As filed with the Securities and Exchange Commission on August 22, 1996
Registration No. 333-3130
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TYSONS FINANCIAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Virginia 54-1527945
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
Suite 100
8200 Greensboro Drive
McLean, Virginia 22102
(Address of Principal Executive Offices) (Zip Code)
Tysons Financial Corporation 1992 Stock Option Plan
(Full title of the plan)
Terrie G. Spiro
Tysons Financial Corporation
Suite 100
8200 Greensboro Drive
McLean, Virginia 22102
(Name and address of agent for service)
(703) 556-0015
(Telephone number, including area code, of agent for service)
Copy to:
Francis X. Gallagher, Jr., Esq.
Venable, Baetjer and Howard, LLP
2010 Corporate Ridge, Suite 400
McLean, Virginia 22102
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount to Proposed maximum Proposed Amount of
Title of Securities be offering price maximum registration
to be registered registered per share offering price* fee
- ------------------------------------------------------------------------------------------
<S> <C>
Common Stock, 160,058 $9.75 $1,560,566 $539.00
$5.00 Par Value Shares
</TABLE>
* Calculated solely for the purpose of computing the registration fee pursuant
to Rules 457(c) and (h), based upon the average of the bid and asked price as
of August 21, 1996.
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the
Registrant, Tysons Financial Corporation, with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) Annual Report on Form 10-KSB/A-No. 1 for the fiscal
year ended December 31, 1995;
(b) Quarterly Report on Form 10-QSB for the period ended
March 31, 1996;
(c) Quarterly Report on Form 10-QSB for the period ended
June 30, 1996; and
(d) Description of Common Stock of the Registrant
contained or incorporated in the Registration
Statement filed by the Registrant under the
Securities Exchange Act of 1934, including any
amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, 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 of
the Registration Statement from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 13.1-697 of the Corporations Title of the Annotated
Code of Virginia permits a corporation to indemnify its present and former
directors, among others, against judgments, penalties, fines, settlements and
<PAGE>
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their services in those or other
capacities, unless it is established that (a) the director failed to conduct
himself in good faith and he did not believe (i) in the case of conduct in his
official capacity with the corporation, that his conduct was in the
corporation's best interests or (ii) in all other cases, that his conduct was
not at least opposed to its best interests; (b) the director or officer actually
received an improper personal benefit; or (c) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. Virginia law permits a corporation to indemnify a
present and former officer to the same extent as a director. In addition,
Section 13.1-699 of the Corporations Title of the Annotated Code of Virginia
permits a corporation to pay or reimburse, in advance of the final disposition
of a proceeding, reasonable expenses (including attorney's fees) incurred by a
present or former director or officer made a party to the proceeding by reason
of his service in that capacity, provided that the corporation shall have
received (a) a written affirmation by the director or officer of his good faith
belief that he has met the standard of conduct necessary for indemnification by
the corporation; (b) a written undertaking by or on his behalf to repay the
amount paid or reimbursed by the corporation if it shall ultimately be
determined that the standard of conduct was not met; and (c) a determination is
made that the facts then known to those making the determination would not
preclude indemnification.
The Registrant has provided for indemnification of directors, officers,
employees, and agents in Article Ten of its By-Laws. This provision reads as
follows:
ARTICLE TEN
Indemnification
Section 10.1 Indemnification. The corporation will have the power to
indemnify any person, his heirs, executors, or administrators, who was or is a
party or who 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
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<PAGE>
the fact that he 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, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise, against judgments, penalties, fines, settlements or
reasonable expenses (including attorneys' fees) incurred by him in connection
with such action, suit or proceeding, if: 1) he conducted himself in good faith
and believed a) in the case of conduct in his official capacity with the
corporation, that his conduct was in its best interests and b) in all other
cases, that his conduct was at least not opposed to its best interests; and 2)
in the case of any criminal proceeding, he had no reasonable cause to believe
his 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 will
not, of itself, create a presumption that the person did not act in a manner
which he believed in good faith 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 that his conduct was unlawful.
Section 10.2 Indemnification for Certain Actions. The
corporation may elect not to indemnify any person who was or is a party or who
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 he 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, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee benefit
plan, or other enterprise, against reasonable expenses (including attorneys'
fees) incurred by him in connection with: 1) a proceeding by or in the right of
the corporation in which he was adjudged liable to the corporation; or 2) any
other proceeding charging improper personal benefit to him, whether or not
involving action in his official capacity, in which he was adjudged liable on
the basis that personal benefit was improperly received by him.
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<PAGE>
Section 10.3 Mandatory Indemnification. To the extent that a
director, officer, employee, or agent of the corporation entirely prevails, on
the merits or otherwise, in defense of any action, suit, or proceeding referred
to in the foregoing Sections 10.1 and 10.2 of these by-laws or in defense of any
claim, issue, or matter therein, he will be indemnified against reasonable
expenses (including attorneys' fees) incurred by him in connection therewith.
Section 10.4 Findings of Indemnification. Any indemnification
under Sections 10.1 and 10.2 of these bylaws (unless ordered by a court) will be
made by the corporation only as authorized in the specific case, upon a
determination that indemnification of the director, officer, employee, or agent
is proper in the circumstances because he has met the applicable standard of
conduct as set forth in Sections 10.1 and 10.2. Such determination will be made:
(a) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action,
suit, or proceeding;
(b) if such a quorum is not obtainable, by majority vote of a
committee duly designated by the Board of Directors, (in which
designation directors who are parties may participate),
consisting solely of two or more directors not at the time
parties to the proceeding;
(c) by special legal counsel selected by the Board of
Directors or its committee or if a quorum of the Board of
Directors cannot be obtained and a committee cannot be
designated, selected by majority vote of the full Board of
Directors, in which selection directors who are parties may
participate; or
(d) by the shareholders, but shares owned by or voted under
the control of directors who are at the time parties to the
proceeding may not be voted on the determination.
Section 10.5 Payment of Expenses in Advance. Reasonable
expenses incurred in defending any action, suit,
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<PAGE>
or proceeding referred to above may be paid by the corporation in advance of the
final disposition of such action, suit, or proceeding as authorized in the
specific case upon receipt of a written affirmation of his good faith belief
that he has met the appropriate standard of conduct and furnishes a written
undertaking by or on behalf of the director, trustee, officer, employee or agent
to repay such amount if it will ultimately be determined that he is not entitled
to be indemnified by the corporation as provided above.
The Registrant has also entered into Indemnification Agreements
(collectively, the "Agreements") with each director by which the Registrant
agrees to indemnify such director to the full extent allowed by Virginia law.
The Agreements prohibit indemnification of a director for several reasons
including a director's knowing violation of the criminal law, willful misconduct
or unlawful distribution under 12 U.S.C. ss. 60.
Virginia law permits a corporation to limit by provision in its
articles of incorporation or bylaws the liability of directors and officers to
the corporation or to any stockholder for damages arising out of a single
transaction, occurrence or course of conduct the lesser of (a) the monetary
amount, including the limitation of liability, specified in the corporation's
articles or bylaws or (b) the greater of (i) $100,000 or (ii) the cash
compensation received by the officer or director from the corporation in the 12
months immediately preceding the act or omission giving rise to liability.
The Registrant has limited the liability of its directors for money
damages in Article XIII of its Articles of Incorporation. This section reads as
follows:
ARTICLE XIII
Limitations on Liability
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of the
director's duty of care or other duty as a director, except that this provision
shall not limit any liability for:
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<PAGE>
(i) acts or omissions which involve willful misconduct or
a knowing violation of the criminal law or of any federal or state securities
law, or
(ii) liability for unlawful distributions under Section
13.1-692 of the Virginia Stock Corporation Act.
The Registrant has limited the liability of its directors and officers
for money damages in Article Nine of its By-Laws. This provision reads as
follows:
ARTICLE NINE
Limitation of Liability of Officers and Directors
Section 9.1 Limited Liability. In any proceeding brought by or in the
right of the corporation or brought by or on behalf of shareholders of the
corporation, the damages assessed against an officer of director arising out of
a single transaction, occurrence or course of conduct shall not exceed the
greater of (i) $100,000 or (ii) the amount of cash compensation received by the
officer or director from the corporation during the twelve months immediately
preceding the act or omission for which liability was imposed.
Section 9.2 Exceptions to Limited Liability. The liability of an
officer or director shall not be limited if the officer or director engaged in
unlawful distributions, willful misconduct or a knowing violation of the
criminal law or any federal or state securities law, including, without
limitation, any claim of unlawful insider trading or manipulation of the market
for any security, as set forth in Virginia Stock Corporation Act Sections
13.1-692 and 13.1-692.1.
Section 9.3 Limitation or Elimination of Liability. No limitation or
elimination of liability may be affected by any amendment of the articles of
incorporation or by-laws with respect to any act or omission occurring before
such amendment.
Item 7. Exemption from Registration Claimed.
Not applicable.
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<PAGE>
Item 8. Exhibits.
4.1 Articles of Incorporation, as amended through December 6,
1989(1)
4.2 Amended and Restated Bylaws, as amended through April 17,
1996(2)
5 Opinion of Venable, Baetjer and Howard, LLP(3)
23.1 Consent of KPMG Peat Marwick LLP(3)
23.2 Consent of Venable, Baetjer and Howard, LLP (included in
Exhibit 5)
24 Power of Attorney(3)
-----------
1. Incorporated by reference to Exhibit 3(a) to Registration
Statement No. 33-33051-A on Form S-18
2. Incorporated by reference to Exhibit 3(b) to Amendment No. 2
to Registration Statement on Form SB-2, File No. 333-3130
3. Filed herewith.
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;
(ii) To reflect in the prospectus any facts or events
which, individually or together, represent a fundamental change in the
information in the Registration Statement;
(iii) To include any additional or changed material
information on the plan of distribution;
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<PAGE>
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
Sections 13 or 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 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.
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 Sections 13(a) or 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 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
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<PAGE>
question of 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant, Tysons Financial Corporation, 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 McLean, Commonwealth of Virginia,
on this 21st day of August, 1996.
TYSONS FINANCIAL CORPORATION
By: /s/ Terrie G. Spiro
Terrie G. Spiro
President and
Chief Executive Officer
(Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Terrie G. Spiro or Janet A. Valentine, or any one of
them acting singly, his or her true and lawful agents and attorneys-in-fact with
full power and authority in said agents and attorneys-in-fact, or any of them,
to sign for the undersigned and in his or her name, in the capacity indicated
opposite his or her name, this Registration Statement of Tysons Financial
Corporation on Form S-8 (and any pre-effective or post-effective amendment or
supplement to such Registration Statement) to be filed under the Securities Act
of 1933, with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
<S> <C>
/s/ Terrie G. Spiro President, Chief Executive August 21, 1996
- ---------------------------- Officer,
Terrie G. Spiro and Director
(Principal Executive Officer)
/s/ Joel M. Birken Director August 21, 1996
- ----------------------------
Joel M. Birken
/s/ Michael Farnum Director August 21, 1996
- ----------------------------
Michael Farnum
Director August , 1996
- ----------------------------
Alben G. Goldstein
/s/ Zachary A. Kaye Director August 21, 1996
- ----------------------------
Zachary A. Kaye
/s/ Beth W. Newburger Director August 21, 1996
- ----------------------------
Beth W. Newburger
/s/ J. Patrick Rowland Director August 21, 1996
- ----------------------------
J. Patrick Rowland
/s/ Richard Schwartz Director August 21, 1996
- ----------------------------
Richard Schwartz
/s/ William C. Sellery, Jr. Director August 21, 1996
- ----------------------------
William C. Sellery, Jr.
/s/ St. Clair J. Tweedie Director August 21, 1996
- ----------------------------
St. Clair J. Tweedie
/s/ Stephen A. Wannall Director August 21, 1996
- ----------------------------
Stephen A. Wannall
Chief Financial Officer
/s/ Janet A. Valentine (Principal Financial and August 21, 1996
- ---------------------------- Accounting Officer)
Janet A. Valentine
</TABLE>
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<PAGE>
Exhibit Index
Exhibit Number Description Page
5 Opinion of Venable, Baetjer and
Howard, LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Venable, Baetjer and
Howard, LLP (included in
Exhibit 5)
24 Power of Attorney (included in
signature page)
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Exhibit 5
Venable, Baetjer and Howard, LLP
2010 Corporate Ridge, Suite 400
McLean, Virginia 22102
(703) 760-1600
August 21, 1996
Tysons Financial Corporation
Suite 100
8200 Greensboro Drive
McLean, Virginia 22102
Gentlemen:
We have acted as counsel for Tysons Financial Corporation (the
"Corporation") in connection with a registration statement on Form S-8 of the
Corporation filed with the Securities and Exchange Commission (the "Registration
Statement"), pertaining to the registration of 160,058 shares of common stock
(par value $5.00 per share) of the Corporation (the "Shares") for issuance and
sale pursuant to the Corporation's 1992 Stock Option Plan (the "Plan").
In connection with this opinion, we have considered such
questions of law as we have deemed necessary as a basis for the opinions set
forth below, and we have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of the following: (i) the
Registration Statement; (ii) the Articles of Incorporation and By-Laws of the
Corporation, as amended and as currently in effect; (iii) certain resolutions of
the Board of Directors of the Corporation relating to the issuance of the Shares
and the other transactions contemplated by the Registration Statement; (iv) the
Plan; and (v) such other documents as we have deemed necessary or appropriate as
a basis for the opinion set forth below. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as
<PAGE>
certified or photostatic copies and the authenticity of the originals of such
copies. As to any facts material to this opinion that we did not independently
establish or verify, we have relied upon statements and representations of
officers and other representatives of the Corporation and others.
Based upon the foregoing, we are of the opinion that when
sold, issued and paid for as contemplated in the Registration Statement, the
Shares will be validly issued and will be fully paid and nonassessable.
The law covered by the opinion set forth above is limited to
the law of the Commonwealth of Virginia and the federal law of the United States
of America.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. In giving this consent,
we do not thereby 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 Commission thereunder.
Very truly yours,
/s/ VENABLE, BAETJER AND HOWARD, LLP
2
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Tysons Financial Corporation on Form S-8 of our report dated January 19, 1996,
appearing in the Annual Report on Form 10-KSB/A-No. 1 of Tysons Financial
Corporation for the year ended December 31, 1995, and to the reference to us
under the heading "Experts" in such Registration Statement.
August 22, 1996
Washington, D.C.
/s/ KPMG PEAT MARWICK LLP
