As filed with the Securities and Exchange Commission on January 23, 1998
Registration No. 33-90566
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
__________________________________
INDUSTRIAL BANCORP, INC.
(Exact name of registrant as specified in its Articles)
Ohio 34-1800830
(state or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
211 N. Sandusky St.
Bellevue , Ohio 44180
(Address of Principal Execution Offices)
Industrial Bancorp, Inc.
1996 Stock Option and Incentive Plan
(Full title of the plan)
David M. Windau
Industrial Bancorp, Inc.
211 N. Sandusky Street
Bellevue, Ohio 44180
(Name and address of agent for service)
(419) 483-3375
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Title of securities Proposed maximum Proposed maximum Amount of
to be registered Amount to be registered offering price per share aggregate offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares
No par value 555,450 $ * $6,866,751 $2,026
==============================================================================================================================
<FN>
<F*> Of the 555,450 shares being registered, 388,815 may be purchased for
$11.00 per share upon the exercise of options already granted. The
offering price of the remaining 166,635 shares, which have been
reserved for the future grant of options, has been determined for
purposes of calculating the registration fee pursuant to 17 C.F.R.
[Section Sign] 230.457(c) for "exchange traded securities" to be
$17.875 per share on January 20, 1998.
</FN>
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, and all documents filed with the Commission pursuant to
the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act
of 1934 ("Exchange Act") since that date are hereby incorporated by
reference.
The description of the Common Shares of the Registrant, as amended,
contained in the Registrant's Prospectus dated May 15, 1995, and
incorporated by reference into the Registrant's Registration Statement on
Form 8-A (No. 0-026248) filed with the Securities and Exchange Commission on
June 15, 1995, is hereby incorporated by reference.
Any definitive Proxy Statement or Information Statement filed pursuant
to Section 14 of the Exchange Act and all documents which may be filed with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date hereof 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 also
be deemed to be incorporated herein by reference and to be made a part
hereof from the date of filing such documents.
ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
None.
ITEM 6. Indemnification Of Directors and Officers.
A. Division (E) of Section 1701.13 of the Ohio Revised Code governs
indemnification by a corporation and 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, 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
the circumstances of the 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
divisions (E)(1) and (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
action or suit was brought to review the reasonableness of such
determination.
(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, member, manager,
or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, 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 any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would 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 division (E)(5), (6), or (7).
(9) As used in this division, references to "corporation"
includes all constituent corporations 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 corporation, or is or was serving at the request of such
constituent 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, 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.
B. Article Five of the Registrant's Code of Regulations provides for
the indemnification of officers and directors as follows:
Section 5.01. Mandatory Indemnification. The corporation shall
indemnify any officer or director of the corporation 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 (including, without limitation, any action threatened or
instituted 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 or agent of another corporation (domestic or
foreign, nonprofit or for profit), partnership, joint venture, trust or
other enterprise, against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript costs),
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, he had no reasonable cause to believe his
conduct was unlawful. A person claiming indemnification under this
Section 5.01 shall be presumed, in respect of any act or omission giving
rise to such claim for indemnification, to have 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 matter, to have had no
reasonable cause to believe his conduct was unlawful, and 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,
rebut such presumption.
Section 5.02. Court-Approved Indemnification. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director
of the corporation who was a party to any completed action or suit
instituted 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 or agent of another corporation (domestic or foreign,
nonprofit or for profit), partnership, joint venture, trust or other
enterprise, in respect of any claim, issue or matter asserted in such
action or suit as to which he shall have been adjudged to be liable
for acting with reckless disregard for the best interests of the
corporation or misconduct (other than negligence) in the performance
of his duty to the corporation unless and only to the extent that the
Court of Common Pleas of Huron County, Ohio, or the court in which
such action or suit was brought shall determine upon application that,
despite such adjudication of liability, and in view of all the
circumstances of the case, he is fairly and reasonably entitled to
such indemnity as such Court of Common Pleas or such other court shall
deem proper; and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as
contemplated by this Section 5.02.
Section 5.03. Indemnification for Expenses. Anything contained in
the Regulations or elsewhere to the contrary notwithstanding, to the extent
that an officer or director of the corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to
in Section 5.01, or in defense of any claim, issue or matter therein, he
shall be promptly indemnified by the corporation against expenses
(including, without limitation, attorneys' fees, filing fees, court
reporters' fees and transcript costs) actually and reasonably incurred by
him in connection therewith.
Section 5.04 Determination Required. Any indemnification required
under Section 5.01 and not precluded under Section 5.02 shall be made by the
corporation only upon a determination that such indemnification of the
officer or director is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 5.01. Such
determination may be made only (A) by a majority vote of a quorum consisting
of directors of the corporation who were not and are not parties to, or
threatened with, any such action, suit or proceeding, or (B) if such a
quorum is not obtainable or if a majority 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, or (C) by the
shareholders, or (D) by the Court of Common Pleas of Huron County, Ohio, or
(if the corporation is a party thereto) the court in which such action, suit
or proceeding was brought, if any; any such determination may be made by a
court under division (D) of this Section 5.04 at any time including, without
limitation, any time before, during or after the time when any such
determination may be requested of, be under consideration by or have been
denied or disregarded by the disinterested directors under division (A) or
by independent legal counsel under division (B) or by the shareholders under
division (C) of this Section 5.04; and no failure for any reason to make any
such determination, and no decision for any reason to deny any such
determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by shareholders under
division (C) of this Section 5.04 shall be evidence in rebuttal of the
presumption recited in Section 5.01. Any determination made by the
disinterested directors under division (A) or by independent legal counsel
under division (B) of this Section 5.04 to make indemnification in respect
of any claim, issue or matter asserted in an action or suit threatened or
brought by or in the right of the corporation shall be promptly communicated
to the person who threatened or brought such action or suit, and within ten
(10) days after receipt of such notification such person shall have the
right to petition the Court of Common Pleas of Huron County, Ohio, or the
court in which such action or suit was brought, if any, to review the
reasonableness of such determination.
Section 5.05. Advances for Expenses. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and
transcript costs) incurred in defending any action, suit or proceeding
referred to in Section 5.01 shall be paid by the corporation in advance of
the final disposition of such action, suit or proceeding to or on behalf of
the officer or director promptly as such expenses are incurred by him, but
only if such officer or director shall first agree, in writing, to repay all
amounts so paid in respect of any claim, issue or other matter asserted in
such action, suit or proceeding in defense of which he shall not have been
successful on the merits or otherwise:
(A) if it shall ultimately be determined as provided in
Section 5.04 that he is not entitled to be indemnified by the
corporation as provided under Section 5.01; or
(B) if, in respect of any claim, issue or other matter asserted
by or in the right of the corporation in such action or suit, he shall
have been adjudged to be liable for acting with reckless disregard for
the best interests of the corporation or misconduct (other than
negligence) in the performance of his duty to the corporation, unless
and only to the extent that the Court of Common Pleas of Huron County,
Ohio, or the court in which such action or suit was brought shall
determine upon application that, despite such adjudication of
liability, and in view of all the circumstances, he is fairly and
reasonably entitled to all or part of such indemnification.
Section 5.06. Article Five Not Exclusive. The indemnification
provided by this Article Five shall not be deemed exclusive of any other
rights to which any person seeking indemnification may be entitled under the
Articles or the Regulations or any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be an officer or director
of the corporation and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
Section 5.07. Insurance. The corporation may 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, trustee, officer, employee, or agent of
another corporation (domestic or foreign, nonprofit or for profit),
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the corporation would have the
obligation or the power to indemnify him against such liability under the
provisions of this Article Five.
Section 5.08. Certain Definitions. For purposes of this Article
Five, and as examples and not by way of limitation:
(A) A person claiming indemnification under this Article 5
shall be deemed to have been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 5.01,
or in defense of any claim, issue or other matter therein, if such
action, suit or proceeding shall be terminated as to such person, with
or without prejudice, without the entry of a judgment or order against
him, without a conviction of him, without the imposition of a fine
upon him and without his payment or agreement to pay any amount in
settlement thereof (whether or not any such termination is based upon
a judicial or other determination of the lack of merit of the claims
made against him or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes
assessed on a person with respect to an 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 plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in
the best interests 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" within the meaning
of that term as used in this Article Five.
Section 5.09. Venue. Any action, suit or proceeding to determine a
claim for indemnification under this Article Five may be maintained by the
person claiming such indemnification, or by the corporation, in the Court of
Common Pleas of Huron County, Ohio. The corporation and (by claiming such
indemnification) each such person consent to the exercise of jurisdiction
over its or his person by the Court of Common Pleas of Huron County, Ohio,
in any such action, suit or proceeding.
C. Registrant currently maintains a directors' and officers'
liability policy providing for insurance of directors and officers for
liability incurred in connection with performance of their duties as
directors and officers. Such policy does not, however, provide
insurance for losses resulting from willful or criminal misconduct.
ITEM 7. Exemption from Registration Claimed.
Not Applicable.
ITEM 8. Exhibits.
See the Exhibit Index attached hereto.
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 faces or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) ([Section Sign] 230.424(b) of this
chapter) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
Provided, however, That paragraphs (a)(1)(i) and
(a)(1)(ii) of this section do not apply if the
registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934, that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at 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) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to
include any financial statements required by [Section Sign]
210.3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial
statements and information otherwise required by Section
10(a)(3) of the Act need not be furnished, provided that
the registrant includes in the prospectus, by means of a
post-effective amendment, financial statements required
pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information necessary to
ensure that all other information in the prospectus is at
least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration
statements on Form F-3 ([Section Sign] 239.33 of this
chapter), a post-effective amendment need not be filed to
include financial statements and information required by
Section 10(a)(3) of the Act or [Section Sign] 210.3-19 of
this chapter is such financial statements and information
are contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Form F-3.
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 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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 of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Bellevue, State of Ohio, on
December 16, 1997.
INDUSTRIAL BANCORP, INC.
By: David M. Windau, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated.
Signature Title Date
- --------- ----- ----
Director December __, 1997
- ---------------------------
Graydon H. Hayward
Leon W. Maginnis Director December 16, 1997
- ---------------------------
Leon W. Maginnis
Director December __, 1997
- ---------------------------
Bob Moore
Lawrence R. Rhoades Chairman of the Board December 16, 1997
- ---------------------------
Lawrence R. Rhoades
Frederic C. Spurck Director December 16, 1997
- ---------------------------
Frederic C. Spurck
Roger O. Wilkinson Director December 16, 1997
- ---------------------------
Roger O. Wilkinson
David M. Windau Director, President December 16, 1997
- --------------------------- and Chief Financial
David M. Windau Officer
Patrick S. Smith Chief Accounting Officer December 16, 1997
- ---------------------------
Patrick S. Smith
EXHIBIT INDEX
Exhibit No.
- -----------
4 Industrial Bancorp, Inc. 1996 Stock Option and Incentive
Plan.
5 Opinion of Vorys, Sater, Seymour and Pease LLP as to
legality of shares being offered.
23(a) Consent of Independent Public Accountant.
23(b) Consent of Vorys, Sater, Seymour and Pease (included in
Exhibit 5).
EXHIBIT 4
INDUSTRIAL BANCORP, INC.
1996 STOCK OPTION AND INCENTIVE PLAN
Purpose. The purpose of the Industrial Bancorp, Inc. 1996 Stock
Option and Incentive Plan (this "Plan") is to promote and advance the
interests of Industrial Bancorp, Inc. (the "Company"), and its shareholders
by enabling the Company to attract, retain and reward directors, managerial
and other key employees of the Company and any Subsidiary (hereinafter
defined), and to strengthen the mutuality of interests between such
directors and employees and the Company's shareholders by providing such
persons with a proprietary interest in pursuing the long-term growth,
profitability and financial success of the Company.
Definitions. For purposes of this Plan, the following terms shall
have the meanings set forth below:
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor thereto, together with rules, regulations and
interpretations promulgated thereunder.
"Committee" means the Committee of the Board constituted as
provided in Section 3 of this Plan.
"Common Shares" means the common shares, without par value, of
the Company or any security of the Company issued in substitution, in
exchange or in lieu thereof.
"Company" means Industrial Bancorp, Inc., an Ohio corporation,
or any successor corporation.
"Employment" means regular employment with the Company or a
Subsidiary and does not include service as a director only.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Fair Market Value" shall be determined as follows:
(i) If the Common Shares are traded on a national
securities exchange at the time of grant of the Stock Option,
then the Fair Market Value shall be the average of the highest
and the lowest selling price on such exchange on the date such
Stock Option is granted or, if there were no sales on such
date, then on the next prior business day on which there was a
sale.
(ii) If the Common Shares are quoted on The Nasdaq Stock
Market at the time of the grant of the Stock Option, then the
Fair Market Value shall be the mean between the closing high bid
and low asked quotation with respect to a Common Share on such
date on The Nasdaq Stock Market.
(iii) If the Common Shares are not traded on a national
securities exchange or quoted on The Nasdaq Stock Market, then
the Fair Market Value shall be as determined by the Committee.
"Incentive Stock Option" means any Stock Option granted pursuant
to the provisions of Section 6 of this Plan that is intended to be and
is specifically designated as an "incentive stock option" within the
meaning of Section 422 of the Code.
"Non-Qualified Stock Option" means any Stock Option granted
pursuant to the provisions of Section 6 of this Plan that is not an
Incentive Stock Option.
"OTS" means the Office of Thrift Supervision, Department of the
Treasury.
"Participant" means an employee or director of the Company or a
Subsidiary who is granted an Award under this Plan. Notwithstanding
the foregoing, for the purposes of the granting of any Incentive Stock
Option under this Plan, the term "Participant" shall include only
employees of the Company or a Subsidiary.
"Plan" means the Industrial Bancorp, Inc. 1996 Stock Option and
Incentive Plan, as set forth herein and as it may be hereafter
amended from time to time.
"Stock Option" means an award to purchase Common Shares granted
pursuant to the provisions of Section 6 of this Plan.
"Subsidiary" means any corporation or entity in which the
Company directly or indirectly controls 50% or more of the total
voting power of all classes of its stock having voting power and
includes, without limitation, The Industrial Savings and Loan
Association.
"Terminated for Cause" means any removal of a director or
discharge of an employee for the personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful
violation of a material provision of any law, rule or regulation
(other than traffic violations or similar offenses), a material
violation of a final cease-and-desist order or any other action of a
director or employee which results in a substantial financial loss to
the Company or a Subsidiary.
Administration. This Plan shall be administered by the Committee to
be comprised of not less than three of the members of the Board who are not
employees of the Company. The members of the Committee shall be appointed
from time to time by the Board. Members of the Committee shall serve at the
pleasure of the Board, and the Board may from time to time remove members
from, or add members to, the Committee. A majority of the members of the
Committee shall constitute a quorum for the transaction of business. Action
approved in writing by a majority of the members of the Committee then
serving shall be fully as effective as if the action had been taken by
unanimous vote at a meeting duly called and held.
The Committee is authorized to construe and interpret this Plan and to
make all other determinations necessary or advisable for the administration
of this Plan. The Committee may designate persons other than members of the
Committee to carry out its responsibilities under such conditions and
limitations as it may prescribe. Any determination, decision or action of
the Committee in connection with the construction, interpretation,
administration, or application of this Plan shall be final, conclusive and
binding upon all persons participating in this Plan and any person validly
claiming under or through persons participating in this Plan. The Company
shall effect the granting of Stock Options under this Plan in accordance
with the determinations made by the Committee, by execution of instruments
in writing in such form as approved by the Committee.
Duration of, and Common Shares Subject to, this Plan.
Term. This Plan shall terminate on the date which is ten (10) years
from the date on which this Plan is adopted by the Board, except with
respect to Stock Options then outstanding. Notwithstanding the foregoing,
no Incentive Stock Option may be granted under this Plan after the date
which is ten (10) years from the date on which this Plan is adopted by the
Board or the date on which this Plan is approved by the shareholders of the
Company, whichever is earlier.
Common Shares Subject to Plan. The maximum number of Common Shares in
respect of which Stock Options may be granted under this Plan, subject to
adjustment as provided in Section 9 of this Plan, shall be ten percent of
the total Common Shares sold in connection with the conversion of The
Industrial Savings and Loan Association from mutual to stock form.
For the purpose of computing the total number of Common Shares
available for Stock Options under this Plan, there shall be counted against
the foregoing limitations the number of Common Shares subject to issuance
upon exercise or settlement of Stock Options as of the dates on which such
Stock Options are granted. If any Stock Options are forfeited, terminated
or exchanged for other Stock Options, or expire unexercised, the Common
Shares which were theretofore subject to such Stock Options shall again be
available for Stock Options under this Plan to the extent of such
forfeiture, termination or expiration of such Stock Options.
Common Shares which may be issued under this Plan may be either
authorized and unissued shares or issued shares which have been reacquired
by the Company. No fractional shares shall be issued under this Plan.
Eligibility and Grants. Persons eligible for Stock Options under this
Plan shall consist of directors and managerial and other key employees of
the Company or a Subsidiary who hold positions with significant
responsibilities or whose performance or potential contribution, in the
judgment of the Committee, will benefit the future success of the Company or
a Subsidiary. In selecting the directors and employees to whom Stock
Options will be awarded and the number of shares subject to such Stock
Options, the Committee shall consider the position, duties and
responsibilities of the eligible directors and employees, the value of their
services to the Company and the Subsidiaries and any other factors the
Committee may deem relevant.
Stock Options. Stock Options granted under this Plan may be in the
form of Incentive Stock Options or Non-Qualified Stock Options, and such
Stock Options shall be subject to the following terms and conditions as the
Committee shall deem desirable:
Grant. Stock Options may be granted under this Plan on terms and
conditions not inconsistent with the provisions of this Plan and in such
form as the Committee may from time to time approve and shall contain such
additional terms and conditions, not inconsistent with the express
provisions of this Plan; provided, however, that no more than 25% of the
shares subject to Stock Options may be awarded to any individual who is an
employee of the Company or a Subsidiary, no more than 5% of such shares may
be awarded to any director who is not an employee of the Company or a
Subsidiary and no more than 30% of such shares may be awarded to non-
employee directors in the aggregate.
Stock Option Price. The option exercise price per Common Share
purchasable under a Stock Option shall be determined by the Committee at the
time of grant; provided, however, that in no event shall the exercise price
of a Stock Option be less than 100% of the Fair Market Value of the Common
Shares on the date of the grant of such Stock Option. Notwithstanding the
foregoing, in the case of a Participant who owns Common Shares representing
more than 10% of the outstanding Common Shares at the time an Incentive
Stock Option is granted, the option exercise price shall in no event be less
than 110% of the Fair Market Value of the Common Shares at the time the
Incentive Stock Option is granted.
Stock Option Terms. Subject to the right of the Company to provide
for earlier termination in the event of any merger, acquisition or
consolidation involving the Company, the term of each Stock Option shall be
fixed by the Committee, except that the term of an Incentive Stock Option
will not exceed ten years after the date the Incentive Stock Option is
granted; provided, however, that in the case of a Participant who owns a
number of Common Shares representing more than 10% of the Common Shares
outstanding at the time an Incentive Stock Option is granted, the term of
such Incentive Stock Option shall not exceed five years.
Exercisability. Except as set forth in Section 6(f) and Section 7 of
this Plan, Stock Options awarded under this Plan shall become exercisable at
the rate of one-fifth per year commencing on the date that is one year after
the date of the grant of the Stock Option and shall be subject to such other
terms and conditions as shall be determined by the Committee at the date of
grant.
Method of Exercise. A Stock Option may be exercised, in whole or in
part, by giving written notice of exercise to the Company specifying the
number of Common Shares to be purchased. Such notice shall be accompanied
by payment in full of the purchase price in cash or, if acceptable to the
Committee in its sole discretion, in Common Shares already owned by the
Participant, or by surrendering outstanding Stock Options. The Committee
may also permit Participants, either on a selective or aggregate basis, to
simultaneously exercise Options and sell Common Shares thereby acquired,
pursuant to a brokerage or similar arrangement, approved in advance by the
Committee, and use the proceeds from such sale as payment of the purchase
price of such shares.
Special Rule for Incentive Stock Options. With respect to Incentive
Stock Options granted under this Plan, to the extent the aggregate Fair
Market Value (determined as of the date the Incentive Stock Option is
granted) of the number of shares with respect to which Incentive Stock
Options are exercisable under all plans of the Company or a Subsidiary for
the first time by a Participant during any calendar year exceeds $100,000,
or such other limit as may be required by the Code, such Stock Options shall
be Non-Qualified Stock Options to the extent of such excess.
Termination of Employment or Directorship. Except in the event of the
death or disability of a Participant, upon the resignation, removal or
retirement from the board of directors of any Participant who is a director
of the Company or a Subsidiary or upon the termination of Employment of a
Participant who is not a director of the Company or a Subsidiary, any Stock
Option which has not yet become exercisable shall thereupon terminate and be
of no further force or effect, and any Stock Option which has become
exercisable shall terminate if it is not exercised within 12 months of such
resignation, removal or retirement.
Unless the Committee shall specifically state otherwise at the time an
Option is granted, all Options granted under this Plan shall become
exercisable in full on the date of termination of a Participant's employment
or directorship with the Company or a Subsidiary because of his death or
disability, and, subject to extension by the Committee, all Options shall
terminate if not exercised within 12 months of the Participant's death or
disability.
In the event the Employment or the directorship of a Participant is
Terminated for Cause, any Option which has not been exercised shall
terminate as of the date of such termination for cause.
Non-transferability of Stock Options. No Stock Option under this
Plan, and no rights or interests therein, shall be assignable or
transferable by a Participant except by will or the laws of descent and
distribution. During the lifetime of a Participant, Stock Options are
exercisable only by, and payments in settlement of Stock Options will be
payable only to, the Participant or his or her legal representative.
Adjustments Upon Changes in Capitalization. The existence of this
Plan and the Stock Options granted hereunder shall not affect or restrict in
any way the right or power of the Board or the shareholders of the Company
to make or authorize any adjustment, recapitalization, reorganization or
other change in the Company's capital structure or its business, any merger,
acquisition or consolidation of the Company, any issuance of bonds,
debentures, preferred or prior preference stocks ahead of or affecting the
Company's capital stock or the rights thereof, the dissolution or
liquidation of the Company or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, including any
merger or acquisition which would result in the exchange of cash, stock of
another company or options to purchase the stock of another company for any
Stock Option outstanding at the time of such corporate transaction or which
would involve the termination of all Stock Options outstanding at the time
of such corporate transaction.
In the event of any change in capitalization affecting the Common
Shares of the Company, such as a stock dividend, stock split,
recapitalization, merger, consolidation, split-up, combination or exchange
of shares or other form of reorganization, or any other change affecting the
Common Shares, such proportionate adjustments, if any, as the Board in its
discretion may deem appropriate to reflect such change shall be made with
respect to the aggregate number of Common Shares for which Stock Options in
respect thereof may be granted under this Plan, the maximum number of Common
Shares which may be sold or awarded to any Participant, the number of Common
Shares covered by each outstanding Stock Option, and the exercise price per
share in respect of outstanding Stock Options.
The Committee may also make such adjustments in the number of shares
covered by, and the exercise price or other value of, any outstanding Stock
Options in the event of a spin-off or other distribution (other than normal
cash dividends) of Company assets to shareholders. In the event that
another corporation or business entity is being acquired by the Company, and
the Company agrees to assume outstanding employee stock options and/or the
obligation to make future grants of options or rights to employees of the
acquired entity, the aggregate number of Common Shares available for Stock
Options under Section 4 of this Plan may be increased accordingly.
Amendment and Termination of this Plan. Without further approval of
the shareholders, the Board may at any time terminate this Plan, or may
amend it from time to time in such respects as the Board may deem advisable,
except that the Board may not, without approval of the shareholders, make
any amendment which would (a) increase the aggregate number of Common Shares
which may be issued under this Plan (except for adjustments pursuant to
Section 9 of this Plan), (b) materially modify the requirements as to
eligibility for participation in this Plan, or (c) materially increase the
benefits accruing to Participants under this Plan. The above
notwithstanding, the Board may amend this Plan to take into account changes
in applicable securities, federal income tax and other applicable laws.
Modification of Options. The Board may authorize the Committee to
direct the execution of an instrument providing for the modification of any
outstanding Stock Option which the Board believes to be in the best
interests of the Company; provided, however, that no such modification,
extension or renewal shall reduce the exercise price or confer on the holder
of such Stock Option any right or benefit which could not be conferred on
him by the grant of a new Stock Option at such time and shall not materially
decrease the Participant's benefits under the Stock Option without the
consent of the holder of the Stock Option, except as otherwise permitted
under this Plan.
Miscellaneous.
Tax Withholding. The Company shall have the right to deduct from any
settlement, including the delivery or vesting of Common Shares, made under
this Plan any federal, state or local taxes of any kind required by law to
be withheld with respect to such payments or to take such other action as
may be necessary in the opinion of the Company to satisfy all obligation for
the payment of such taxes. If Common Shares are used to satisfy tax
withholding, such shares shall be valued based on the Fair Market Value when
the tax withholding is required to be made.
No Right to Employment. Neither the adoption of this Plan nor the
granting of any Stock Option shall confer upon any employee of the Company
or a Subsidiary any right to continued Employment with the Company or a
Subsidiary, as the case may be, nor shall it interfere in a any way with the
right of the Company or a Subsidiary to terminate the Employment of any of
its employees at any time, with or without cause.
Annulment of Stock Options. The grant of any Stock Option under this
Plan payable in cash is provisional until cash is paid in settlement
thereof. The grant of any Stock Option payable in Common Shares is
provisional until the Participant becomes entitled to the certificate in
settlement thereof. In the event the Employment or the directorship of a
Participant is Terminated for Cause, any Stock Option which is provisional
shall be annulled as of the date of such termination.
Other Company Benefit and Compensation Programs. Payments and other
benefits received by a Participant under a Stock Option made pursuant to
this Plan shall not be deemed a part of a Participant's regular, recurring
compensation for purposes of the termination indemnity or severance pay law
of any country and shall not be included in, nor have any effect on, the
determination of benefits under any other employee benefit plan or similar
arrangement provided by the Company or a Subsidiary unless expressly so
provided by such other plan or arrangement, or except where the Committee
expressly determines that a Stock Option or portion of a Stock Option should
be included to accurately reflect competitive compensation practices or to
recognize that a Stock Option has been made in lieu of a portion of
competitive annual cash compensation. Stock Options under this Plan may be
made in combination with or in tandem with, or as alternatives to, grants,
stock options or payments under any other plans of the Company or a
Subsidiary. This Plan notwithstanding, the Company or any Subsidiary may
adopt such other compensation programs and additional compensation
arrangements as it deems necessary to attract, retain and reward directors
and employees for their service with the Company and its Subsidiaries.
Securities Law Restrictions. No Common Shares shall be issued under
this Plan unless counsel for the Company shall be satisfied that such
issuance will be in compliance with applicable federal and state securities
laws. Certificates for Common Shares delivered under this Plan may be
subject to such stock-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange
upon which the Common Shares are then listed, and any applicable federal or
state securities law. The Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
Stock Option Agreement. Each Participant receiving a Stock Option
under this Plan shall enter into an agreement with the Company in a form
specified by the Committee agreeing to the terms and conditions of the Stock
Option and such related matters as the Committee shall, in its sole
discretion, determine.
Cost of Plan. The costs and expenses of administering this Plan shall
be borne by the Company.
Governing Law. This Plan and all actions taken hereunder shall be
governed by and construed in accordance with the laws of the State of Ohio,
except to the extent that federal law shall be deemed applicable.
Effective Date. This Plan shall be effective upon the later of
adoption by the Board and approval by the Company's shareholders. This Plan
shall be submitted to the shareholders of the Company for approval at an
annual or special meeting of shareholders to be held no sooner than six
months after the effective date of the conversion of The Industrial Savings
and Loan Association from mutual to stock form.
Exhibit 23(a)
EXHIBIT 5
(513) 723-4000
January 21, 1998
Board of Directors
Industrial Bancorp, Inc.
211 N. Sandusky Street
Bellevue, Ohio 44180
Gentlemen:
We have acted as counsel for Industrial Bancorp, Inc. (the "Company"),
in connection with the proposed issuance and sale of the common shares of
the Company, no par value (the "Common Shares"), upon the exercise of
options granted to purchase such Common Shares pursuant to the Industrial
Bancorp, Inc. 1996 Stock Option and Incentive Plan (the "Plan"), as
described in the Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission on or about January 23, 1998 (the
"Registration Statement"), for the purpose of registering 555,450 Common
Shares reserved for issuance under the Plan pursuant to the provisions of
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
In connection with this opinion, we have examined and have relied upon
the accuracy of, without independent verification or investigation, the
following: (a) the Plan; (b) the Registration Statement; (c) minutes of the
meeting of the Stock Option and Incentive Plan Committee of the Company,
dated March 6, 1996; and (d) such other documents as we have deemed
relevant.
In our examinations, we have assumed the genuineness of all
signatures, the conformity to original documents of all documents submitted
to us as copies and the authenticity of such originals of such latter
documents. We have also assumed the due preparation of share certificates
and compliance with applicable federal and state securities laws.
Based solely upon and subject to the foregoing and the further
qualifications and limitations set forth below, as of the date hereof, we
are of the opinion that after the Common Shares have been issued by the
Company upon the exercise of the options and payment therefor in full in the
manner provided in the Plan and in the Registration Statement, such Common
Shares will be validly issued, fully paid and non-assessable.
This opinion is limited to the federal laws of the United States and
to the laws of the State of Ohio having effect as of the date hereof. This
opinion is furnished by us solely for the benefit of the Company in
connection with the offering of the Common Shares and the filing of the
Registration Statement and any amendments thereto. This opinion may not be
relied upon by any other person or assigned, quoted or otherwise used
without our specific written consent.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us in the Registration
Statement.
Very truly yours,
VORYS, SATER, SEYMOUR AND PEASE LLP
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Industrial Bancorp, Inc. (the "Company") of our
report dated January 15, 1997, appearing in the Company's Annual Report on
Form 10-K for the year ended December 31, 1996.
CROWE, CHIZEK AND COMPANY LLP
January 19, 1998
Cleveland, Ohio
