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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SECOND BANCORP, INCORPORATED
(Exact name of Registrant as specified in its charter)
OHIO 34-1547453
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
108 MAIN AVENUE
WARREN, OHIO 44482-1311
(Address of principal executive offices)
1997 RESTRICTED STOCK PLAN
(Full title of the plan)
JOHN L. POGUE, ESQ.
MICHAEL G. MARANDO, ESQ.
HOPPE, FREY, HEWITT & MILLIGAN
500 SECOND NATIONAL TOWER
WARREN, OHIO 44482
330-392-1541
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE
TITLE OF SECURITIES TO BE PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
COMMON STOCK 50,000(2) $23.25 $1,162,500 $352.27
NO PAR VALUE
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(1) Based on the sales price of the Company's shares on NASDAQ on July 29, 1997,
pursuant to Rules 457(c) and (h) under the Securities Act of 1933.
(2) Adjusted for two-for-one stock split effective May 1, 1997.
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant incorporates by reference into this
registration statement the documents listed below and, in addition, all
documents subsequently filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934 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 be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the date of filing of such documents:
(a) The Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1996.
(b) The Corporation's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997;
and
(c) The description of the Common Stock
contained in the Corporation's registration
statement on Form S-4 (Registration No.
33-09239) under the caption "Description of
Holding Shares" as filed on October 2, 1986,
with the Commission pursuant to the 1933
Act, including all amendments and reports
filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Capital Stock to be issued
pursuant to the Plan has been passed upon by the firm of Hoppe, Frey, Hewitt &
Milligan, counsel for the Corporation. John L. Pogue, a partner in the firm,
serves as a Director of the Corporation.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of the Corporation and the
Regulations of the Corporation provide in substance that the Corporation shall
indemnify, to the full extent permitted by the laws of the State of Ohio, any
director, officer, employee or agent of the Corporation for any costs or
expenses incurred by him in his capacity, or arising out of his status, as a
director, officer, employee or agent of the Corporation. Such indemnification
shall not be deemed exclusive of any other rights to which any person
indemnified may be entitled, as a matter of law or otherwise, and shall inure to
the benefit of the heirs, executors and administrators of any such person.
Section 1701.13(E) of the General Corporation Law of the State
of Ohio (which is applicable to the Corporation) permits a corporation to
indemnify its officers and directors and to pay their expenses subject to
certain limitations and exceptions.
The Corporation has purchased a liability insurance policy
which insures directors and officers of the Corporation against certain
liabilities which might be incurred by them in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS
4.1 1997 Restricted Stock Plan
5.1 Opinion of Hoppe, Frey, Hewitt & Milligan as to
legality of shares being registered.
23.1 Consent of Hoppe, Frey, Hewitt & Milligan (included
in Exhibit 5.1)
23.2 Consent of Ernst & Young
24.1 Power of Attorney
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) to 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 percent
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) 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 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 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 offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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(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 any provision or arrangement
existing whereby the registrant may indemnify a director, officer or controlling
person of the registrant against liabilities under Securities Act of 1933, 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
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 an officer, director 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 of 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
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SECOND BANCORP, INC.
Pursuant to the requirements of the Securities Act of 1933,
Second Bancorp, Inc., 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 Warren, State of Ohio, on the 30th day of July,
1997.
SECOND BANCORP, INC.
By: /s/ Alan G. Brant
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Alan G. Brant
Chairman and President
/s/ David L. Kellerman
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David L. Kellerman
Treasurer (Principal Financial
Officer)
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated on the 30th day of July, 1997.
Alan G. Brant John A. Anderson
Director and Principal Executive Officer Director
R. J. Wean, III Norman C. Harbert
Director Director
J.C. Gibson Robert J. Webster
Director Director
John L. Pogue
Director
By /s/ John L. Pogue
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John L. Pogue, Attorney-in-fact
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INDEX TO EXHIBITS
Number Description
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4.1 1997 Restricted Stock Plan
5.1 Opinion of Hoppe, Frey, Hewitt & Milligan
as to legality of securities being registered
23.1 Consent of Hoppe, Frey, Hewitt & Milligan
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young
24.1 Power of Attorney
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EXHIBIT 4.1
1997 RESTRICTED STOCK PLAN
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1. PURPOSES OF THE PLAN. The purposes of the Second Bancorp, Incorporated
(the "Corporation") 1997 Restricted Stock Plan (the "Plan") are:
(i) to promote the long-term stability of the Corporation and its
subsidiaries (together, the "Company") by incenting key
employees to remain with the Company;
(ii) to assist the Company in its ongoing efforts to attract highly
qualified, experienced employees to fill key strategic
positions; and
(iii) to tie the medium-to-long term financial interest of key
employees to the value of the Corporation's stock and,
therefore, to better align their financial interests with
those of the Corporation's shareholders.
2. ADMINISTRATION. Except with respect to matters addressed in paragraph
12, the Plan shall be fully administered by the Compensation and
Organization Committee (the "Committee") of the Company under
authorization granted to it by the Corporation's board of directors
(the "Board") . The Committee' s authority to administer the Plan
specifically includes, among other things, the right to determine and
make restricted stock awards to key employees and/or authorize the
offer of restricted stock to prospective employees under the Plan.
3. SHARES SUBJECT TO THE PLAN. Subject to the restrictions described
in paragraph 7, twenty-five thousand (25,000) shares of common stock of
the Corporation shall be set aside for issuance from time to time under
this Plan. Shares awarded under the Plan shall be deemed to be issued
and outstanding from and after the date of award and, except as
provided in paragraphs 7 and 8, shall have all the indicia of ownership
including the right to receive dividends, to participate in stock
splits or other recapitalizations of the Corporation, and to vote on
all matters submitted to the Corporation's shareholders for action. Any
restricted shares forfeited under the terms of the Plan pursuant to
paragraph 9 shall again be available for issuance under the Plan.
Shares shall be made available from authorized, unissued or treasury
shares of common stock. In the event that any stock split or any
combination or exchange of shares is declared and implemented by the
Corporation, the number of shares available for award under the Plan
shall immediately and automatically adjust to take into account the
foregoing.
4. PARTICIPANTS. With the exception of Company employees participating in
the Corporation's Amended Stock Option Incentive Plan and/or any other
qualified or non-qualified shareholder approved option plan in effect
from time to time, all employees of the Company shall
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be eligible to participate in the Plan. In addition the Committee may,
from time to time, authorize the Company to offer a specified number of
restricted shares to applicants being considered for key positions with
the Company. The award of restricted shares pursuant to such an offer
shall, however, be conditioned upon the prospective employee's prior
acceptance of a position, and entry into service, with the Company.
5. AWARD OF SHARES. The Committee shall identify and designate from time
to time those key employees of the Company to be awarded restricted
shares of stock under the Plan (a "Recipient") . The Committee shall
determine the number of shares to be granted to each Recipient
provided, however, that the maximum current value (determined by
multiplying the mid-point of the then inside "bid" and "ask" prices of
the Corporation's common stock by the number of restricted shares
being awarded) of restricted shares awarded to any Recipient at any one
time may not exceed an amount equal to 30% of the Recipient's then
current annual base salary. Each award of restricted stock under the
Plan shall be evidenced by a restricted stock agreement executed by the
Corporation and the Recipient in such form as the Committee shall
prescribe from time to time in accordance with the Plan.
6. CRITERIA FOR AWARDS. In determining whether to grant restricted shares
under the Plan to an eligible participant and the number of restricted
shares to be awarded, the Committee shall take into account (i) the
present and potential contributions of the Recipient to the success of
the Company, (ii) the nature of the Recipient's expertise and the
anticipated difficulty that would be experienced in replacing him or
her, (iii) the Recipient's potential for managerial development, (iv)
the importance of continuity in the position occupied by the Recipient,
and (v) such other facts and matters as the Committee may deem relevant
to accomplishing the purposes of the Plan.
7. RESTRICTIONS. Except as provided in paragraph 10, shares issued under
the Plan may not be sold, pledged as collateral or otherwise
transferred by the Recipient to any other person or entity nor may any
Recipient sell, assign or otherwise transfer his or her right to
receive dividends for a period commencing on the date the restricted
shares are awarded and ending on the fifth (5th) anniversary date
thereof (the "Restriction Period"). The day on which the Committee
approves the restricted stock award shall be considered the date on
which the shares are awarded. In addition, awards of restricted shares
under the Plan shall be subject to such other conditions and
restrictions as the Committee may deem advisable for the Company's
better protection.
8. ISSUANCE OF STOCK CERTIFICATES. Recipients of restricted stock under
the Plan shall not be entitled to the physical possession of a stock
certificates(s) during the Restriction Period. Shares awarded under the
Plan shall instead be evidenced during the Restriction Period by stock
certificate(s) maintained in safekeeping by the Company and bearing
an appropriate restrictive legend. At
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the end of the Restriction Period, the Corporation will cause the
restricted stock certificate(s) held in safekeeping to be reissued in
unrestricted form and will promptly deliver the unrestricted
certificate(s) to the Recipient.
9. FORFEITURE OF SHARES. Restricted shares issued under the Plan shall
automatically be forfeited by the Recipient if, during the Restriction
Period, the Recipient (i) resigns from his or her position with the
Company, (ii) is terminated by the Company for cause, or (iii) in the
determination of the Committee, violates or attempts to violate any
term of the stock award.
10. SPECIAL OCCURRENCES. If, during the Restriction Period, the Recipient
dies, becomes permanently unable to perform his/her job as a result of
a disability (as that term is defined from time to time for Social
Security purposes), retires at the age of at least 55, or if a change
in control of the Company occurs, all restrictions on the Recipient's
stock shall terminate and an unrestricted share certificate shall
thereafter be issued to the Recipient (or his/her heirs, executors,
administrators or legal representative(s) as appropriate).
11. TAX IMPLICATIONS TO RECIPIENTS. Generally, the full fair market value
of Plan shares on the date they become unrestricted is includable in
the Recipient's gross income for the year in which the shares become
unrestricted UNLESS the Recipient elects within 30 days of the stock
award to treat the value of the shares on the date of award as ordinary
income in that year. Share appreciation after the date the Recipient
takes their value into gross income for tax purposes is treated as
capital gain. Cash dividends paid to Recipients on restricted shares
are taxable as ordinary income in the year received. This summary
material is provided for information only. Each Recipient should
consult with his/her tax advisor before acting in reliance hereon.
12. AMENDMENT. The Board may, by resolution, amend or revise the Plan in
all respects except as to those things which, as a matter of law,
regulation or corporate governance require shareholder or other
approval. The Board may not, without the consent of the holder of
restricted stock issued under the Plan, alter or otherwise impair any
right or term regarding outstanding restricted shares.
13. EFFECTIVE DATE. The Plan is effective as of the March 11, 1997 date of
its adoption by the Board of Directors provided, however, that no
restricted shares shall be issued under the Plan until such time as all
necessary legal and regulatory notices have been given and approvals
obtained.
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Exhibit 5.1
July 30, 1997
Second Bancorp, Inc.
108 Main Avenue, S.W.
Warren, OH 44481
RE: 50,000 Shares of Common Stock, no par value,
of Second Bancorp, Inc., to be issued in
connection with the Corporation's 1997
Restricted Stock Plan
Gentlemen:
We have acted as your counsel in connection with the adoption
of the 1997 Restricted Stock Plan (the "Plan") pursuant to which the Corporation
will issue up to 50,000 shares of its Common Stock, no par value (the "Common
Shares").
We have examined such documents, records and matters of law as
we have deemed necessary for purposes of this opinion, and based thereupon, we
are of the opinion that the Common Shares, upon their issuance in accordance
with the terms of the Plan, will be duly authorized, validly issued, fully paid,
and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Form S-8 Registration Statement No. 33-________ filed by the Corporation
to effect registration of the Common Shares under the Securities Act of 1933, as
amended, and to the reference to us under the caption "Legal Matters" in the
prospectus comprising a part of such Registration Statement.
Very truly yours,
HOPPE, FREY, HEWITT & MILLIGAN
Michael G. Marando, Partner
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Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Registered Stock Plan of Second Bancorp, Inc.
of our report dated January 23, 1997, with respect to the consolidated
financial statements included in the Annual Report (Form 10-K) of Second
Bancorp, Inc. for the year ended December 31, 1996.
Ernst & Young LLP
Cleveland, Ohio
July 28, 1997
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Exhibit 24.1
POWER OF ATTORNEY
SECOND BANCORP, INCORPORATED
Know all men by these presents, that each person whose
signature appears below constitutes and appoints John L. Pogue and Michael G.
Marando and each of them such person's true and lawful attorney-in-fact and
agent, with full power of substitution and revocation, for such person and in
such person's name, place and stead, in any and all capacities, to sign one or
more Registration Statements pursuant to the Securities Act of 1933, as amended,
with respect to the registration of shares of Second Bancorp, Incorporated's
Common Stock to be issued from time to time pursuant to Second Bancorp,
Incorporated's Restricted Stock Plan and Incentive Stock Option Plan and any and
all amendments (including post-effective amendments) thereto, and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent and
each of them, or their or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
WITNESS the due execution hereof by the following persons in
the capacities indicated on this 29th day of July, 1997.
/s/ Alan G. Brant /s/ John A. Anderson
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Alan G. Brant, Director and John A. Anderson, Director
Principal Executive Officer
/s/ R. J. Wean, III /s/ Norman C. Harbert
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R. J. Wean, III, Director Norman C. Harbert, Director
/s/ J. C. Gibson /s/ Robert J. Webster
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J. C. Gibson, Director Robert J. Webster, Director
/s/ John L. Pogue
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John L. Pogue, Director
