities Act") may be permitted to directors, officers or persons
controlling the Registrant, the Registrant has been informed that in the
opinion of the Commission that such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
the Registration Statement on Form S-8 (numbering corresponds generally
to Exhibit Table in Item 601 of Registration S-E):
(a) List of Exhibits (filed herewith unless otherwise noted)
4.0 Stock Certificate of Wayne Bancorp, Inc.1
8.0 Tax Opinion not required. The Registrant has submitted or hereby
undertakes to submit the 401(k) Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify the Plan.
23.1 Consent of KPMG Peat Marwick LLP
24.1 Powers of Attorney (contained on the signature page)
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1 Incorporated herein by reference to the Exhibit of the same number contained
in the Registration Statement on Form S-1 (SEC No. 333-2488) as amended,
filed with the SEC on March 18, 1996 and declared effective by the SEC on
May 13, 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 to such information in the
Registration Statement
unless the information required by (i) and (ii) is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference into
this Registration Statement;
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(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 th 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's or the Plan's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
directors, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Wayne Bancorp, Inc. 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 Wayne, State of New Jersey, on August 26, 1997.
WAYNE BANCORP, INC.
By:/s/ Johanna O'Connell
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Johanna O'Connell
President
Each person whose individual signature appears below hereby makes,
constitutes and appoints Harold P. Cook, III or Johanna O'Connell to sign for
such person and in such person's name and capacity indicated below, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
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.
Name Title Date
---- ----- ----
/s/ Harold P. Cook, III Chief Executive Officer and August 26, 1997
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Harold P. Cook, III Chairman of the Board of
Directors (principal executive
officer)
/s/ Johanna O'Connell President and Director August 26, 1997
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Johanna O'Connell
/s/ Timothy P. Tierney Vice President and August 26, 1997
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Timothy P. Tierney Comptroller (principal
financial and accounting officer)
/s/ William J. Lloyd Director August 26, 1997
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William J. Lloyd
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/s/ David M. Collins Director August 26, 1997
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David M. Collins
/s/ Thomas D. Collins Director August 26, 1997
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Thomas D. Collins
/s/ Nicholas S. Gentile, Jr. Director August 26, 1997
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Nicholas S. Gentile, Jr.
/s/ Ronald Higgins Director August 26, 1997
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Ronald Higgins
/s/ Richard Len Director August 26, 1997
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Richard Len
/s/ Charles Lota Director August 26, 1997
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Charles Lota
/s/ Dennis Pollack Director August 26, 1997
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Dennis Pollack
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the 401(k) Plan) have duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Wayne, State of New Jersey, on August 26, 1997.
WAYNE SAVINGS BANK, FSB 401(k) PROFIT
SHARING RETIREMENT PLAN
By:/s/ Michael G. DeBenedette
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Michael G. DeBenedette
Administrator
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EXHIBIT 23.1 CONSENT OF KPMG PEAT MARWICK LLP
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INDEPENDENT AUDITOR'S CONSENT
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We consent to incorporation by reference in the registration statement on Form
S-8 of Wayne Bancorp, Inc., regarding the Wayne Savings Bank FSB 401(k) Profit
Sharing Retirement Plan, of our report dated January 15, 1997, relating to the
consolidated statements of financial condition of Wayne Bancorp, Inc. and
subsidiary as of December 31, 1996 and 1995, and the related consolidated
statements of income, changes in stockholders' equity, and cash flows for each
of the years in the three-year period ended December 31, 1996 which report is
incorporated by reference in the December 31, 1996 annual report on Form 10-K of
Wayne Bancorp, Inc.
/s/ KPMG PEAT MARWICK LLP
Short Hills, New Jersey
August 22, 1997
