As filed with the Securities and Exchange Commission on December 28, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT ON
FORM S-8
UNDER THE SECURITIES ACT OF 1933
FIRST NILES FINANCIAL, INC.
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(Exact name of registrant as specified in its charter)
Delaware 34-1870418
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
55 North Main Street, Niles, Ohio 44446
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(Address of principal executive offices) (Zip Code)
FIRST NILES FINANCIAL, INC.
1999 STOCK OPTION AND INCENTIVE PLAN
AND
1999 RECOGNITION AND RETENTION PLAN
(Full title of the plan)
James S. Fleischer, P.C.
Michael S. Sadow, P.C.
Song A. Pak, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
7th Floor - East Tower
1100 New York Avenue, NW
Washington, DC 20005
(Name and address of agent for service)
(202) 414-6100
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered(1) per share offering price registration fee
Common Stock, par value
$0.01 per share 245,615 shares (2) $3,084,434(2) $815(2)
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<FN>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of
certain events specified in the plans, may become subject to the 1999
Stock Option and Incentive Plan and the 1999 Recognition and Retention
Plan.
(2) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee. Of the 245,615 shares being
registered hereby: (i) 157,896 shares are subject to options with an
exercise price of $12.53 per share ($1,978,436.80 in the aggregate);
(ii) 63,158 shares granted pursuant to the 1999 Recognition and
Retention Plan at a price equal to $12.53 as of the date of the grant;
and (iii) 24,561 shares which have not been awarded to date are being
registered based upon the average of the high and low prices per share
of the common stock on The Nasdaq Stock Market of $12.81 per share on
December 27, 1999.
</FN>
</TABLE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Form S-8 will be sent or given to participants in First Niles Financial, Inc.'s
1999 Stock Option and Incentive Plan (the "SOP") and 1999 Recognition and
Retention Plan ( the "RRP") as specified by Rule 428(b)(1) promulgated by the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "Securities Act").
Such documents are not being filed with the SEC, but constitute (along
with the documents incorporated by reference into the registration statement
pursuant to Item 3 of Part II of this registration statement), prospectuses that
meet the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously or concurrently filed by First Niles
Financial, Inc. (the "Company" or the "Registrant") with the SEC are hereby
incorporated by reference in this registration statement and the prospectuses to
which this registration statement relates:
1. The annual report on Form 10-KSB of the Company for the fiscal year
ended December 31, 1998 (File No. 0-24849) filed pursuant to Rule
13a-1 of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act").
2. The quarterly reports on Form 10-KSB of the Company for the quarterly
periods ended March 31, 1999, June 30, 1999 and September 30, 1999;
and Current Reports on Form 8-K filed on May 24, 1999 and November 15,
1999.
3. The description of the Company common stock contained in the Company's
Registration Statement on Form 8-A dated August 28, 1998 (and any
amendments or reports filed for the purpose of updating the
description).
All documents subsequently filed by the Company with the SEC pursuant
to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference into this registration statement and the
prospectuses to be a part hereof and thereof from the date of the filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this registration statement and the prospectuses
to the extent that a statement contained herein or therein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein or therein 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 and the
prospectuses.
The Company shall furnish without charge to each person to whom the
prospectuses are delivered, on the written or oral request of such person, a
copy of any or all of the documents incorporated by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference to the information that is incorporated). Requests should be
directed to: George J. Swift, Secretary, First Niles Financial, Inc., 55 North
Main Street, Niles, Ohio 44446, telephone number (330) 652-2539.
All information appearing in this registration statement and the
prospectuses is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Tenth Article of the Company's Certificate of Incorporation
provides for indemnification of its directors and officers against any and all
liabilities, judgments, fines and reasonable settlements, costs, expenses and
attorneys' fees incurred in any actual, threatened or potential proceeding,
except to the extent that such indemnification is limited by Delaware law and
such law cannot be varied by contract or bylaw. The Tenth Article also provides
for the authority to purchase insurance with respect thereto.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified against
expenses actually and reasonably incurred in defense of a proceeding by or on
behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a proceeding
by or in the right of such other corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good faith; (ii) was acting in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation or other corporation or enterprise, as appropriate; (iii) with
respect to a criminal proceeding, has no reasonable cause to believe his conduct
was unlawful; and (iv) was not adjudged to be liable to the corporation or other
corporation or enterprise (unless the court where the proceeding was brought
determines that such person is fairly and reasonably entitled to indemnity).
Unless ordered by a court, indemnification of directors and officers
may be made only following a determination that such indemnification is
permissible because the person being indemnified has met the requisite standard
of conduct. Such determination may be made (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iv) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon
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the receipt of an undertaking by the director or officer to repay such amount if
it is ultimately determined that he is not entitled to be indemnified by the
corporation against such expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibits Index to this Registration Statement.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
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 SEC 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 clauses (i) and (ii) do not apply if
the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports
filed with or furnished to the Securities and Exchange
Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act of 1934 that are incorporated by
reference in the 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 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) The undersigned 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 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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
SEC such indemnification is against public policy as expressed in the
Securities Act of 1933 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 of expenses
incurred or paid by a director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all 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 Niles, State of Ohio, on December 28, 1999.
FIRST NILES FINANCIAL, INC.
By: /s/ William L. Stephens
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William L. Stephens, Chairman of the Board,
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William L. Stephens, his true and lawful
attorney-in-fact and agent, with full power of substitution and re-substitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
By: /s/ William L. Stephens By: /s/ George J. Swift
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William L. Stephens, Chairman of the George J. Swift, Vice President
Board, President and Chief Executive and Secretary
Officer Principal Financial and Operating
(Principal Executive Officer) Officer)
Date: December 28, 1999 Date: December 28, 1999
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By: /s/ P. James Kramer By: /s/ Horace L. McLean
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P. James Kramer, Director Horace L. McLean, Director
Date: December 28, 1999 Date: December 28, 1999
By: /s/ Ralph A. Zuzolo By: /s/ Thomas G. Maley
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Ralph A. Zuzolo, Director Thomas G. Maley, Controller
(Principal Accounting Officer)
Date: December 28, 1999 Date: December 28, 1999
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EXHIBITS INDEX
Exhibit
Number Description of Exhibits
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4.1 Certificate of Incorporation of First Niles Financial, Inc., filed on
July 10, 1998 as Exhibit 3.1 to Registrant's Registration Statement on
Form SB-2 (File No. 333-58883), is incorporated herein by reference.
4.2 Bylaws of First Niles Financial, Inc., filed on July 10, 1998 as
Exhibit 3.2 to Registrant's Registration Statement on Form SB-2 (File
No. 333- 58883), is incorporated herein by reference.
4.3 Form of Certificate of Common Stock, filed on July 10, 1998 as Exhibit
4 to Registrant's Registration Statement on Form SB-2 (File No. 333-
58883), is incorporated herein by reference.
5 Opinion of Silver, Freedman & Taff, L.L.P.
23.1 Consent of Anness, Gerlach & Williams.
23.2 Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit 5).
24 Power of Attorney (included in signature pages).
99.1 First Niles Financial, Inc. 1999 Stock Option and Incentive Plan filed
on November 12, 1999 as Appendix A to Registrant's Proxy Statement on
Schedule 14A (File No. 000-24849), is incorporated herein by reference.
99.2 First Niles Financial, Inc. 1999 Recognition and Retention Plan filed
on November 12, 1999 as Appendix B to Registrant's Proxy Statement on
Schedule 14A (File No. 000-24849), is incorporated herein by reference.
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EXHIBIT 5
Silver, Freedman & Taff, L.L.P.
1100 New York Ave., N.W.
Washington, D.C. 20005
(202) 414-6100
December 28, 1999
Board of Directors
First Niles Financial, Inc.
55 North Main Street
Niles, Ohio 44446
Members of the Board:
We have acted as counsel to First Niles Financial, Inc. (the
"Corporation"), in connection with the preparation and filing with the
Securities and Exchange Commission of a registration statement on Form S-8 under
the Securities Act of 1933, as amended (the "Registration Statement"), relating
to 175,440 shares of the Corporation's common stock, par value $.01 per share
(the "Common Stock"), to be offered pursuant to the First Niles Financial, Inc.
1999 Stock Option and Incentive Plan and 70,175 shares of the Corporation's
Common Stock to be offered pursuant to the First Niles Financial, Inc. 1999
Recognition and Retention Plan (the "Plans").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plans, the Corporation's
Certificate of Incorporation, Bylaws, resolutions of its Board of Directors and
such other documents and corporate records as we deem appropriate for the
purpose of giving this opinion.
Based upon the foregoing, it is our opinion that the shares of Common
Stock being so registered have been duly authorized. The shares of Common Stock
when and if issued, sold and paid for as contemplated by the Plans, legally
issued, fully paid and non-assessable shares of Common Stock of the Corporation.
We hereby consent to the inclusion of our opinion as Exhibit 5 to this
Registration Statement on Form S-8. In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
Silver, Freedman & Taff, L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this
registration statement on Form S-8 of First Niles Financial, Inc. (the
"Company") of our report, dated January 20, 1999, on the consolidated financial
statements of the Company, which report appears in the Company's Annual Report
on Form 10-KSB for the fiscal year ended December 31, 1998.
/s/ Anness Gerlach & Williams
Youngstown, Ohio
December 27, 1999
