As filed with the Securities and Exchange Commission on October 13, 1996
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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ASB FINANCIAL CORP.
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(Exact name of registrant as specified in its Articles)
Ohio 31-1429488
- --------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
503 Chillicothe Street, Portsmouth, Ohio 45662
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(Address of Principal Executive Offices) (Zip Code)
ASB Financial Corp. 1995 Stock Option and Incentive Plan
----------------------------------
(Full title of the plan)
Gerald R. Jenkins
ASB Financial Corp.
503 Chillicothe Street
Portsmouth, Ohio 45662
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(Name and address of agent for service)
(614) 354-3177
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(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of Amount to be offering price aggregate Amount of
securities registered per share(*) offering registration fee
to be registered price(*)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares 171,396 $ * $2,413,476 $483
No par value
</TABLE>
*Of the 171,396 shares being registered, 145,684 may be purchased for $13.875
per share upon the exercise of options already granted. The offering price of
the remaining 25,712 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. ss.230.457(c) for "last sale reported over-the-counter
securities" to be $15.25 per share on November 7, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1996, and all documents filed with the Securities and Exchange
Commission (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 contained in the
Registrant's Prospectus dated March 15, 1995, and incorporated by reference
into the Registrant's Registration Statement on Form 8-A (No. 0-25906) filed
with the Commission on April 18, 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, 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, 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
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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 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, 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 divisions (E)(1) and (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, or agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in divisions (E)(1) and (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;
(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; or
(d) By the court of common pleas or the court in which such
action, suit, or proceeding 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 divisions
(E)(1) and (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 divisions (E)(1) and (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:
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<PAGE>
(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, or agent in defending any
action, suit, or proceeding referred to in divisions (E)(1) and (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, 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 of 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 a director, trustee, officer, employee, 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, or agent of another corporation, domestic or foreign,
nonprofit or 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 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
divisions (E)(1) and (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, 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, or agent of another corporation, domestic or
foreign, nonprofit or for profit, 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 regulations governs indemnification
by Registrant and provides 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
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<PAGE>
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
the 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 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 Scioto County, Ohio
or the court in which such action or suit was brought shall determine
upon application that, despite such adjudication or 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 Articles, 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
any attorney, who has been retained by or who has performed legal
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 Scioto 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
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person shall have the right to petition the Court of Common Pleas of
Scioto 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 Scioto 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 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 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 Five 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 any employee benefit plan; and
references to "serving at the request of the corporation" shall include
any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit 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 any 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 Scioto County, Ohio. The corporation and (by
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<PAGE>
claiming such indemnification) each such person consent to the exercise
of jurisdiction over its or his person by the Court of Common Pleas of
Muskingum County, Ohio in any such action, suit or proceeding.
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 it offers or sells
securities, a post-effective amendment to this registration
statement to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a fundamental
change in the information in the registration statement;
and notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in the 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) Include any material information with respect
to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement.
provided, however, that paragraphs A(1)(i) and A(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in this
registration statement.
(2) For determining liability under the Securities Act of
1933, to treat each post-effective amendment as a new
registration statement of the securities offered, and the
offering of the securities at that time to be the initial bona
fide offering; and
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the
end of the offering.
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SIGNATURES
THE REGISTRANT. 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 Portsmouth, State of Ohio, on
September 30, 1996.
ASB FINANCIAL CORP.
By: Gerald R. Jenkins
______________________________________
Gerald R. Jenkins
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
- --------- ------- ------
William J. Burke Director September 23, 1996
__________________________
William J. Burke
Lee O. Fitch Director September 23, 1996
___________________________
Lee O. Fitch
Gerald R. Jenkins Director and President September 23, 1996
___________________________ (Principal Executive Officer)
Gerald R. Jenkins
Victor W. Morgan Director September 23, 1996
___________________________
Victor W. Morgan
Louis M. Schoettle Director September 23, 1996
___________________________
Louis M. Schoettle, M.D.
Robert M. Smith Director and Vice President September 23, 1996
___________________________ (Principal Financial Officer and
Robert M. Smith Principal Accounting Officer)
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EXHIBIT INDEX
Exhibit No. Exhibit
- ----------- -------
4 ASB Financial Corp. 1995 Stock Option and
Incentive Plan.
5 Opinion of Vorys, Sater, Seymour and Pease
as to legality of securities.
23(a) Consent of Grant Thornton LLP.
23(b) Consent of Vorys, Sater, Seymour and Pease.
Included in Exhibit 5
11-9
ASB FINANCIAL CORP.
1995 STOCK OPTION AND INCENTIVE PLAN
1. Purpose. The purpose of the ASB Financial Corp. 1995 Stock Option and
Incentive Plan (this "Plan") is to promote and advance the interests of ASB
Financial Corp. (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.
2. Definitions. For purposes of this Plan, the following terms shall have
the meanings set forth below:
(a) "Award" or "Awards" means an award or grant made to a
Participant under Section 6 of this Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended, or
any successor thereto, together with rules, regulations and
interpretations promulgated thereunder.
(d) "Committee" means the Committee of the Board constituted as
provided in Section 3 of this Plan.
(e) "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.
(f) "Company" means ASB Financial Corp., an Ohio corporation, or any
successor corporation.
(g) "Employment" means regular employment with the Company or a
Subsidiary and does not include service as a director only.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
(i) "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 not listed on a national
securities exchange 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.
(j) "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.
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<PAGE>
(k) "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.
(l) "OTS" means the Office of Thrift Supervision, Department of the
Treasury.
(m) "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.
(n) "Plan" means the ASB Financial Corp. 1995 Stock Option and
Incentive Plan, as set forth herein and as it may be hereafter amended
from time to time.
(o) "Stock Option" means an Award to purchase Common Shares granted
pursuant to the provisions of Section 6 of this Plan.
(p) "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, American Savings Bank, fsb.
(q) "Terminated for Cause" has the meaning set forth in Section
12(c) of this Plan.
3. Administration.
(a) 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, to 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 the
unanimous consent 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.
(b) The Committee is authorized to construe and interpret this Plan;
to promulgate, amend and rescind rules and regulations relating to the
implementation of 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 Awards 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.
4. Duration of, and Common Shares Subject to, this Plan.
(a) 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 Awards 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.
(b) COMMON SHARES SUBJECT TO PLAN. The maximum number of Common
Shares in respect of which Awards may be granted under this Plan, subject
to adjustment as provided in Section 9 of this Plan, shall be ten percent
(10%) of the total Common Shares sold in connection with the conversion
of American Savings Bank, fsb (formerly known as American Savings
Association) from mutual to stock form. In addition, no more than 25% of
the shares subject to Awards may be awarded to any individual, no more
than 5% of such shares may be awarded to any non-employee director and no
more than 30% of such shares may be awarded to non-employee directors in
the aggregate.
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For the purpose of computing the total number of Common Shares available
for Awards under this Plan, there shall be counted against the foregoing
limitations the number of Common Shares subject to issuance upon exercise or
settlement of Awards as of the dates on which such Awards are granted. If any
Awards are forfeited, terminated, expire unexercised, or exchanged for other
Awards, the Common Shares which were theretofore subject to such Awards shall
again be available for Awards under this Plan to the extent of such forfeiture
or expiration of such Awards.
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.
5. Eligibility and Grants. Persons eligible for Awards 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.
6. 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 and shall
contain such additional terms and conditions, not inconsistent with the
express provisions of this Plan, as the Committee shall deem desirable:
(a) 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.
(b) 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 one hundred percent (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 ten percent (10%) of the
outstanding Common Shares at the time the Incentive Stock Option is
granted, the option exercise price shall in no event be less than one
hundred and ten percent (110%) of the Fair Market Value of the Common
Shares at the time the Incentive Stock Option is granted.
(c) 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 Incentive Stock
Options will not exceed ten (10) 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 ten percent
(10%) of the Common Shares outstanding at the time the Incentive Stock
Option is granted, the term of the Incentive Stock Option shall not
exceed five (5) years.
(d) EXERCISABILITY. Except as set forth in Section 6(f) of this
Plan, Stock Options awarded under this Plan shall become exercisable at
the rate of one-fifth of the Award per year commencing on the date that
is one year after the date of the grant of the Award and shall be subject
to such other terms and conditions as shall be determined by the
Committee at the date of grant.
(e) 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 Awards.
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.
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<PAGE>
(f) SPECIAL RULE FOR INCENTIVE STOCK OPTIONS. With respect to 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 One Hundred
Thousand Dollars ($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.
7. Termination of Employment or Directorship. Except in the event of the
death or disability of a Participant, upon the resignation, removal of
retirement from the Board of Directors of any Participant who is a director of
the Company or any Subsidiary or upon the termination of Employment of a
Participant who is not a director of the Company or any Subsidiary, any option
which has not yet become exercisable shall thereupon terminate and be of no
further force or effect.
8. Non-transferability of Awards. No Award 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 Awards will be payable only to, the Participant or his or her
legal representative.
9. Adjustments Upon Changes in Capitalization.
(a) The existence of this Plan and the Awards 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.
(b) 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 Awards 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
Award, and the price per share in respect of outstanding Awards.
(c) The Committee may also make such adjustments in the number of
shares covered by, and the price or other value of, any outstanding
Awards 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 Awards under Section 4 of this Plan may be increased
accordingly.
10. 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.
11. 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
II-13
<PAGE>
renewal shall 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.
12. Miscellaneous.
(a) 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.
(b) NO RIGHT TO EMPLOYMENT. Neither the adoption of this Plan nor
the granting of any Award shall confer upon any employee of the Company
or a Subsidiary any right to continued employment with the Company or any
Subsidiary, as the case may be, nor shall it interfere in 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.
(c) ANNULMENT OF AWARDS. The grant of any Award under this Plan
payable in cash is provisional until cash is paid in settlement thereof.
The grant of any Award 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 (hereinafter defined), any Award which is
provisional shall be annulled as of the date of such termination for
cause. For the purpose of this Section 12(c), the term "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 profits, 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.
(d) OTHER COMPANY BENEFIT AND COMPENSATION PROGRAMS. Payments and
other benefits received by a Participant under an Award 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
arrangements, or except where the Committee expressly determines that an
Award or portion of an Award should be included to accurately reflect
competitive compensation practices or to recognize that an Award has been
made in lieu of a portion of competitive annual cash compensation. Awards
under this Plan may be made in combination with or in tandem with, or as
alternatives to, grants, awards or payments under any other Company or
Subsidiary plans. 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.
(e) 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.
(f) AWARD AGREEMENT. Each Participant receiving an Award 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 Award and
such related matters as the Committee shall, in its sole discretion,
determine.
(g) COST OF PLAN. The costs and expenses of administering this Plan
shall be borne by the Company.
(h) 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.
II-14
<PAGE>
(i) EFFECTIVE DATE. This Plan shall be effective upon the later of
adoption by the Board and approval by the Company's shareholders.
II-15
(513) 723-4000
November 12, 1996
Board of Directors
ASB Financial Corp.
503 Chillicothe Street
Portsmouth, Ohio 45662
Gentlemen:
We have acted as special counsel for ASB Financial Corp.(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 ASB Financial Corp.
1996 Stock Option and Incentive Plan (the "Plan") as described in the
Registration Statements on Form S-8 to be filed with the Securities and
Exchange Commission on or about November 12, 1996 (the "Registration
Statements"), for the purpose of registering 171,396 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 an original or copy of,
and have relied upon the accuracy of, without independent verification(a) the
Registration Statement; (b) the Company's Articles of Incorporation, as
amended and as certified by the Secretary of State of Ohio on November 12,
1996; (c) the Code of Regulations of the Company as certified by the President
and the Treasurer of the Company on November 12, 1996; (d) the Certificate of
Inspector of Election for the meeting of the shareholders of the Company held
on November 15, 1995; (e) the minutes of the meeting of the Board of Directors
of the Company dated November 15, 1995; (f) the minutes of the meeting of the
Board of Directors of the Company dated September 23, 1996; (g) a Certificate
of Good Standing with respect to the Company issued by the Secretary of State
of Ohio dated November 12, 1996 (h) a Certificate of the President and
Treasurer of the Company dated November 12, 1996; and (i) such other
representations of the Company and its officers 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 shall have been issued by the
Company upon the exercise of the options and payment therefor in full in the
manner provided in the Plans and in the Registration Statements (when they
become effective), such Common Shares issued upon the exercise of such options
will be validly issued, fully paid and non-assessable.
II-16
<PAGE>
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
Statements 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
aforementioned Registration Statement and to the reference to us in the
Registration Statement.
Very truly yours,
VORYS, SATER, SEYMOUR AND PEASE
II-17
ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
ASB Financial Corp. on Form S-8, of our report dated July 12, 1996 (except for
Note J, as to which the date is August 20, 1996), accompanying the
consolidated financial statements of ASB Financial Corp. for the year ended
June 30, 1996.
Grant Thornton LLP
Cincinnati, Ohio
November 12, 1996
