Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
__________________________________
COLUMBIA FINANCIAL OF KENTUCKY, INC.
(Exact name of Registrant as specified in its Articles)
Ohio 61-1319175
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2497 Dixie Highway
Ft. Mitchell, Kentucky 41017
(Address of Principal Executive Offices)
Columbia Financial of Kentucky, Inc.
1999 Stock Option and Incentive Plan
(Full title of the plan)
Robert V. Lynch
Columbia Financial of Kentucky, Inc.
2497 Dixie Highway
Ft. Mitchell, Kentucky 41017
(Name and address of agent for service)
(606) 331-2419
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to offering price aggregate Amount of
to be registered be registered per share offering price registration fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares
No par value 266,095 $ * $2,953,192 $820.99
<FN>
<F*> Of the 266,095 shares being registered, 252,600 may be purchased for
$11.00 per share, upon the exercise of options already granted. The
offering price of the remaining 13,495 shares, which have been
reserved for the future grant of options, has been determined for
purposes of calculating the registration fee pursuant to 17 C.F.R.
[Section] 230.457(h) to be $12.9375 per share on August 16, 1999.
</FN>
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1998, and all documents filed with the Commission
pursuant to the requirements of Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 ("Exchange Act") since that date are hereby
incorporated by reference.
The description of the Common Shares of the Registrant contained in
the Registrant's Form 8-A, filed with the Commission on March 20, 1998, is
hereby incorporated by reference.
Any definitive Proxy Statement or Information Statement filed
pursuant to Section 14 of the Exchange Act and all documents which may be
filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date hereof 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
also be deemed to be incorporated herein by reference and to be made a part
hereof from the date of filing such documents.
ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
None.
ITEM 6. Indemnification of Directors and Officers.
A. Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by a corporation and provides as follows:
(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, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments,
fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding
if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, if he had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, by
reason of the fact that he is or was a director, officer, employee,
or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best 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 divisions (E)(1) and (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 any such action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of
this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney, or
a firm having associated with it an attorney, who has been
retained by or who has performed services for the corporation
or any person to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which
such 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 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 receipt of an undertaking by or on behalf of the director,
trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights
granted to those seeking indemnification under the articles, the
regulations, any agreement, a vote of shareholders or disinterested
directors, or otherwise, both as to action in their official
capacities and as to action in another capacity while holding their
offices or positions, and shall continue as to a person who has
ceased to be a director, trustee, officer, employee, member, manager,
or agent and shall inure to the benefit of the heirs, execute, 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, member, manager,
or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, 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 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 this division, references to "corporation"
includes all constituent corporations 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 corporation, or is or was serving at the
request of such constituent 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,
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.
B. Article Five of the Registrant's Code of Regulations provides
for the indemnification of officers and directors as follows:
Section 5.01. Indemnification. The corporation shall
indemnify any officer or director of the corporation 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, without limitation, any
action threatened or instituted by or in the right of the
corporation), by reason of the fact that he is or was a director,
officer, employee, agent or volunteer of the corporation, or is or
was serving at the request of the corporation as a director, trustee,
officer, employee, member, manager, agent or volunteer of another
corporation (domestic or foreign, nonprofit or for profit), limited
liability company, partnership, joint venture, trust or other
enterprise, against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript
costs), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if his act or omission giving rise to any claim for
indemnification under this Section 5.01 was not occasioned by his
intent to cause injury to the corporation or by his reckless
disregard for the best interests of the corporation, and in respect
of any criminal action or proceeding, he had no reasonable cause to
believe his conduct was unlawful. It shall be presumed that no act
or omission of a person claiming indemnification under this Section
5.01 that gives rise to such claim was occasioned by an intent to
cause injury to the corporation or by a reckless disregard for the
best interests of the corporation and, in respect of any criminal
matter, that such person had no reasonable cause to believe his
conduct was unlawful; the presumption recited in this Section 5.01
can be rebutted only by clear and convincing evidence, and the
termination of any action, suit or proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything
contained in the Regulations or elsewhere to the contrary
notwithstanding:
(A) the corporation shall not indemnify any officer or
director of the corporation who was a party to any completed
action or suit instituted 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, agent or volunteer
of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member,
manager, agent or volunteer of another corporation (domestic or
foreign, nonprofit or for profit), limited liability company,
partnership, joint venture, trust or other enterprise, in
respect of any claim, issue or matter asserted in such action
or suit as to which he shall have been adjudged to be liable
for an act or omission occasioned by his deliberate intent to
cause injury to the corporation or by his reckless disregard
for the best interests of the corporation, unless and only to
the extent that the Court of Common Pleas of Hamilton County,
Ohio or the court in which such action or suit was brought
shall determine upon application that, despite such
adjudication of liability, and in view of all the circumstances
of the case, he is fairly and reasonably entitled to such
indemnity as such Court of Common Pleas or such other court
shall deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything
contained in the Regulations or elsewhere to the contrary
notwithstanding, to the extent that an officer or director of the
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section 5.01, or in
defense of any claim, issue or matter therein, he shall be promptly
indemnified by the corporation against expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) actually and reasonably incurred by him in
connection therewith.
Section 5.04. Determination Required. Any indemnification
required under Section 5.01 and not precluded under Section 5.02
shall be made by the corporation only upon a determination that such
indemnification is proper in the circumstances because the officer or
director has met the applicable standard of conduct set forth in
Section 5.01. Such determination may be made only (A) by a majority
vote of a quorum consisting of directors of the corporation who were
not and are not parties to, or threatened with, any such action, suit
or proceeding, or (B) if such a quorum is not obtainable or if a
majority 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, or (C) by the
shareholders, or (D) by the Court of Common Pleas of Hamilton County,
Ohio or (if the corporation is a party thereto) the court in which
such action, suit or proceeding was brought, if any; any such
determination may be made by a court under division (D) of this
Section 5.04 at any time including, without limitation, any time
before, during or after the time when any such determination may be
requested of, be under consideration by or have been denied or
disregarded by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders
under division (C) of this Section 5.04; and no failure for any
reason to make any such determination, and no decision for any reason
to deny any such determination, by the disinterested directors under
division (A) or by independent legal counsel under division (B) or by
the shareholders under division (C) of this Section 5.04 shall be
evidence in rebuttal of the presumption recited in Section 5.01. Any
determination made by the disinterested directors under division (A)
or by independent legal counsel under division (B) of this Section
5.04 to make indemnification in respect of any claim, issue or matter
asserted in an action or suit threatened or brought by or in the
right of the corporation shall be promptly communicated to the person
who threatened or brought such action or suit, and within ten (10)
days after receipt of such notification such person shall have the
right to petition the Court of Common Pleas of Hamilton County, Ohio
or the court in which such action or suit was brought, if any, to
review the reasonableness of such determination.
Section 5.05. Advances for Expenses. The provisions of
Section 1701.13(E)(5)(a) of the Ohio Revised Code do not apply to the
corporation. Expenses (including, without limitation, attorneys'
fees, filing fees, court reporters' fees and transcript costs)
incurred in defending any action, suit or proceeding referred to in
Section 5.01 shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding to or on behalf of the
officer or director promptly as such expenses are incurred by him,
but only if such officer or director shall first agree, in writing,
to repay all amounts so paid in respect of any claim, issue or other
matter asserted in such action, suit or proceeding in defense of
which he shall not have been successful on the merits or otherwise if
it is proved by clear and convincing evidence in a court of competent
jurisdiction that, in respect of any such claim, issue or other
matter, his relevant action or failure to act was occasioned by his
deliberate intent to cause injury to the corporation or his reckless
disregard for the best interests of the corporation, unless, and only
to the extent that, the Court of Common Pleas of Hamilton County,
Ohio or the court in which such action or suit was brought shall
determine upon application that, despite such determination, and in
view of all of the circumstances, he is fairly and reasonably
entitled to all or part of such indemnification.
Section 5.06. Article Five Not Exclusive. The indemnification
provided by this Article Five shall not be exclusive of, and shall be in
addition to, any other rights to which any person seeking indemnification
may be entitled under the Articles, the Regulations, any agreement, a vote
of disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be an officer or
director of the corporation and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Section 5.07. Insurance. The corporation may purchase and maintain
insurance, or furnish similar protection, including but not limited to
trust funds, letters of credit, or self-insurance, for or on behalf of any
person who is or was a director, officer, employee, agent or volunteer of
the corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, agent or volunteer
of another corporation (domestic or foreign, nonprofit or for profit),
limited liability company, 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 obligation or the power to indemnify him
against such liability under the provisions of this Article Five.
Insurance may be purchased from or maintained with a person in which the
corporation has a financial interest.
Section 5.08. Certain Definitions. For purposes of this Article Five,
and as an example and not by way of limitation:
(A) A person claiming indemnification under this Article Five shall be
deemed to have been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 5.01, or in defense of
any claim, issue or other matter therein, if such action, suit or
proceeding shall be terminated as to such person, with or without
prejudice, without the entry of a judgment or order against him, without a
conviction of him, without the imposition of a fine upon him and without
his payment or agreement to pay any amount in settlement thereof (whether
or not any such termination is based upon a judicial or other determination
of the lack of merit of the claims made against him or otherwise results in
a vindication of him).
(B) References to an "other enterprise" shall include employee tax
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.
Section 5.09. Venue. Any action, suit or proceeding to determine a
claim for, or for repayment to the corporation of, indemnification under
this Article Five may be maintained by the person claiming such
indemnification, or by the corporation, in the Court of Common Pleas of
Hamilton County, Ohio. The corporation and (by claiming or accepting such
indemnification) each such person consent to the exercise of jurisdiction
over its or his person by the Court of Common Pleas of Hamilton County,
Ohio in any such action, suit or proceeding.
ITEM 7. Exemption from Registration Claimed.
Not Applicable.
ITEM 8. Exhibits.
See the Exhibit Index attached hereto.
ITEM 9. Undertakings.
A. 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities
offered (if the total dollar value of securities
offered would not exceed that which was registered)
and any deviation from the low or high end of the
estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than
a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration
Fee" table in the effective 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)(1)(i) and
(a)(1)(ii) of this section 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 section 15(d)
of the Securities Exchange Act of 1934, that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and,
where
applicable, each filing of an employee benefit plan's annual
report pursuant to section 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Ft. Mitchell, Commonwealth of
Kentucky, on August 12, 1999.
COLUMBIA FINANCIAL OF KENTUCKY, INC.
By: /s/ Robert V. Lynch
Robert V. Lynch
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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- ----
<S> <C> <C>
/s/ Robert V. Lynch President, Chief Executive August 12, 1999
Robert V. Lynch Officer and Director
/s/ Kenneth R. Kelly Director, Chairman of the Board August 12, 1999
Kenneth R. Kelly
/s/ John C. Layne Director August 12, 1999
John C. Layne
/s/ Daniel T. Mistler Director August 12, 1999
Daniel T. Mistler
/s/ Fred A. Tobergte, Sr. Director August 12, 1999
Fred A. Tobergte, Sr.
/s/ Geraldine Zembrodt Director August 12, 1999
Geraldine Zembrodt
/s/ Abijah Adams Treasurer August 12, 1999
Abijah Adams
EXHIBIT INDEX
Exhibit No. Document
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4(a) Columbia Financial of Kentucky, Inc. 1999 Stock Option and
Incentive Plan
4(b) Articles of Incorporation, as amended (Incorporated by
reference to the Form 8-A filed with the SEC on March 20,
1998, Exhibits 2(a) and (b))
5 Opinion of Vorys, Sater, Seymour and Pease LLP as to
legality of shares being offered
23(a) Consent of Independent Public Accountants
23(b) Consent of Vorys, Sater, Seymour and Pease LLP (contained
in Exhibit 5 herein)
</TABLE>
EXHIBIT 4(a)
COLUMBIA FINANCIAL OF KENTUCKY, INC.
1999 STOCK OPTION AND INCENTIVE PLAN
1. Purpose. The purpose of the Columbia Financial of Kentucky,
Inc., 1999 Stock Option and Incentive Plan (this "Plan") is to promote and
advance the interests of Columbia Financial of Kentucky, Inc. (the
"Company"), and its shareholders by enabling the Company to attract, retain
and reward directors, managerial and other key employees of the Company and
any Subsidiary (hereinafter defined), and to strengthen the mutuality of
interests between such directors and employees and the Company's
shareholders by providing such persons with a proprietary interest in
pursuing the long-term growth, profitability and inancial success of the
Company.
2. Definitions. For purposes of this Plan, the following terms
shall have the meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended, or any successor thereto, together with rules, regulations
and interpretations promulgated thereunder.
(c) "Committee" means the Committee of the Board constituted
as provided in Section 3 of this Plan.
(d) "Common Shares" means the common shares, without par
value, of the Company or any security of the Company issued in
substitution, in exchange or in lieu thereof.
(e) "Company" means Columbia Financial of Kentucky, Inc., an
Ohio corporation, or any successor corporation.
(f) "Employment" means regular employment with the Company or
a Subsidiary and does not include service as a director only.
(g) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any successor statute.
(h) "Fair Market Value" shall be determined as follows:
(i) If the Common Shares are traded on a national
securities exchange at the time of grant of the Stock Option,
then the Fair Market Value shall be the average of the highest
and the lowest selling price on such exchange on the date such
Stock Option is granted or, if there were no sales on such
date, then on the next prior business day on which there was a
sale.
(ii) If the Common Shares are quoted on The Nasdaq
Stock Market at the time of the grant of the Stock Option, then
the Fair Market Value shall be the mean between the closing bid
and closing asked quotation with respect to a Common Share on
such date on The Nasdaq Stock Market.
(iii) If the Common Shares are not traded on a national
securities exchange or quoted on The Nasdaq Stock Market, then
the Fair Market Value shall be as determined by the Committee.
(i) "Incentive Stock Option" means any Stock Option granted
pursuant to the provisions of Section 6 of this Plan that is intended
to be and is specifically designated as an "incentive stock option"
within the meaning of Section 422 of the Code.
(j) "Non-Qualified Stock Option" means any Stock Option
granted pursuant to the provisions of Section 6 of this Plan that is
not an Incentive Stock Option.
(k) "Participant" means an employee or director of the
Company or a Subsidiary who is granted a Stock Option under this
Plan. Notwithstanding the foregoing, for the purposes of the
granting of any Incentive Stock Option under this Plan, the term
"Participant" shall include only employees of the Company or a
Subsidiary.
(l) "Plan" means the Columbia Financial of Kentucky, Inc.,
1999 Stock Option and Incentive Plan, as set forth herein and as it
may be hereafter amended from time to time.
(m) "Stock Option" means an award to purchase Common Shares
granted pursuant to the provisions of Section 6 of this Plan.
(n) "Subsidiary" means any corporation or entity in which the
Company directly or indirectly controls 50% or more of the total
voting power of all classes of its stock having voting power and
includes, without limitation, Columbia Federal Savings Bank.
(o) "Terminated for Cause" means any removal of a director or
discharge of an employee for the personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful
violation of a material provision of any law, rule or regulation
(other than traffic violations or similar offenses) or a material
violation of a final cease-and-desist order or for any other action
of a director or employee which results in a substantial financial
loss to the Company or a Subsidiary.
3. Administration.
(a) This Plan shall be administered by the Committee to be
comprised of not fewer than three of the members of the Board. The
members of the Committee shall be appointed from time to time by the
Board. Members of the Committee shall serve at the pleasure of the
Board, and the Board may from time to time remove members from, or
add members to, the Committee. A majority of the members of the
Committee shall constitute a quorum for the transaction of business.
An action approved in writing by all of the members of the Committee
then serving shall be fully as effective as if the action had been
taken by unanimous vote at a meeting duly called and held.
(b) The Committee is authorized to construe and interpret
this Plan and to make all other determinations necessary or advisable
for the administration of this Plan. The Committee may designate
persons other than members of the Committee to carry out its
responsibilities under such conditions and limitations as it may
prescribe. Any determination, decision or action of the Committee in
connection with the construction, interpretation, administration or
application of this Plan shall be final, conclusive and binding upon
all persons participating in this Plan and any person validly
claiming under or through persons participating in this Plan. The
Company shall effect the granting of Stock Options under this Plan,
in accordance with the determinations made by the Committee, by
execution of instruments in writing in such form as approved by the
Committee.
4. Duration of, and Common Shares Subject to, this Plan.
(a) Term. This Plan shall terminate on the date which is
ten (10) years from the effective date of the Plan, except with
respect to Stock Options then outstanding. Notwithstanding the
foregoing, no Incentive Stock Option may be granted under this Plan
after the date which is ten (10) years from the date on which this
Plan is adopted by the Board or the date on which this Plan is
approved by the shareholders of the Company, whichever is earlier.
(b) Common Shares Subject to Plan. The maximum number of
Common Shares that may be issued pursuant to Stock Options granted
under this Plan, subject to adjustment as provided in Section 9 of
this Plan, shall be 266,095 Common Shares. For the purpose of
computing the total number of Common Shares available for Stock
Options under this Plan, there shall be counted against the foregoing
limitations the number of Common Shares subject to issuance upon
exercise of Stock Options as of the dates on which such Stock Options
are granted. If any Stock Options are forfeited, terminated or
exchanged for other Stock Options, or expire unexercised, the Common
Shares which were theretofore subject to such Stock Options shall
again be available for Stock Options under this Plan to the extent of
such forfeiture, termination or expiration of such Stock Options.
Common Shares that may be issued under this Plan may be either
authorized and unissued shares or issued shares which have been
reacquired by the Company. No fractional shares shall be issued
under this Plan.
5. Eligibility and Grants. Persons eligible for Stock Options
under this Plan shall consist of directors and managerial and other key
employees of the Company or a Subsidiary who hold positions with
significant responsibilities or whose performance or potential
contribution, in the judgment of the Committee, will benefit the future
success of the Company or a Subsidiary. In selecting the directors and
employees to whom Stock Options will be awarded and the number of shares
subject to such Stock Options, the Committee shall consider the position,
duties and responsibilities of the eligible directors and employees, the
value of their services to the Company and the Subsidiaries and any other
factors the Committee may deem relevant.
6. Stock Options. Stock Options granted under this Plan may be in
the form of Incentive Stock Options or Non-Qualified Stock Options, and
such Stock Options shall be subject to the following terms and conditions
and in such form as the Committee may from time to time approve and shall
contain such additional terms and conditions as the Committee shall deem
desirable, not inconsistent with the express provisions of the Plan:
(a) Grant. Stock Options may be granted under this Plan on
terms and conditions not inconsistent with the provisions of this
Plan. Subject to adjustment as provided in Section 9 of this Plan,
the maximum number of Common Shares that may be issued to any
individual during the term of this Plan pursuant to Stock Options
granted under this Plan shall be 25% of the number of Common Shares
that may be issued pursuant to this Plan.
(b) Stock Option Price. The per share option exercise price
of a Stock Option shall be determined by the Committee at the time of
grant; provided, however, that in no event shall the exercise price
of a Stock Option be less than 100% of the Fair Market Value of the
Common Shares on the date of the grant of such Stock Option.
Notwithstanding the foregoing, in the case of a Participant who owns
Common Shares representing more than 10% of the outstanding Common
Shares at the time an Incentive Stock Option is granted, the option
exercise price shall in no event be less than 110% of the Fair Market
Value of the Common Shares at the time such Incentive Stock Option is
granted.
(c) Stock Option Terms. Subject to the right of the Company
to provide for earlier termination in the event of any merger,
acquisition or consolidation involving the Company, the term of each
Stock Option shall be fixed by the Committee; provided, however, that
the term of Incentive Stock Options will not exceed ten years after
the date the Incentive Stock Option is granted; provided further,
however, that in the case of a Participant who owns a number of
Common Shares representing more than 10% of the Common Shares
outstanding at the time the Incentive Stock Option is granted, the
term of the Incentive Stock Option shall not exceed five years.
(d) Exercisability. Except as set forth in Section 6(f) and
Section 7 of this Plan or as designated by the Committee at the time
of grant, Stock Options awarded under this Plan shall be immediately
exercisable in full.
(e) Method of Exercise. A Stock Option may be exercised, in
whole or in part, by giving written notice of exercise to the Company
specifying the number of Common Shares to be purchased. Such notice
shall be accompanied by payment in full of the purchase price in cash
or, if acceptable to the Committee in its sole discretion, in Common
Shares already owned by the Participant, or by surrendering
outstanding Stock Options. The Committee may also permit
Participants, either on a selective or aggregate basis,
simultaneously to exercise Stock Options and sell Common Shares
thereby acquired, pursuant to a brokerage or similar arrangement,
approved in advance by the Committee, and use the proceeds from such
sale as payment of the purchase price of such shares. In such event,
the Committee may permit the exercise price to be paid as soon as
practicable after exercise.
(f) Special Rule for Incentive Stock Options. With respect
to Incentive Stock Options granted under this Plan, to the extent the
aggregate Fair Market Value (determined as of the date the Incentive
Stock Option is granted) of the number of shares with respect to
which Incentive Stock Options are exercisable under all plans of the
Company or a Subsidiary for the first time by a Participant during
any calendar year exceeds $100,000, or such other limit as may be
required by the Code, such Stock Options shall be Non-Qualified Stock
Options to the extent of such excess.
7. Termination of Employment or Directorship.
(a) Except in the event of the death or disability of a
Participant, upon the resignation, removal or retirement from the
board of directors of any Participant who is a director of the
Company or a Subsidiary or upon the termination of Employment of a
Participant who is not a director of the Company or a Subsidiary, any
Stock Option which has not yet become exercisable shall thereupon
terminate and be of no further force or effect, and, unless the
Committee shall specifically state otherwise at the time a Stock
Option is granted, any Stock Option which has become exercisable
shall terminate if it is not exercised within three months of such
resignation, removal, retirement or termination of Employment.
(b) Unless the Committee shall specifically state otherwise
at the time a Stock Option is granted, all Stock Options granted
under this Plan shall become exercisable in full on the date of
termination of a Participant's employment or directorship with the
Company or a Subsidiary because of his death or disability, and,
subject to extension by the Committee, all Stock Options shall
terminate if not exercised within 12 months of the Participant's
death or disability.
(c) Unless the Committee shall specifically state otherwise
at the time a Stock Option is granted, in the event the Employment or
the directorship of a Participant is Terminated for Cause, any Stock
Option that has not been exercised shall thereupon terminate and be
of no further force or effect.
8. Non-transferability of Stock Options. No Stock Option under
this Plan, and no rights or interests therein, shall be assignable or
transferable by a Participant except by will or the laws of descent and
distribution. During the lifetime of a Participant, Stock Options are
exercisable only by, and payments in settlement of Stock Options will be
payable only to, the Participant or his or her legal representative.
9. Adjustments Upon Changes in Capitalization.
(a) The existence of this Plan and the Stock Options granted
hereunder shall not affect or restrict in any way the right or power
of the Board or the shareholders of the Company to make or authorize
the following: any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or its business; any
merger, acquisition or consolidation of the Company; any issuance of
bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Company's capital stock or the rights thereof; the
dissolution or liquidation of the Company or any sale or transfer of
all or any part of its assets or business; or any other corporate act
or proceeding, including any merger or acquisition which would result
in the exchange of cash, stock of another company or options to
purchase the stock of another company for any Stock Option
outstanding at the time of such corporate transaction or which would
involve the termination of all Stock Options outstanding at the time
of such corporate transaction.
(b) In the event of any change in capitalization affecting
the Common Shares of the Company, such as a stock dividend, stock
split, recapitalization, merger, consolidation, spin-off, split-up,
combination or exchange of shares or other form of reorganization, or
any other change affecting the Common Shares, including a
distribution (other than normal cash dividends) of company assets to
shareholders, such proportionate adjustments, if any, as the Board in
its discretion may deem appropriate to reflect such change shall be
made with respect to the aggregate number of Common Shares for which
Stock Options in respect thereof may be granted under this Plan, the
maximum number of Common Shares which may be sold or awarded to any
Participant, the number of Common Shares covered by each outstanding
Stock Option, and the exercise price per share in respect of
outstanding Stock Options.
10. Amendment and Termination of this Plan. Without further
approval of the shareholders, the Board may at any time terminate this
Plan, or may amend it from time to time in such respects as the Board may
deem advisable, except that the Board may not, without approval of the
shareholders, make any amendment which would (a) increase the aggregate
number of Common Shares that may be issued under this Plan (except for
adjustments pursuant to Section 9 of this Plan), (b) materially modify the
requirements as to eligibility for participation in this Plan, or (c)
materially increase the benefits accruing to Participants under this Plan.
The above notwithstanding, the Board may amend this Plan to take into
account changes in applicable securities, federal income tax and other
applicable laws.
11. Modification of Options. The Board may authorize the Committee
to direct the execution of an instrument providing for the modification of
any outstanding Stock Option which the Board believes to be in the best
interests of the Company; provided, however, that no such modification,
extension or renewal shall confer on the holder of such Stock Option any
right or benefit which could not be conferred on him by the grant of a new
Stock Option at such time and shall not materially decrease the
Participant's benefits under the Stock Option without the consent of the
holder of the Stock Option, except as otherwise permitted under this Plan.
12. Miscellaneous.
(a) Tax Withholding. The Company shall have the right to
deduct from any settlement, including the delivery or vesting of
Common Shares, made under this Plan any federal, state or local taxes
of any kind required by law to be withheld with respect to such
payments or to take such other action as may be necessary in the
opinion of the Company to satisfy all obligations for the payment of
such taxes. If Common Shares are used to satisfy tax withholding,
such shares shall be valued based on the Fair Market Value when the
tax withholding is required to be made.
(b) No Right to Employment. Neither the adoption of this
Plan nor the granting of any Stock Option shall confer upon any
employee of the Company or a Subsidiary any right to continued
Employment with the Company or a Subsidiary, as the case may be, nor
shall it interfere in any way with the right of the Company or a
Subsidiary to terminate the Employment of any of its employees at any
time, with or without cause.
(c) Annulment of Stock Options. The grant of any Stock
Option payable in Common Shares is provisional until the Participant
becomes entitled to the certificate in settlement thereof. In the
event the Employment or the directorship of a Participant is
Terminated for Cause, any Stock Option which is provisional shall be
annulled as of the date of such termination.
(d) Other Company Benefit and Compensation Programs.
Payments and other benefits received by a Participant under a Stock
Option made pursuant to this Plan shall not be deemed a part of a
Participant's regular, recurring compensation for purposes of the
termination, indemnity or severance pay law of any country and shall
not be included in, nor have any effect on, the determination of
benefits under any other employee benefit plan or similar arrangement
provided by the Company or a Subsidiary unless expressly so provided
by such other plan or arrangement, or except where the Committee
expressly determines that a Stock Option or portion of a Stock Option
should be included to accurately reflect competitive compensation
practices or to recognize that a Stock Option has been made in lieu
of a portion of competitive annual cash compensation. Stock Options
under this Plan may be made in combination with or in tandem with, or
as alternatives to, grants, stock options or payments under any other
plans of the Company or a Subsidiary. This Plan notwithstanding, the
Company or any Subsidiary may adopt such other compensation programs
and additional compensation arrangements as it deems necessary to
attract, retain and reward directors and employees for their service
with the Company and its Subsidiaries.
(e) Securities Law Restrictions. No Common Shares shall be
issued under this Plan unless counsel for the Company shall be
satisfied that such issuance will be in compliance with applicable
federal and state securities laws. Certificates for Common Shares
delivered under this Plan may be subject to such stop-transfer orders
and other restrictions as the Committee may deem advisable under the
rules, regulations and other requirements of the Securities and
Exchange Commission, any stock exchange upon which the Common Shares
are then listed, and any applicable federal or state securities law.
The Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
(f) Stock Option Agreement. Each Participant receiving a
Stock Option under this Plan shall enter into an agreement with the
Company in a form specified by the Committee agreeing to the terms
and conditions of the Stock Option and such related matters as the
Committee shall, in its sole discretion, determine.
(g) Cost of Plan. The costs and expenses of administering
this Plan shall be borne by the Company.
(h) Governing Law. This Plan and all actions taken hereunder
shall be governed by and construed in accordance with the laws of the
State of Ohio, except to the extent that federal law shall be deemed
applicable.
(i) Effective Date. This Plan shall be effective upon the
later of adoption by the Board and approval by the Company's
shareholders. This Plan shall be submitted to the shareholders of
the Company for approval at an annual or special meeting of
shareholders to be held no later than twelve months after the date of
adoption by the Board.
EXHIBIT 5
(513) 723-4000
August 18, 1999
Board of Directors
Columbia Financial of Kentucky, Inc.
2497 Dixie Highway
Ft. Mitchell, Kentucky 41017
Gentlemen:
We have acted as special counsel for Columbia Financial of Kentucky,
Inc., an Ohio Corporation (the "Company"), in connection with the proposed
issuance and sale of the common shares of the Company, no par value (the
"Common Shares"), upon the exercise of options granted to purchase such
Common Shares pursuant to the Columbia Financial of Kentucky, Inc., 1999
Stock Option and Incentive Plan as described in the Registration Statement
on Form S-8 to be filed with the Securities and Exchange Commission on or
about August 20, 1999 (the "Registration Statement"), for the purpose of
registering 266,095 Common Shares reserved for issuance under the Plan
pursuant to the provisions of the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
In connection with this opinion, we have examined an original or copy
of, and have relied upon the accuracy of, without independent verification
or investigation, (a) the Registration Statement; (b) the Company's
Articles of Incorporation, as certified by the Secretary of State of Ohio
on August 17, 1999; (c) the Code of Regulations of the Company, as
certified by the President and the Treasurer of the Company on August 18,
1999; (d) the Certificate of Inspector of Election for the meeting of the
shareholders of the Company held on July 15, 1999; (e) the minutes of the
Board of Directors of the Company dated May 13, 1999; (f) the Action by the
Directors and the Stock Option Committee of the Company dated July 15,
1999; (g) a Certificate of Good Standing with respect to the Company issued
by the Secretary of State of Ohio dated August 17, 1999; (h) a Certificate
of the President and Treasurer of the Company dated August 18, 1999; and
(i) such other representations of the Company and its officers as we have
deemed relevant.
In our examinations, we have assumed the genuineness of all
signatures, the conformity to original documents of all documents submitted
to us as copies and the authenticity of such originals of such latter
documents. We have also assumed the due preparation of share certificates
and compliance with applicable federal and state securities laws.
Based solely upon and subject to the foregoing and the further
qualifications and limitations set forth below, as of the date hereof, we
are of the opinion that after the Common Shares shall have been issued by
the Company upon the exercise of the options and payment therefor in full
in the manner provided in the Plans and in the Registration Statement (when
it becomes effective), such Common Shares issued upon the exercise of such
options will be validly issued, fully paid and non-assessable.
This opinion is limited to the federal laws of the United States and
to the laws of the State of Ohio having effect as of the date hereof. This
opinion is furnished by us solely for the benefit of the Company in
connection with the offering of the Common Shares and the filing of the
Registration Statement and any amendments thereto. This opinion may not be
relied upon by any other person or assigned, quoted or otherwise used
without our specific written consent.
We consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement and to the reference to us in the
Registration Statement.
Very truly yours,
VORYS, SATER, SEYMOUR AND PEASE LLP
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Columbia Financial of Kentucky, Inc., on Form S-8 of our
report dated November 10, 1998, on the consolidated statements of financial
condition as of September 30, 1998 and 1997, and the related consolidated
statements of income, stockholders' equity and cash flows for each of the
three years ended September 30, 1998, 1997, and 1996.
VonLehman & Company Inc.
Ft. Mitchell, Kentucky
August 17, 1999
