- -As filed with the Securities and
Exchange Commission on April 1, 1999 Registration No. 333-_________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
TOWER FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
INDIANA 35-2051170
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
116 EAST BERRY STREET 46802
FORT WAYNE, INDIANA (Zip Code)
(Address of Principal Executive Offices)
TOWER FINANCIAL CORPORATION
1998 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
DONALD F. SCHENKEL
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
TOWER FINANCIAL CORPORATION
116 EAST BERRY STREET
FORT WAYNE, INDIANA 46802
(Name and address of agent for service)
(219) 427-7000
(Telephone number,including area code, of agent for service)
COPY TO:
JOHN P. HATTER, JR.
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE (2) PRICE (2)
<S> <C> <C> <C> <C>
Common Stock, 310,000 $9.25 (3) $2,867,500 (3) $797.17 (3)
without par value
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also registers additional shares of
Common Stock as may be offered or issued to prevent dilution resulting from
stock splits, stock dividends and similar transactions.
(2) It is impracticable to state the maximum offering price. Shares offered
pursuant to stock options granted under the 1998 Stock Option and Incentive
Plan are to be offered at not less than the fair market value of one share
of common stock, without par value, of Tower Financial Corporation ("Common
Stock") on the date the options are granted.
(3) Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) and (h) under the Securities Act
using the average of the bid and asked prices of the Common Stock as
reported by the OTC Bulletin Board on March 30, 1999, which was $9.25 per
share.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The Section 10(a) prospectus for the Tower Financial Corporation 1998
Stock Option and Incentive Plan is not required to be filed with the Securities
and Exchange Commission as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-K for the year ended December 31,
1998, and the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), including any amendments or reports
filed for the purpose of updating such description, are incorporated herein by
reference. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year for which audited financial
statements are contained in the annual report described above are incorporated
herein by reference. All documents filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof and prior
to the termination of the offering of the securities offered hereby shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents with the Commission. The Company will
promptly provide without charge to each person to whom a prospectus is
delivered, a copy of any or all information that has been incorporated herein
by reference (not including exhibits to the information that is incorporated by
reference unless such exhibits are specifically incorporated by reference into
such information), upon the written or oral request of such person directed to
the Secretary of the Company at its principal offices, 116 East Berry Street,
Fort Wayne, Indiana 46802 (219) 427-7000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Indiana Business Corporation Law (the "IBCL") provides that a
corporation, unless limited by its Articles of Incorporation, is required to
indemnify its directors and officers against reasonable expenses incurred in
the successful defense of any proceeding to which the director or officer was a
party because of serving as a director or officer of the corporation.
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 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 in the best interests of the
Company (or at least not opposed to its best interests) and, in addition, with
respect to any criminal claim, is determined to have had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to believe
that his or her conduct was unlawful.
The Federal Deposit Insurance Corporation's regulations impose
limitations on indemnification payments which could restrict, in certain
circumstances, payment by the Company or its subsidiaries to their respective
directors or officers otherwise permitted or required under the IBCL or the
Company's Restated Articles of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the Index to
Exhibits.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(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 (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed 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
the 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.
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 (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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such 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 Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, 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 Fort Wayne, State of Indiana, on March 31,
1999.
TOWER FINANCIAL CORPORATION
By: /S/ DONALD F. SCHENKEL
Donald F. Schenkel
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities and on the respective dates indicated opposite their names. Each
person whose signature appears below hereby authorizes each of Donald F.
Schenkel and Kevin J. Himmelhaver, each with full power of substitution, to
execute in the name and on behalf of such person any post-effective amendment
to this Registration Statement and to file the same, with exhibits thereto, and
other documents in connection therewith, making such changes in this
Registration Statement as the registrant deems appropriate, and appoints each
of Donald F. Schenkel and Kevin J. Himmelhaver, each with full power of
substitution, attorney-in-fact to sign any amendment and any post-effective
amendment to this Registration Statement and to file the same, with exhibits
thereto, and other documents in connection therewith.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ DONALD F. SCHENKEL Chairman of the Board, President, Chief March 31, 1999
Donald F. Schenkel Executive Officer and Director (Principal
Executive Officer)
/S/ KEVIN J. HIMMELHAVER Chief Financial Officer (Principal March 31, 1999
Kevin J. Himmelhaver Financial and Accounting Officer)
/S/ KEITH E. BUSSE Director March 31, 1999
Keith E. Busse
/S/ PETER T. ESHELMAN Director March 31, 1999
Peter T. Eshelman
/S/ MICHAEL S. GOULOFF Director March 31, 1999
Michael S. Gouloff
/S/ CRAIG S. HARTMAN Director March 31, 1999
Craig S. Hartman
/S/ MICHAEL MIRRO, M.D. Director March 31, 1999
Michael Mirro, M.D.
/S/ DEBRA A. NIEZER Director March 31, 1999
Debra A. Niezer
/S/ WILLIAM G. NIEZER Director March 31, 1999
William G. Niezer Director
Maurice D. O'Daniel Director
Leonard Rifkin
/S/ JOSEPH D. RUFFOLO Director March 31, 1999
Joseph D. Ruffolo
/S/ LARRY L. SMITH Director March 31, 1999
Larry L. Smith
/S/ J. RICHARD TOMKINSON Director March 31, 1999
J. Richard Tomkinson
/S/ IRENE A. WALTERS Director March 31, 1999
Irene A. Walters
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. DESCRIPTION OF EXHIBIT
<S> <C>
4.1 Restated Articles of Incorporation of the Registrant. (The copy of this Exhibit
filed as Exhibit 3.1 to the Company's Registration Statement on Form SB-2
(Registration No. 333-67235) is incorporated herein by reference.)
4.2 By-Laws of the Registrant. (The copy of this Exhibit filed as Exhibit 3.2 to the
Company's Registration Statement on Form SB-2 (Registration No. 333-67235) is
incorporated herein by reference.)
4.3 Tower Financial Corporation 1998 Stock Option and Incentive Plan. (The copy of
this Exhibit filed as Exhibit 10.3 to the Company's Registration Statement on
Form SB-2 (Registration No. 333-67235) is incorporated herein by reference.)
5 Opinion of Baker & Daniels regarding legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Baker & Daniels (included in the Baker & Daniels Opinion filed as
Exhibit 5).
24 Powers of Attorney (included on the Signature Page of the Registration
Statement).
</TABLE>
EXHIBIT 5
BAKER & DANIELS
300 NORTH MERIDIAN STREET
SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
March 31, 1999
Tower Financial Corporation
116 East Berry Street
Fort Wayne, Indiana 46802
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Tower Financial Corporation, an Indiana
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of the Company's
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933 (the "Act"), registering the offer and sale of up to
310,000 shares of the Company's common stock, without par value (the "Shares"),
pursuant to the Company's 1998 Stock Option and Incentive Plan (the "Plan").
In so acting, we have examined and relied upon the originals, or copies
certified or otherwise identified to our satisfaction, of such records,
documents and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the Shares have been duly
authorized and, when the Registration Statement shall have become effective and
the Shares have been issued in accordance with the Plan, the Shares will be
validly issued, fully paid and nonassessable.
Our opinion expressed above is limited to the federal law of the United
States and the law of the State of Indiana.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby concede that
we are within the category of persons whose consent is required under Section 7
of the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ BAKER & DANIELS
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Tower Financial Corporation on Form S-8 of our report dated March
29, 1999 on our audit of the financial statements of Tower Financial
Corporation (the Company) as of December 31, 1998 and for the period from July
8, 1998 (date of inception) through December 31, 1998, which report is included
in the Company's Annual Report on Form 10-KSB.
/s/ PricewaterhouseCoopers LLP
Fort Wayne, Indiana
April 1, 1999
