FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
TOWER FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
INDIANA 35-2051170
(State of incorporation (I.R.S. Employer
or organization)
Identification No.)
116 EAST BERRY STREET
FORT WAYNE,INDIANA 46802
(Address of principal (Zip Code)
executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of each class Name of each exchange on which
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
NONE NONE
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates: 333-67235
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK
(Title of Class)
<PAGE>
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The authorized capital stock of Tower Financial Corporation (the
"Company") consists of 6,000,000 shares of common stock and 4,000,000
shares of preferred stock. Upon consummation of the Company's initial
public offering, and assuming no exercise of the underwriters' over-
allotment option, there will be 2,000,000 shares of common stock issued and
outstanding and no shares of preferred stock issued and outstanding. An
additional 240,000 shares of common stock will be issuable upon exercise of
outstanding options granted under the Company's 1998 Stock Option and
Incentive Plan. Immediately prior to the initial public offering, only one
share of common stock is outstanding.
COMMON STOCK
Each holder of common stock will be entitled to one vote per share of
record on all matters to be voted upon by the stockholders. Holders will
not have cumulative voting rights in connection with the election of
directors or any other matter. Subject to the preferential rights of the
holders of any preferred stock that may at the time be outstanding, each
share of common stock will entitle the holder thereof to an equal and
ratable right to receive dividends when, if and as declared from time to
time by the board of directors out of funds legally available therefor.
The Company does not anticipate paying cash dividends in the foreseeable
future.
In the event of the liquidation, dissolution or winding up of the
Company, the holders of common stock will be entitled to share ratably in
all assets remaining after payments to creditors and after satisfaction of
the liquidation preference, if any, of the holders of any preferred stock
that may at the time be outstanding. Holders of common stock will have no
preemptive or redemption rights and will not be subject to further calls or
assessments by the Company. All of the shares of common stock to be issued
and sold in the offering will be, immediately upon consummation of the
offering, validly issued, fully paid and nonassessable.
PREFERRED STOCK
The authorized preferred stock is available for issuance from time to
time at the discretion of the board of directors without shareholder
approval. The board of directors has the authority to prescribe for each
series of preferred stock it establishes the number of shares in that
series, the number of votes (if any) to which the shares in that series are
entitled, the consideration for the shares in that series, and the
designations, powers, preferences and other rights, qualifications,
limitations or restrictions of the shares in that series. Depending upon
the rights prescribed for a series of preferred stock, the issuance of
preferred stock could have an adverse effect on the voting power of the
holders of common stock and could adversely affect holders of common stock
by delaying or preventing a change in control of the Company, making
removal of the present management of the Company more difficult or imposing
restrictions upon the payment of dividends and other distributions to the
holders of common stock.
AUTHORIZED BUT UNISSUED SHARES
Indiana law does not require shareholder approval for any issuance of
authorized shares. Authorized but unissued shares may be used for a
variety of corporate purposes, including future public or private offerings
to raise additional capital or to facilitate corporate acquisitions. One
of the effects of the existence of authorized but unissued shares may be to
enable the board of directors to issue shares to persons friendly to
current management, which issuance could render more difficult or
discourage an attempt to obtain control of the Company by means of a
merger, tender offer, proxy contest or otherwise, and thereby protect the
continuity of the Company's management and possibly deprive the
shareholders of opportunities to sell their shares of common stock at
prices higher than prevailing market prices.
CERTAIN PROVISIONS OF RESTATED ARTICLES OF INCORPORATION AND BY-LAWS
Certain provisions of the Company's Restated Articles of Incorporation
and By-Laws may delay or make more difficult unsolicited acquisitions or
changes of control of the Company. Such provisions could have the effect
of discouraging third parties from making proposals involving an
unsolicited acquisition or change in control of the Company, although such
proposals, if made, might be considered desirable by a majority of the
Company's shareholders. Such provisions may also have the effect of making
it more difficult for third parties to cause the replacement of the current
management of the Company without the concurrence of the board of
directors. These provisions include:
<circle>the division of the board of directors into three classes
serving "staggered" terms of office of three years;
<circle>the availability of authorized but unissued shares of stock for
issuance from time to time at the discretion of the board of
directors;
<circle>provisions allowing the removal of directors only for cause and
only upon a 66-2/3% shareholder vote taken at a meeting called for
that purpose;
<circle>provisions which require the participation of 80% of the voting
power of the outstanding common stock in order for the shareholders to
demand the calling of a special meeting of shareholders; and
<circle>requirements for advance notice for raising business or making
nominations at shareholders' meetings.
The Company's By-Laws establish an advance notice procedure with regard
to business to be brought before an annual or special meeting of
shareholders of the Company and with regard to the nomination of candidates
for election as directors, other than by or at the direction of the board
of directors. Although the Company's By-Laws do not give the board of
directors any power to approve or disapprove shareholder nominations for
the election of directors or proposals for action, they may have the effect
of precluding a contest for the election of directors or the consideration
of shareholder proposals if the established procedures are not followed,
and of discouraging or deterring a third party from conducting a
solicitation of proxies to elect its own slate of directors or to approve
its proposal without regard to whether consideration of such nominees or
proposals might be harmful or beneficial to the Company and its
shareholders.
CERTAIN PROVISIONS OF INDIANA LAW
The Indiana Business Corporation Law (the "IBCL") applies to the Company
as an Indiana corporation. Under certain circumstances, the following
provisions of the IBCL may delay, prevent or make more difficult
unsolicited acquisition or changes of control of the Company. Such
provisions also may have the effect of preventing changes in the management
of the Company. It is possible that such provisions could make it more
difficult to accomplish transactions which shareholders may otherwise deem
to be in their best interests.
CONTROL SHARE ACQUISITIONS. Under Sections 23-1-42-1 to 23-1-42-11 of
the IBCL, an "acquiring person" who makes a "control share acquisition" in
an "issuing public corporation" may not exercise voting rights on any
"control shares" unless such voting rights are conferred by a majority vote
of the disinterested shareholders of the issuing corporation at a special
meeting of such shareholders held upon the request and at the expense of
the acquiring person. In the event that control shares acquired in a
control share acquisition are accorded full voting rights and the acquiring
person acquires control shares with a majority or more of all voting power,
all shareholders of the issuing corporation have dissenters' rights to
receive the fair value of their shares.
Under the IBCL, "control shares" means shares acquired by a person that,
when added to all other shares of the issuing public corporation owned by
that person or in respect to which that person may exercise or direct the
exercise of voting power, would otherwise entitle that person to exercise
voting power of the issuing public corporation in the election of directors
within any of the following ranges: (a) one-fifth or more but less than
one-third; (b) one-third or more but less than a majority; or (c) a
majority or more. "Control share acquisition" means, subject to certain
exceptions, the acquisition, directly or indirectly, by any person of
ownership of, or the power to direct the exercise of voting power with
respect to, issued and outstanding control shares. Shares acquired within
90 days or under a plan to make a control share acquisition are considered
to have been acquired in the same acquisition. "Issuing public
corporation" means a corporation which is organized in Indiana, has 100 or
more shareholders, its principal place of business, its principal office or
substantial assets within Indiana and either (a) more than 10% of its
shareholders resident in Indiana, (b) more than 10% of its shares owned by
Indiana residents or (c) 10,000 shareholders resident in Indiana. The
above provisions do not apply if, before a control share acquisition is
made, the corporation's articles of incorporation or by-laws (including a
board adopted by-law) provide that they do not apply. The Company's
Restated Articles of Incorporation and By-Laws do not exclude it from the
restrictions imposed by such provisions.
CERTAIN BUSINESS COMBINATIONS. Sections 23-1-43-1 to 23-1-43-23 of the
IBCL restrict the ability of a "resident domestic corporation" to engage in
any combinations with an "interested shareholder" for five years after the
interested shareholder's date of acquiring shares unless the combination or
the purchase of shares by the interested shareholder on the interested
shareholder's date of acquiring shares is approved by the board of
directors of the resident domestic corporation before that date. If the
combination was not previously approved, the interested shareholder may
effect a combination after the five-year period only if such shareholder
receives approval from a majority of the disinterested shares or the offer
meets certain fair price criteria. For purposes of the above provisions,
"resident domestic corporation" means an Indiana corporation that has 100
or more shareholders. "Interested shareholder" means any person, other
than the resident domestic corporation or its subsidiaries, who is (1) the
beneficial owner, directly or indirectly, of 10% or more of the voting
power of the outstanding voting shares of the resident domestic corporation
or (2) an affiliate or associate of the resident domestic corporation and
at any time within the five-year period immediately before the date in
question was the beneficial owner of 10% or more of the voting power of the
then outstanding shares of the resident domestic corporation. The above
provisions do not apply to corporations that so elect in an amendment to
their articles of incorporation approved by a majority of the disinterested
shares. Such an amendment, however, would not become effective until 18
months after its passage and would apply only to stock acquisitions
occurring after its effective date. The Company's Restated Articles of
Incorporation do not exclude it from the restrictions imposed by such
provisions.
DIRECTORS' DUTIES AND LIABILITY. Under Section 23-1-35-1 of the IBCL,
directors are required to discharge their duties: (a) in good faith; (b)
with the care an ordinarily prudent person in a like position would
exercise under similar circumstances; and (c) in a manner the directors
reasonably believe to be in the best interests of the Company. However,
the IBCL also provides that a director is not liable for any action taken
as a director, or any failure to act, unless the director has breached or
failed to perform the duties of the director's office and the action or
failure to act constitutes willful misconduct or recklessness. The
exoneration from liability under the IBCL does not affect the liability of
directors for violations of the federal securities laws.
Section 23-1-35-1 of the IBCL also provides that a board of directors,
in discharging its duties, may consider, in its discretion, both the long-
term and short-term best interests of the corporation, taking into account,
and weighing as the directors deem appropriate, the effects of an action on
the corporation's shareholders, employees, suppliers and customers and the
communities in which offices or other facilities of the corporation are
located and any other factors the directors consider pertinent. If a
determination is made with the approval of a majority of the disinterested
directors of the board, that determination is conclusively presumed to be
valid unless it can be demonstrated that the determination was not made in
good faith after reasonable investigation. Once the board has determined
that the proposed action is not in the best interests of the corporation,
it has no duty to remove any barriers to the success of the action,
including a rights plan. Section 23-1-35-1 specifically provides that
certain judicial decisions in Delaware and other jurisdictions, which might
be looked upon for guidance in interpreting Indiana law, including
decisions that propose a higher or different degree of scrutiny in response
to a proposed acquisition of the corporation, are inconsistent with the
proper application of that section.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Articles of Incorporation provide that, to the
extent not inconsistent with applicable law, the Company shall indemnify
each of its directors, officers, employees and agents against all liability
and reasonable expense that may be incurred by him or her in connection
with or resulting from any claim in which he or she may become involved by
reason of the fact that he or she is or was a director, officer, employee
or agent of the Company or by reason of any action taken or not taken by
him or her in any such capacity, if such person is wholly successful with
respect to the claim or, if not wholly successful, then if such person is
determined to have acted in good faith, in what he or she reasonably
believed to be the best interests of the Company (or at least not opposed
to its best interests) and, in addition, with respect to a criminal claim,
is determined to have had reasonable cause to believe that his or her
conduct was lawful or had no reasonable cause to believe that his or her
conduct was unlawful.
FDIC regulations impose limitations on indemnification payments which
could restrict, in certain circumstances, payments by the Company or its
wholly-owned subsidiary, Tower Bank & Trust Company, to their respective
directors or officers otherwise permitted or required under the IBCL or the
Company's Restated Articles of Incorporation.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers and controlling persons of the Company pursuant to the
provisions discussed above or otherwise, the Company has been advised that,
in the opinion of the SEC, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is State Street
Bank & Trust Company, Boston, Massachusetts.
ITEM 2. EXHIBITS.
Pursuant to the Instruction as to Exhibits to Form 8-A, the following
exhibits are being filed herewith:
(1) Restated Articles of Incorporation of the Registrant
(incorporated herein by reference from Exhibit 3.1 to the
Registrant's Registration Statement on Form SB-2 (Registration
No. 333-67235)).
(2) By-Laws of the Registrant, as amended November 11, 1998
(incorporated herein by reference from Exhibit 3.2 to the
Registrant's Registration Statement on Form SB-2 (Registration
No. 333-67235)).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereto duly authorized.
Dated: January 22, 1999
TOWER FINANCIAL CORPORATION
By: /S/ DONALD F. SCHENKEL
Donald F. Schenkel
President and Chief Executive Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
(1) Restated Articles of Incorporation of the Registrant
(incorporated herein by reference from Exhibit 3.1 to the
Registrant's Registration Statement on Form SB-2 (Registration
No. 333-67235)).
(2) By-Laws of the Registrant, as amended November 11, 1998
(incorporated herein by reference from Exhibit 3.2 to the
Registrant's Registration Statement on Form SB-2 (Registration
No. 333-67235)).
</TABLE>
