UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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)
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(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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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.
Not Applicable.
None.
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 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:
(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.
(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 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.
Not applicable.
See the Exhibit Index attached hereto.
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
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.
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
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William J. Small, President
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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
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/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
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Don C. Van Brackel
/s/ Peter A. Diehl Director August 31, 2000
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Peter A. Diehl
Director __________, 2000
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Gerald W. Monnin
/s/ Marvin J. Ludwig, Ph.D. Director August 31, 2000
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Marvin J. Ludwig, Ph.D.
Director __________, 2000
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John U. Fauster, III, D.D.S.
/s/ Stephen L. Boomer Director August 31, 2000
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Stephen L. Boomer
Director __________, 2000
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Douglas A. Burger, D.V.M.
Director __________, 2000
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Thomas A. Voigt
/s/ John C. Wahl Executive Vice President, August 31, 2000
---------------------------------------- Chief Financial Officer
John C. Wahl and Treasurer
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EXHIBIT INDEX
Exhibit No. Description Location
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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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FIRST DEFIANCE FINANCIAL CORP. EMPLOYEE INVESTMENT PLAN
Effective September 1, 2000
PURPOSE
The purpose of the First Defiance Financial Corp. Employee Investment Plan (the "Plan") is to make available to eligible employees of First Defiance Financial Corp. (the "Corporation") and its subsidiaries (the Corporation and each such subsidiary company are hereinafter referred to as "Employer") (employees of the Corporation and each such subsidiary company are hereinafter sometimes referred to as the "Employees") a means of purchasing common shares of the Corporation at market prices current at the time of purchase through regular payroll deductions. As an added incentive, the Employer will contribute an amount equal to 15% of each of the participating Employee's actual payroll deductions up to $150 per month in accordance with the terms and conditions set forth below. See "Enrollment in Plan" and "Contributions by Employer."
Participation in the Plan is entirely voluntary, and the Corporation makes no recommendations to Employees as to whether they should or should not participate.
ELIGIBILITY
All permanent full-time and permanent part-time Employees of the Employer who have attained the age of 18 and have been employed by the Employer for at least six months are eligible to participate in the Plan at their election. Notwithstanding the foregoing, if any Employee otherwise eligible to participate in the Plan is employed in any state of the United States where it is not legal for the Employer to make deductions from his or her pay as hereinafter provided, such Employee shall not be eligible to participate.
ENROLLMENT IN THE PLAN
An eligible Employee, at his/her election, may enroll as a participant by
(i) filling in and signing a form of payroll deduction authorization and (ii)
filling in and signing an enrollment form for the purchase for the account of
such Employee of common shares of the Corporation. Appropriate forms for the
foregoing purposes may be obtained from the human resources department at each
subsidiary and the Corporation. Enrollment shall become effective as soon as
practicable after the authorization for payroll deduction and the enrollment
form are received by the Corporation.
Enrollment in the Plan by an eligible Employee will terminate upon any of the following: (i) the filing of a notice of termination or revision of enrollment by such Employee, (ii) termination of employment, or (iii) termination of the Plan by the Corporation (see "Amendment or Termination" below).
CONTRIBUTIONS BY EMPLOYER
The Employer will contribute an amount equal to 15% of the authorized payroll deductions of an eligible participating Employee, subject to a limit of $150 per month, toward the purchase of common shares of the Corporation during the period such Employee is enrolled in the Plan.
OPERATION OF THE PLAN
The Corporation has designated Registrar and Transfer Company with its principal office located at 10 Commerce Drive, Cranford, New Jersey 07016, as Plan Manager (the "Plan Manager") to open and maintain accounts in the names of participating Employees and to make purchases of common shares of the Corporation on the open market through brokers for the accounts of participating Employees. Nothing herein shall restrict the substitution by the Corporation in its discretion of a firm other than Registrar and Transfer Company as Plan Manager under the Plan, or the right of Registrar and Transfer Company to terminate its services as Plan Manager.
The Corporation shall pay (i) the Plan Manager's administrative charges for opening and maintaining such accounts; (ii) the commissions on purchases made from amounts deducted from the pay of Employees who have opened accounts and from amounts contributed by the Employer and (iii) the commissions and other charges in connection with the reinvestment of dividends. The broker's commission and other charges in connection with sales or purchases not made by payroll deductions or by Employer contributions will be borne by the Employee who orders the transactions for his/her account.
The Employer deducts funds from each participating Employee's pay as authorized and, once a month, forwards the total of amounts deducted for all participating Employees, together with the Employer's contribution, to the Plan Manager at its office at 10 Commerce Drive, Cranford, New Jersey 07016, accompanied by a list of participating Employees and the amount allocable to the account of each participating Employees. Where funds have been deducted for a participating Employee before a form of notice of termination or revision is received by the Corporation, such funds, together with the applicable Employer contributions, will be forwarded to the Plan Manager in accordance with the procedures specified hereinabove, and the notice of termination or revision shall be effective only as to deductions made subsequent to receipt of notice by the Corporation.
For ease of administration, all such funds are forwarded to the Plan Manager through and by the Corporation which may or may not advance payroll deductions and/or Employer contributions on behalf of subsidiaries before such funds have been transmitted to the Corporation by all subsidiaries. In any case, the Corporation is reimbursed for any such advances or payments directly or indirectly under arrangements between it and its subsidiaries who have participants in the Plan.
When the funds are received from the Corporation, the Plan Manager promptly purchases on the open market as many full shares as the aggregate funds will allow. The number of shares purchased depends upon the market price of the Corporation's common shares at the time such purchases are made. Purchases are allocated by the Plan Manager at the average cost thereof to the accounts established in proportion to the respective amount
received for each Employee's account. Allocation is made in full shares and in fractional interests in shares to the ten-thousandths of a share.
PAYROLL DEDUCTIONS
Payroll deductions remain effective until terminated by a participant. The Employee specifies therein the amount to be withheld from his/her pay with a minimum of $50 per month and a maximum of $5,000 per month, and the deduction amount must be in even dollar amounts. However, as stated in the section above entitled "Contributions by Employer," the maximum amount the Employer will contribute is $150 per month.
The payroll deduction may be revised or terminated at any time by the Employee's written request to the Corporation through the human resources department of the respective subsidiary or the Corporation.
PARTICIPANT'S ACCOUNT WITH THE PLAN MANAGER
At the time of purchase of shares by the Plan Manager pursuant to the Plan, each Employee for whose account funds were received immediately acquires full ownership of all shares and may sell, assign, hypothecate, or otherwise deal with such shares in the same manner as any other shares of the Corporation he/she may own. Unless otherwise requested by the Employee, all shares are registered in the name of the Plan Manager (or the Plan Manager's nominee) and remain so registered until delivery is requested. The Employee may request that a certificate for any or all of his/her full shares be delivered to him/her at any time subject to such fees as may be imposed by the Plan Manager. As of August 1, 2000, that fee was $20.00 per certificate.
An Employee who has an account may add other shares of the Corporation's common shares to his/her account at any time by separate purchases arranged with the Plan Manager or by delivering other shares owned by such Employee to the Plan Manager. When any such purchases are made, the Employee is charged with the commissions.
The Employee's account is credited with all dividends paid in respect to the full shares and any fractional interest in shares held in his/her account. Cash dividends are reinvested in the Corporation's common shares as promptly as practicable following receipt thereof by the Plan Manager. Brokerage commissions on the reinvestment of dividends are payable by the Employer.
Stock dividends and/or any stock splits in respect of shares held in the Employee's account are credited to the account without charge. Distribution of other securities and rights to subscribe are sold and the proceeds are handled in the same manner as a cash dividend.
The Employee may instruct the Plan Manager at any time to sell any or all of his/her full shares and the fractional interest in shares held in his/her account. Upon such sale, the Plan Manager will mail the employee a check for the proceeds less the brokerage commission and any transfer taxes, registration fee or other normal charges which are payable by the Employee.
Each Employee receives a periodic statement from the Plan Manager describing activity in the account during the preceding quarter.
The Corporation will deliver or will cause the Plan Manager to deliver to each Employee as promptly as practicable, by mail or otherwise, all notices of meetings, proxy statements, and other material distributed by the Corporation to its stockholders. The full shares of stock in each Employee's account are voted in accordance with the Employee's signed proxy instructions duly delivered to the Plan Manager. There is no charge to the Employees for the Plan Manager's retention or delivery of stock certificates or in connection with notices, proxies, or other such material.
CLOSING PARTICIPANT'S ACCOUNT
An Employee who terminates his payroll deduction authorization may request the Plan Manager to maintain or close his/her account. He/She may direct that all full shares and any fractional interest in shares in his/her account be sold and the net proceeds remitted to him/her or may request that the full shares in the account be delivered to him/her along with a check representing the net proceeds of the sale of the fractional interest in the shares.
AMENDMENT OR TERMINATION
The Corporation reserves the right to discontinue the use of its payroll deduction facilities for this purpose at any time such action is deemed advisable in its judgment, and it also has the right to amend, suspend, or discontinue the Plan at any time. Any such amendment or termination will not result in the forfeiture of any funds deducted from the salary of any participant or contribution by the Employer on behalf of any participant, or of any shares or fractional interest in shares purchased for the participant or any dividends or other distribution in respect of such shares effective before the effective date of amendment or termination of the Plan. The Plan is not subject to the provisions of the Employer Retirement Income Security Act of 1974.
FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN
The Employer's contribution is treated as "earned income" to the Employee under present U.S. tax law, and the Employer withholds federal income taxes (and state and local taxes, where applicable) upon the basis of each participating Employee's actual salary plus the Employer's contribution under the Plan. Commissions paid by the Employer are also treated as "earned income" to the participating Employee. The Plan is not qualified pursuant to Section 401(a) of the Internal Revenue Code. Dividends on all shares purchased under the Plan also are subject to income taxes, but such taxes are not withheld by the Corporation. Dividends will be reported on the Employee's Form 1O99-DIV. For purposes of determining taxable gain or loss on sales of shares purchased under the Plan, the cost of such shares is the purchase price of such shares, including the portion of the purchase price contributed by the Employer.
There is no guarantee under the Plan against loss because of fluctuations in the market price of the common shares of the Corporation. In seeking the benefits of share ownership, each investor also must accept the risks.
RESTRICTIONS ON RESALE
This Prospectus is not available for the resale of shares acquired hereunder by persons who may be deemed to be "affiliates" within the definition thereof set forth in Rule 405 of the Securities and Exchange Commission ("SEC"). Rule 405, in effect, defines "affiliates" as persons who "directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with" the Corporation. Ordinarily, this concept only extends to persons who are executive officers, directors, or substantial stockholders (5% or more) of a corporation.
Nonaffiliates may freely resell to the public any shares acquired hereunder. Affiliates, however, may only resell pursuant to a separate registration statement and prospectus (which the Corporation has no intention of filing) or, assuming the availability thereof, pursuant to SEC Rule 144. Rule 144 contains a number of conditions to its use including a requirement that the Corporation has filed all reports required by the Securities Exchange Act of 1934, a limitation on the number of shares which may be sold in any given period of time, and a requirement that a form (Form 144) be filed at the time an order to sell is placed. In addition, executive officers of the Corporation must file a Form 4 (or Form 5 at the end of the year) with the Securities and Exchange Commission and Nasdaq when sales of the Corporation's common shares are made.
LEGAL OPINION
Legal matters in connection with the offering are being passed on by Vorys, Sater, Seymour and Pease LLP.
EXHIBIT 5
Opinion of Counsel
August 31, 2000
Board of Directors
First Defiance Financial Corp.
601 Clinton Street
Defiance, Ohio 43512
Gentlemen:
We have acted as counsel for First Defiance Financial Corp., an Ohio corporation (the "Company"), in connection with the registration of the common shares of the Company, without par value (the "Common Shares"), pursuant to the First Defiance Financial Corp. Employee Investment 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 September 1, 2000 (the "Registration Statement"), for the purpose of registering 50,000 Common Shares.
In connection with this opinion, we have examined an original or copy of, and have relied upon the accuracy of, without independent verification or investigation, (a) the Registration Statement; (b) the Company's Articles of Incorporation, as amended through the date hereof, (c) the Code of Regulations of the Company, as amended through the date hereof ; (d) the minutes of the meeting of the Board of Directors of the Company dated August 21, 2000; and (e) 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 (i) the Plan was adopted by the Board of the Company on August 21, 2000; and (ii) the 50,000 Common Shares in the Registration Statement 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 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 aforementioned Registration Statement and to the reference to us in the Registration Statement.
Very truly yours,
/s/ VORYS, SATER, SEYMOUR AND PEASE LLP --------------------------------------- VORYS, SATER, SEYMOUR AND PEASE LLP |
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the First Defiance Financial Corp. Employee Investment Plan, of our report dated January 21, 2000 with respect to the consolidated financial statements of First Defiance Financial Corp. included in its Annual Report (Form 10-K) for the year ended December 31, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP Cleveland, Ohio August 31, 2000 |