UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
First Defiance Financial Corp.
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(Exact name of registrant as specified in its Charter)
Ohio 34-1803915
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
601 Clinton Street
Defiance, Ohio 43512
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(Address of Principal Executive Offices) (Zip Code)
First Defiance Financial Corp.
Employee Investment Plan
------------------------
(Full title of the plan)
William J. Small, President
First Defiance Financial Corp.
601 Clinton Street
Defiance, Ohio 43512
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(Name and address of agent for service)
(419) 782-5015
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price Aggregate offering registration
be registered (1) Registered (2) per share (3) price (3) fee
------------------ --------------- ----------------- -------------------- -------------
<S> <C> <C> <C> <C>
Common Shares, 50,000 $8.94 $447,000 $118.00
without par value
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(2) The number of Common Shares registered hereunder shall be deemed to include
any additional shares issuable as a result of any stock split, stock
dividend or other change in the capitalization of the Registrant.
(3) Pursuant to Rule 457(h), the registration fee is based on the average of
the bid and asked price as of August 30, 2000.
<PAGE>
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, 1999, filed with the Securities and Exchange Commission (the
Commission) on March 27, 2000, the Registrant's Quarterly Report on Form 10-Q
for the quarters ended March 31, 2000 and June 30, 2000 filed with the
Commission on May 15, 2000 and August 14, 2000, respectively, 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 August 14,
2000, are hereby incorporated by reference.
The description of the Registrant's common stock contained in Registrant's
Registration Statement on Form S-1 (File No. 33-93354), filed with the
Commission on June 9, 1995, is hereby incorporated by reference.
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.
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None.
ITEM 6. Indemnification of Directors and Officers.
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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
<PAGE>
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 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:
<PAGE>
(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:
(i) Repay such amount if it is proved by
clear and convincing evidence in a court of c ompetent
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.
<PAGE>
(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.
<PAGE>
B. Article VII of the Registrant's Articles of Incorporation governs
indemnification by the Registrant and provides as follows:
The Corporation shall 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, including actions by or in the right
of the Corporation, by reason of the fact that such person is or was a
director, officer, employee, or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee,
officer, employee, member, manager, or agent of another corporation, 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 such person in connection with such action, suit, or
proceeding to the full extent permissible under Ohio law.
ITEM 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
ITEM 8. Exhibits.
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See the Exhibit Index attached hereto.
ITEM 9. Undertakings.
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A. Registrant hereby undertakes:
(1) To file, during any period in which it offers or
sells securities, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
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 a
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent
<PAGE>
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.
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.
C. Insofar as indemnification for liabilities arising under the
Act, as amended may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
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 Defiance, State of Ohio, on August 31, 2000.
FIRST DEFIANCE FINANCIAL CORP.
By: /s/ William J. Small
-------------------------------------
William J. Small, 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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ William J. Small Director, Chairman, August 31, 2000
---------------------------------------- President and Chief
William J. Small Executive Officer
/s/ Don C. Van Brackel Director and Vice Chairman August 31, 2000
----------------------------------------
Don C. Van Brackel
/s/ Peter A. Diehl Director August 31, 2000
---------------------------------------
Peter A. Diehl
Director __________, 2000
----------------------------------------
Gerald W. Monnin
/s/ Marvin J. Ludwig, Ph.D. Director August 31, 2000
----------------------------------------
Marvin J. Ludwig, Ph.D.
Director __________, 2000
----------------------------------------
John U. Fauster, III, D.D.S.
/s/ Stephen L. Boomer Director August 31, 2000
----------------------------------------
Stephen L. Boomer
Director __________, 2000
----------------------------------------
Douglas A. Burger, D.V.M.
Director __________, 2000
----------------------------------------
Thomas A. Voigt
/s/ John C. Wahl Executive Vice President, August 31, 2000
---------------------------------------- Chief Financial Officer
John C. Wahl and Treasurer
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Location
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<S> <C> <C>
4.1 First Defiance Financial Corp. Included herewith.
Employee Investment Plan
4.2 Articles of Incorporation Incorporated herein by reference to Exhibit
3.1 in the Registrant's Form S-1 (File No.
33-93354).
4.3 Code of Regulations Incorporated herein by reference to Exhibit
3.2 in the Registrant's Form S-1 (File No.
33-93354)
5 Opinion of Vorys, Sater, Seymour and Included herewith.
Pease LLP as to legality
23.1 Consent of Ernst & Young Included herewith.
23.2 Consent of Vorys, Sater, Seymour and Included herewith in Exhibit 5.
Pease LLP
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