As filed with the Securities and Exchange Commission on December 31, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHARTER ONE FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 34-1567092
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1215 Superior Avenue, Cleveland, Ohio 44114
(Address of principal executive offices) (Zip Code)
CHARTER ONE BANK RETIREMENT SAVINGS PLAN
(Full title of the plan)
Michael S. Sadow, P.C.
Matt A. Mullins, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
1100 New York Ave., N.W.
Washington, D.C. 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
- ------------------------------------- -------------------- ------------------ ------------------ ----------------------
Common Stock, $.01 par value 2,000,000 shares $25.85(1) $51,700,000(1) $14,373(1)
Interests in Plan(2) N/A(2) N/A N/A N/A(2)
- ------------------------------------- -------------------- ------------------ ------------------ ----------------------
<FN>
(1) Estimated in accordance with Rule 457(h), calculated on the basis of
$25.85 per share, which was the average of the high and low prices
of the Company common stock on the Nasdaq Stock Market on December 29,
1998.
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein. In accordance with Rule 457(h)(2) no separate fee
calculation is made for plan interests.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the Charter One Bank Retirement Savings
Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by Charter One with
the Commission (are hereby incorporated by reference in this Registration
Statement and the prospectus to which this Registration Statement relates (the
"Prospectus"), which Prospectus has been or will be delivered to the
participants in the Plan covered by this Registration Statement:
1. The Annual Report on Form 10-K of Charter One for the fiscal year ended
December 31, 1997 (File No. 0-16311) filed pursuant to Rule 13a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
2. The Quarterly reports on Form 10-Q of Charter One for the quarterly
periods ended March 31, 1998; June 30, 1998; and September 30, 1998; and
Current Reports on form 8-K filed on June 17, 1998; July 22, 1998;
August 18, 1998; October 22, 1998; and December 9, 1998.
3. The description of the Charter One Common Stock contained in Charter
One's Registration Statement on Form 8-A dated January 12, 1988 (and any
amendments or reports filed for the purpose of updating the
description).
All documents subsequently filed by Charter One with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date
hereof, and 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 Prospectus and 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 in the Prospectus shall be deemed to be modified or superseded for purposes
of this Registration Statement and the Prospectus 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 Prospectus.
All information appearing in this Registration Statement and the Prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law sets forth circumstances
under which directors, officers, employees and agents of Charter One may be
insured or indemnified against liability which they may incur in their
capacities as such:
ss.145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE. (a) A corporation shall have power 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 the person 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, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, 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 which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power 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 the person 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, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine 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
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
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(d) Any indemnification under subsections (a) and (b) 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 present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who 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, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any 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
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plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the corporation" as
referred to in this section.
(j) The indemnification and advancement of expense provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
Article TWELFTH of Charter One's certificate of incorporation further
provides as follows:
TWELFTH: Indemnification.
A. Actions, Suits or Proceedings Other than by or in the Right of the
Corporation. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to or is involved in 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 or she, or a person
of whom he or she is the legal representative, is or was or has agreed to
become a director or officer of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
partner, member or trustee of another corporation, including, without
limitation, any Subsidiary of the Corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee
benefit plans, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including
attorneys' fees and related disbursements), judgments, fines (including,
without limitation, ERISA excise taxes and penalties) and amounts paid in
settlement actually and reasonably incurred by such person or on such
person's behalf in connection with such action, suit or proceeding and any
appeal therefrom, if such person acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful; provided,
however, that, except as provided in paragraph F hereof with respect to
proceedings seeking to enforce rights of indemnification, the Corporation
shall indemnify such person seeking indemnification with respect to a
proceeding (or part thereof) initiated by such person only if such
proceeding or part thereof was authorized by a majority of the Continuing
Directors. The termination of any action, suit or proceeding by judgment,
order, settlement, 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 which he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
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B. Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to or is involved in 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 or she, or a person of
whom he or she is the legal representative, is or was or has agreed to
become a director or officer of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
partner, member or trustee of another corporation, including, without
limitation, any Subsidiary of the Corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee
benefit plans, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and expenses (including
attorneys' fees and related disbursements) actually and reasonably incurred
by such person or on such person's behalf in connection with the defense or
settlement of such action or suit and any appeal therefrom, if such person
acted in good faith and in a manner he or she 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 claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such costs, charges and expenses which the Court
of Chancery or such other court shall deem proper. Notwithstanding the
provisions of this paragraph B, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person (except with respect to proceedings
seeking to enforce rights to indemnification pursuant to paragraph F), only
if such proceeding (or part thereof) was authorized by a majority of the
Continuing Directors.
C. Indemnification for Costs, Charges and Expenses of Successful Party.
Notwithstanding the other provisions of this Article TWELFTH, to the extent
that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in paragraphs A and B of this Article TWELFTH, or in
defense of any claim, issue or matter therein, such person shall be
indemnified against all costs, charges and expenses (including attorneys'
fees) actually and reasonably incurred by such person or on such person's
behalf in connection therewith.
D. Determination of Right to Indemnification. Any indemnification under
paragraphs A and B of this Article TWELFTH shall be made by the Corporation
as authorized in the specific case upon a determination (i) by the Board of
Directors by a majority vote of a quorum of the directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, if a majority of a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion that indemnification of the person seeking indemnification
is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in paragraphs A and B of this Article TWELFTH.
Should a determination be made by the Corporation hereunder that
indemnification is not proper in the circumstances, a court may order the
Corporation to make indemnification pursuant to paragraphs A or B of this
Article TWELFTH.
E. Advance of Costs, Charges and Expenses. Costs, charges and expenses
(including attorneys' fees and related disbursement) incurred by a person
referred to in paragraphs A or B of the Article TWELFTH in defending a civil
or criminal action, suit or proceeding shall be paid
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by the Corporation in advance of the final disposition of such action, suit
or proceeding, provided, however, that, if the Delaware Corporation Law so
requires, the payment of such expenses incurred by an officer or director of
the Corporation in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while
a director or officer, including without limitation, service to an employee
benefit plan) in advance of the final disposition of such action, suit or
proceeding shall be made only upon receipt of an undertaking by or on behalf
of the director or officer to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article TWELFTH. A
majority of the Continuing Directors may, upon approval of an indemnified
person, authorize the Corporation's counsel to represent such person, in any
action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
F. Procedure for Indemnification; Right of Claimant to Bring Suit. Any
indemnification under paragraphs A, B and C, or advance of costs, charges
and expenses under paragraph E of this Article TWELFTH, shall be made
promptly, and in any event within 60 days (or in the case of any advance of
costs, charges and expenses under paragraph E, within 20 days), upon the
written request of the person referred to in such paragraphs. The right to
indemnification or advances as granted by this Article TWELFTH shall be
enforceable by the persons referred to in paragraphs A, B, C and E in any
court of competent jurisdiction, if the Corporation denies such request, in
whole or in part, or if no disposition thereof is made within the applicable
time period specified in the preceding sentence hereof. The costs, charges
and expenses incurred by a person referred to in paragraph A or B of this
Article TWELFTH in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action shall also
be indemnified by the Corporation. It shall be a defense to any such action
(other than an action brought to enforce a claim for the advance of costs,
charges and expenses under paragraph E of this Article TWELFTH, where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in paragraphs A or B
of this Article TWELFTH, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its Board
of Directors, its independent legal counsel, and its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because the
claimant has met the applicable standard of conduct set forth in paragraphs
A or B of this Article TWELFTH, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors or its
independent legal counsel) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of
conduct.
G. Other Rights: Continuation of Right to Indemnification. The
indemnification and advancement of expenses provided by this Article TWELFTH
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(common or statutory), bylaw, agreement, vote of stockholder or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding office
or while employed by or acting as agent for the Corporation, and the
indemnification and advancement of expenses provided by this Article TWELFTH
shall continue as to a person who has ceased to serve in a capacity referred
to in paragraph A or B and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. Nothing contained in this
Article TWELFTH shall be deemed to prohibit, and the Corporation is
specifically authorized to enter into, agreements between the Corporation
and directors, officers, employees or agents providing indemnification
rights and procedures different
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from those set forth herein. All rights to indemnification and advancement
of expenses under this Article TWELFTH shall be deemed to be a contract
between the Corporation and each person referred to in paragraph A or B of
this Article TWELFTH who serves or served in such capacity at any time while
this Article TWELFTH is in effect. Any repeal or modification of this
Article TWELFTH or any repeal or modification of relevant provisions of the
Delaware Corporation Law or any other applicable laws shall not in any way
diminish any rights to indemnification of any person referred to in
paragraph A or B of this Article TWELFTH or the obligations of the
Corporation arising hereunder with respect to any action, suit or proceeding
arising out of, or relating to, any actions, transactions or facts occurring
prior to the final adoption of such modification or repeal.
H. Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by a majority
vote of the disinterested directors, indemnify any employee or agent of the
Corporation or any person who is or was serving or has agreed to serve at
the request of the Corporation as an employee or agent of any corporation,
including, without limitation, any Subsidiary of the Corporation,
partnership, joint venture, trust or other enterprise and pay the expenses
incurred by any such person in defending any proceeding in advance of its
final disposition, to the fullest extent of the provisions of this Article
TWELFTH.
I. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
partner, member, trustee, employee or agent of another corporation,
including, without limitation, any Subsidiary of the Corporation,
partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, against any liability asserted
against such person and incurred by such person or on his or her behalf in
any such capacity, or arising out of such person's status as such, whether
or not the Corporation would have the power to indemnify such person against
such liability under the provisions of this Article TWELFTH.
J. Savings Clause. If this Article TWELFTH or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each person referred to
paragraph A or B of this Article TWELFTH as to any cost, charge and expense
(including attorneys' fees and related disbursements), judgment, fine
(including, without limitation, ERISA excise taxes and penalties) and amount
paid in settlement with respect to any action, suit or proceeding; whether
civil, criminal, administrative or investigative, including an action by or
in the right of the Corporation, to the full extent permitted by any
applicable portion of this Article TWELFTH that shall not have been
invalidated and to the full extent permitted by applicable law.
K. Subsequent Legislation. If the Delaware Corporation Law is hereafter
amended to further expand the indemnification permitted to persons referred
to in paragraphs A and B of this Article TWELFTH then the Corporation shall
indemnify such persons to the fullest extent permitted by the Delaware
Corporation Law, as so amended.
Charter One has purchased director and officer liability insurance that
insures directors and officers against certain liabilities in connection with
the performance of their duties as directors and officers, and that provides for
payment to Charter One of costs incurred by it in indemnifying its directors and
officers.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Index to Exhibits 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;
(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.
(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.
(4) To submit, if it has not already done so, the Plan to the Internal
Revenue Service in a timely manner and to make all changes required in
order to qualify the Plan under Section 401 of the Internal Revenue
Code.
(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.
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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 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.
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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
the requirements for filing on Form S-8 and the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Cleveland, State of Ohio, on December 31, 1998.
CHARTER ONE FINANCIAL, INC.
By: /s/ CHARLES JOHN KOCH
-----------------------------------------
Charles John Koch, Chairman of the Board,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
We, the undersigned directors and officers of the Registrant, hereby
severally appoint Charles John Koch, Richard W. Neu and Robert J. Vana, or any
of them, our true and lawful attorneys and agents, to do any and all things in
our names in the capacities indicated below which said Charles John Koch,
Richard W. Neu or Robert J. Vana may deem necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission, in
connection with the Registration Statement on Form S-8 relating to the offering
of the Registrant's common stock, including specifically, but not limited to,
power and authority to sign for us in our names in the capacities indicated
below in this Registration Statement, any and all amendments (including
post-effective amendments) thereto; and we hereby approve, ratify and confirm
all that said Charles John Koch, Richard W. Neu or Robert J. Vana shall lawfully
do or cause to be done by virtue thereof.
Signature
/s/CHARLES JOHN KOCH Date: December 31, 1998
- ------------------------------------------ ------------------
Charles John Koch, Chairman of the Board
Chairman of the Board, President and
Chief Executive Officer
(Principal Executive Officer)
/s/RICHARD W. NEU Date: December 31, 1998
- ------------------------------------------ ------------------
Richard W. Neu
Director and Chief Financial Officer
(Principal Financial Officer)
/s/EUGENE B. CARROLL, SR. Date: December 31, 1998
- ------------------------------------------ ------------------
Eugene B. Carroll, Sr., Director
II-10
<PAGE>
Date:
- ------------------------------------------ ------------------
Herbert G. Chorbajian, Director
/s/PHILLIP W. FISHER Date: December 31, 1998
- ------------------------------------------ ------------------
Phillip W. Fisher, Director
/s/DENISE M. FUGO Date: December 31, 1998
- ------------------------------------------ ------------------
Denise M. Fugo, Director
/s/MARK D. GROSSI Date: December 31, 1998
- ------------------------------------------ ------------------
Mark D. Grossi, Director
/s/CHARLES M. HEIDEL Date: December 31, 1998
- ------------------------------------------ ------------------
Charles M. Heidel, Director
Date:
- ------------------------------------------ ------------------
Karen R. Hitchcock, Director
/s/JOHN D. KOCH Date: December 31, 1998
- ------------------------------------------ ------------------
John D. Koch, Director
/s/MICHAEL P. MORLEY Date: December 31, 1998
- ------------------------------------------ ------------------
Michael P. Morley, Director
/s/HENRY R. NOLTE, JR. Date: December 31, 1998
- ------------------------------------------ ------------------
Henry R. Nolte, Jr., Director
/s/RONALD F. POE Date: December 31, 1998
- ------------------------------------------ ------------------
Ronald F. Poe, Director
/s/VICTOR A. PTAK Date: December 31, 1998
- ------------------------------------------ ------------------
Victor A. Ptak, Director
/s/ MELVIN J. RACHAL Date: December 31, 1998
- ------------------------------------------ ------------------
Melvin J. Rachal, Director
/s/JEROME L. SCHOSTAK Date: December 31, 1998
- ------------------------------------------ ------------------
Jerome L. Schostak, Director
/s/MARK SHAEVSKY Date: December 31, 1998
- ------------------------------------------ ------------------
Mark Shaevsky, Director
/s/LEONARD S. SIMON Date: December 31, 1998
- ------------------------------------------ ------------------
Leonard S. Simon, Director.
/s/JOHN P. TIERNEY Date: December 31, 1998
- ------------------------------------------ ------------------
John P. Tierney, Director.
/s/ERESTEEN R. WILLIAMS Date: December 31, 1998
- ------------------------------------------ ------------------
Eresteen R. Williams, Director
II-11
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
- --------------------------------------------------------------------------------
4.1 Certificate of Amendment of Second Restated Certificate of
Incorporation of Charter One Financial, Inc. filed on December 24,
1998 as Exhibit 4.3 to the Registrant's Registration Statement on
Form S-8 (File No. 333-65137), is incorporated herein by reference.
4.2 Certificate of Amendment of Second Restated Certificate of
Incorporation of Charter One Financial, Inc., filed on July 28, 1998
as Exhibit 3.1 to Registrant's Registration Statement on Form S-4
(File No. 333-60045), is incorporated herein by reference.
4.3 Second Restated Certificate of Incorporation of Charter One
Financial, Inc., filed on November 15, 1995 as Exhibit 4.1 to
Registrant's Current Report on Form 8-K (File No. 000-16311), is
incorporated herein be reference.
4.4 Bylaws of Charter One Financial, Inc., as amended and currently in
effect, filed on August 8, 1997 as exhibit 3.2 to Registrant's
Registration Statement on form S-4 (File No. 333-33169), is
incorporated herein by reference.
4.5 Form of Certificate of Common Stock, filed on January 22, 1988 as
Exhibit 4.2 to Registrant's Registration Statement on Form S-1 (File
No. 33-16207), is incorporated herein by reference.
4.6 Shareholder Rights Agreement dated November 21, 1989, between
Charter One and First National Bank of Boston, as amended on May 26,
1995, filed as Exhibit 4.2 to Registrant's Report on Form 10-K for
the fiscal year ended December 31, 1994 and December 31, 1995,
respectively, is incorporated herein by reference.
5.1 Opinion of Silver, Freedman & Taff, L.L.P.
5.2 Undertaking that Charter One has submitted or will submit the Plan
to the Internal Revenue Service to qualify the Plan under Section
401 of the Internal Revenue Code.
(Included in Item 9)
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG Peat Marwick, L.L.P.
23.3 Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit 5.1)
24 Power of Attorney (contained on signature page)
II-12
EXHIBIT 5.1
SILVER, FREEDMAN & TAFF, L.L.P.
1100 New York Avenue, N.W.
Washington, D.C. 20005
(202) 414-6100
December 31, 1998
Board of Directors
Charter One Financial, Inc.
1215 Superior Avenue
Cleveland, Ohio 44114
Members of the Board:
We have acted as counsel to Charter One 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 (the "Registration Statement") relating to 2,000,000
shares of the Corporation's Common Stock, par value $.01 per share (the "Common
Stock"), to be offered pursuant to the Charter One Bank Retirement Savings Plan
(the "Plan").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan and agreements thereto,
the Corporation's Second Restated Certificate of Incorporation, as amended,
Bylaws, as amended, resolutions of its Board of Directors and such other
documents and corporate records as we deem appropriate for the purpose of
rendering this opinion.
Based upon the foregoing, it is our opinion that:
1. The shares of Common Stock being so registered have been duly
authorized.
2. The shares of Common Stock to be offered by the Corporation will be,
when and if issued, sold and paid for as contemplated by the Plan,
legally issued, fully paid and non-assessable shares of Common Stock of
the Corporation.
We hereby consent to the inclusion of this opinion as Exhibit 5 in this
Registration Statement on Form S-8 of Charter One Financial, Inc. 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.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
Charter One Financial, Inc.
We consent to the incorporation by reference in this Registration Statement of
Charter One Financial, Inc. on Form S-8 of our report dated January 27, 1998
(which expresses an unqualified opinion and refers to the report of other
auditors on the consolidated financial statements of RCSB Financial, Inc. which
was merged with Charter One Financial, Inc.), appearing in the Annual Report on
Form 10-K of Charter One Financial, Inc. for the year ended December 31, 1997.
/s/ Deloitte & Touche LLP
Cleveland, Ohio
December 28, 1998
<PAGE>
EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors
Charter One Financial, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Charter One Financial, Inc. of our report dated December 13, 1996,
relating to the consolidated statements of condition of RCSB Financial, Inc. and
subsidiaries as of November 30, 1996 and 1995 and the related consolidated
statements of income, changes in shareholders' equity and cash flows for each of
the years in the three-year period ended November 30, 1996, which report is
incorporated by reference in the November 30, 1996 annual report on Form 10-K of
RCSB Financial, Inc. Our report refers to changes in accounting for mortgage
servicing rights in 1995.
/s/ KPMG Peat Marwick, LLP
December 28, 1998
