<PAGE> 1
As filed with the Securities and Exchange Commission on January 23, 1998
Registration No. 333-_________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TOWNE FINANCIAL CORPORATION
(Exact name of registrant specified in its charter)
OHIO 31-1334563
(State of Incorporation) (I.R.S. Employer Identification No.)
4811 Cooper Road
Blue Ash, Ohio 45242
(Address of Principal Executive Offices)
---------------
TOWNE FINANCIAL CORPORATION
1997 STOCK OPTION PLAN
(Full title of the plan)
---------------
RICHARD J. VALLEAU, ESQ.
CORS & BASSETT
1200 CAREW TOWER, 441 VINE STREET
CINCINNATI, OHIO 45202
(513)852-8204
(Name, address and telephone number of agent for service)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE(1) FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $1.00 20,000 shares $27.50 $550,000 $167
======================= ======================= ======================= ======================= ======================
<FN>
(1) Estimated solely for the purpose of calculating the registration
fee. The Corporation's stock trades infrequently. All recent trades have been
at a price of $27.50 per share.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Towne Financial Corporation (the
"Corporation") with the Securities and Exchange Commission (Common File No.
020144) are incorporated by reference into this Registration Statement:
(a) The Corporation's Annual Report on Form 10-KSB for the year ended
June 30, 1997;
(b) The Corporation's 1997 Annual Report to Shareholders;
(c) The Corporation's Quarterly Report on Form 10-QSB for the quarter
ended September 30, 1997; and
(d) The description of the Corporation's Common Stock as contained in
the Registration Statement on Form S-1, effective February 6, 1993, and all
amendments or reports filed for the purpose of updating such description prior
to the termination of the offering of Common Stock hereby.
All documents subsequently filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), prior to the termination of this offering shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated by reference hereby shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein (or in any other subsequently filed document which
is also incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
EXPERTS
The consolidated financial statements incorporated in this
Registration Statement by reference from the Corporation's Annual Report to
Shareholders for the year ended June 30, 1997 have been audited by Grant
Thornton LLP, independent auditors, as stated in their report which is
incorporated herein by reference, and has been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of the Ohio Revised Code (the "Revised Code")
provides as follows:
(E)(1) A corporation may indemnify or agree 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 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, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, if he
had no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement, or 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
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree 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 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, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership, joint
venture, trust, or other enterprise, against expenses, including attorney's
fees, actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
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 of
the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the performance
of his duty to the corporation unless, and only to the extent that,
the court of common pleas or the court in which such action or suit
was brought determines, upon application, that despite the
adjudication of liability, but in view of all of the circumstances of
the
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case, such person is fairly and reasonably entitled to indemnity for
such expenses as the court of common pleas or such other court shall
deem proper;
(b) Any action or suit in which the only liability asserted
against a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee, member,
manager, or agent has been successful on the merits or otherwise in defense of
any action, suit, or proceeding referred to in division (E)(1) or (2) of this
section, or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) 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
director, trustee, officer, employee, member, manager, or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in division (E)(1) or (2) of this section. Such determination shall be
made as follows:
(a) By a majority vote of a quorum consisting of directors of
the indemnifying corporation who were not and are not parties to or
threatened with any such action, suit, or proceeding referred to in
division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has
performed services for the corporation or any person to be indemnified
within the past five years;
(c) By the shareholders,
(d) By the court of common pleas or the court in which such
action, suit, or proceeding referred to in division (E)(1) or (2) of
this section was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or brought
the action or suit by or in the right of the corporation under division (E)(2)
of this section, and, within ten days after receipt of such notification, such
person shall have the right to petition the court of common pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
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(5)(a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the
regulations of a corporation state, by specific reference to this
division, that the provisions of this division do not apply to the
corporation and unless the only liability asserted against a director
in an action, suit or proceeding referred to in division (E)(1) or (2)
of this section is pursuant to section 1701.95 of the Revised Code,
expenses, including attorney's fees, incurred by a director in
defending the action, suit, or proceeding shall be paid by the
corporation as they are incurred, in advance of the final disposition
of the action, suit, or proceeding, upon receipt of an undertaking by
or on behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent
jurisdiction that his action or failure to act
involved an act or omission undertaken with
deliberate intent to cause injury to the corporation
or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager or agent in
defending any action, suit, or proceeding referred to in division
(E)(1) or (2) of this section, may be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding, as authorized by the directors in the specific case,
upon receipt of an undertaking by or on behalf of the director,
trustee, officer, employee, member, manager, or agent to repay such
amount, if it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights granted to those
seeking indemnification under the articles, the regulations, any agreement, a
vote of shareholders or disinterested directors, or otherwise, both as to
action in their official capacities and as to action in another capacity while
holding their offices or positions, and shall continue as to a person who has
ceased to be a director, trustee, officer, employee, member, manager, or agent
and shall inure to the benefit of the heirs, executors, and administrators of
such a person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters of
credit, or self-insurance, on behalf of or for 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, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited
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liability company, or a partnership, joint venture, trust, or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or have the power to indemnify him against such liability under this
section. Insurance may be purchased from or maintained with a person in which
the corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant to
division (E)(1) or (2) of this section does not limit the payment of expenses
as they are incurred, indemnification, insurance, or other protection that may
be provided pursuant to divisions (E)(5), (6), and (7) of this section.
Divisions (E)(1) and (2) of this section do not create any obligation to repay
or return payments made by the corporation pursuant to divisions (E)(5), (6),
or (7).
(9) As used in division (E) of this section, "corporation" includes
all constituent entities in a consolidation or merger and the new or surviving
corporation, so that any person who is or was a director, officer, employee,
trustee, member, manager, or agent of such a constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another corporation, domestic
or foreign, nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving corporation as
he would if he had served the new or surviving corporation in the same
capacity.
Section 1701.13 (F)(7) of the Revised Code provides as follows:
(F) In carrying out the purposes stated in its articles and subject to
limitations prescribed by law or in its articles, a corporation may:
(7) Resist a change or potential change in control of the corporation
if the directors by a majority vote of a quorum determine that the change or
potential change is opposed to or not in the best interests of the corporation:
(a) Upon consideration of the interests of the corporation's
shareholders and any of the matters set forth in division (E) of
section 1701.59 of the Revised Code; or
(b) Because the amount or nature of the indebtedness and
other obligations to which the corporation or any successor or the
property of either may become subject in connection with the change or
potential change in control provides reasonable grounds to believe
that, within a reasonable period of time, any of the following would
apply:
(i) The assets of the corporation or any successor would
be or become less than its liabilities plus its
stated capital, if any;
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(ii) The corporation or any successor would be or become
insolvent;
(iii) Any voluntary or involuntary proceeding under the
federal bankruptcy laws concerning the corporation
or any successor would be commenced by any person.
Section 1701.59 of the Revised Code provides as follows:
(A) Except where the law, the articles, or the regulations require
action to be authorized or taken by shareholders, all of the authority of a
corporation shall be exercised by or under the direction of its directors. For
their own government, the directors may adopt bylaws that are not inconsistent
with the articles or the regulations. The selection of a time frame for the
achievement of corporate goals shall be the responsibility of the directors.
(B) A director shall perform his duties as a director, including his
duties as a member of any committee of the directors upon which he may serve,
in good faith, in a manner he reasonably believes to be in or not opposed to
the best interests of the corporation, and with the care that an ordinarily
prudent person in a like position would use under similar circumstances. In
performing his duties, a director is entitled to rely on information, opinions,
reports, or statements, including financial statements and other financial
data, that are prepared or presented by:
(1) One or more directors, officers, or employees of the
corporation who the director reasonably believes are reliable and
competent in the matters prepared or presented;
(2) Counsel, public accountants, or other persons as to
matters that the director reasonably believes are within the person's
professional or expert competence;
(3) A committee of the directors upon which he does not
serve, duly established in accordance with a provision of the articles
or the regulations, as to matters within its designated authority,
which committee the director reasonably believes to merit confidence.
(C) For purposes of division (B) of this section:
(1) A director shall not be found to have violated his duties
under division (B) of this section unless it is proved by clear and
convincing evidence that the director has not acted in good faith, in
a manner he reasonably believes to be in or not opposed to the best
interest of the corporation, or with the care that an ordinarily
prudent person in a like position would use under similar
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circumstances, in any action brought against a director, including
actions involving or affecting any of the following:
(a) A change or potential change in control of the
corporation, including a determination to resist a change or potential
change in control made pursuant to division (F) (7) of section 1701.13
of the Revised Code;
(b) A termination or potential termination of his service to
the corporation as a director;
(c) His service in any other position or relationship with
the corporation.
(2) A director shall not be considered to be acting in good
faith if he has knowledge concerning the matter in question that would
cause reliance on information, opinions, reports, or statements that
are prepared or presented by the persons described in divisions (B)
(1) to (3) of this section to be unwarranted.
(3) Nothing contained in this division limits relief
available under section 1701.60 of the Revised Code.
(D) A director shall be liable in damages for any action he takes or
fails to take as a director only if it is proved by clear and convincing
evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury
to the corporation or undertaken with reckless disregard for the best interests
of the corporation. Nothing contained in this division affects the liability of
directors under section 1701.95 of the Revised Code or limits relief available
under section 1701.60 of the Revised Code. This division does not apply if, and
only to the extent that, at the time of a director's act or omission that is
the subject of complaint, the articles or the regulations of the corporation
state by specific reference to this division that the provisions of this
division do not apply to the corporation.
(E) For purposes of this section, a director, in determining what he
reasonably believes to be in the best interests of the corporation, shall
consider the interests of the corporation's shareholders and, in his
discretion, may consider any of the following:
(1) The interests of the corporation's employees, suppliers,
creditors, and customers;
(2) The economy of the state and nation;
(3) Community and societal considerations;
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(4) The long-term as well as short-term interests of the
corporation and its shareholders, including the possibility that these
interests may be best served by the continued independence of the
corporation.
(F) Nothing contained in division (C) or (D) of this section affects
the duties of either of the following:
(1) A director who acts in any capacity other than his
capacity as a director;
(2) A director or a corporation that does not have issued and
outstanding shares that are listed on a national securities exchange
or are regularly quoted in an over-the counter market by one or more
members of a national or affiliated securities association, who votes
for or assents to any action taken by the directors of the corporation
that, in connection with a change in control of the corporation,
directly results in the holder or holders of a majority of the
outstanding shares of the corporation receiving a greater
consideration for their shares than other shareholders.
Code of Regulations
The Corporation's Code of Regulations provides that the Corporation
shall indemnify its officers, directors, employees and agents to the extent
permitted by the Revised Code.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration
Statement:
4.1 Amended Articles of Incorporation Exhibit 3.2 to Registration
Statement on Form S-1 (No. 33-43347) is incorporated herein by reference.
4.2 Code of Regulations Exhibit 3.3 to Registration Statement on Form
S-1 (No. 33- 43347) is incorporated herein by reference.
4.3 Towne Financial Corporation 1997 Stock Option Plan Appendix A to
the Corporation's Definitive Proxy Statement for the Annual Meeting of
Shareholders held on October 29, 1997 is incorporated herein by reference.
5 Opinion and consent of Cors & Bassett
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23.1 Consent of Cors & Bassett (included in Exhibit 5).
23.2 Consent of Grant Thornton LLP.
24 Powers of Attorney (included on signature page of the
Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Corporation 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 (a)(1)(i) and (a)(1)(ii) of this
Item 9 do not apply if the Registration Statement is on Form S-3 or Form S-8
and the information required to be included in the post-effective amendment by
those paragraphs is contained in periodic reports filed by the Corporation
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934.
(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) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Corporation'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
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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 Corporation pursuant to the foregoing provisions, or otherwise,
the Corporation 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
Corporation of expenses incurred or paid by a director, officer or controlling
person of the Corporation 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 Corporation 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, 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, thereunder duly
authorized, in the City of Blue Ash, State of Ohio, on January 21, 1998.
TOWNE FINANCIAL CORPORATION
By: /s/ Ralph E. Heitmeyer
----------------------------------
Ralph E. Heitmeyer, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William S. Siders and Joseph L. Michel,
each with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
any and all amendments or post-effective amendments to this Registration
Statement, and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that each
such attorney-in-fact and agent, or his or substitute, may lawfully do or cause
to be done by virtue hereof.
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Neil S. Strawser Chairman of the Board and January 21, 1998
- ----------------------------------- Director
Neil S. Strawser
/s/ Ralph E. Heitmeyer President and Director January 21, 1998
- ---------------------------------
Ralph E. Heitmeyer
/s/ William S. Siders Executive Vice President and January 21, 1998
- ----------------------------------- Director
William S. Siders
/s/ Herb L. Krombholz Vice President and Director January 21, 1998
- --------------------------------
Herb L. Krombholz
/s/ William T. Thornell Vice President and Director January 21, 1998
- ----------------------------------
William T. Thornell
/s/ Joseph L. Michel Chief Financial Officer, Vice January 21, 1998
- ----------------------------------- President and Treasurer
Joseph L. Michel
</TABLE>
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Exhibit 5
[CORS & BASSETT LETTERHEAD]
January 23, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
Re: Towne Financial Corporation --
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of a
registration statement on Form S-8 under the Securities Act of 1933, as amended
(the "Registration Statement"), covering 20,000 shares of common stock, par
value $1.00 per share (the "Shares"), of Towne Financial Corporation, an Ohio
corporation (the "Corporation"), to be issued under the Towne Financial
Corporation 1997 Stock Option Plan (the "Plan").
We have examined and are familiar with the Corporation's Articles of
Incorporation and Code of Regulations, and the various corporate records and
proceedings relating to the organization of the Corporation and the proposed
issuance of the Shares. We have also examined such other documents and
proceedings as we have considered necessary for the purpose of rendering this
opinion.
Based on the foregoing, it is our opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the Registration Statement and the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Richard J. Valleau
CORS & BASSETT
<PAGE> 1
Exhibit 23.2
ACCOUNTANTS' CONSENT
We have issued our report dated August 29, 1997, accompanying the
consolidated financial statements of Towne Financial Corporation which are
included in the Corporation's Annual Report on Form 10-KSB for the year ended
June 30, 1997. We hereby consent to the incorporation by reference of said
report in Towne Financial Corporation's Form S-8 as filed with the Securities
and Exchange Commission on or about January 23, 1998.
/s/ Grant Thornton LLP
Cincinnati, Ohio
January 22, 1998
