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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.
(Exact name of registrant as specified in its Charter)
Ohio 34-1803915
--------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
601 Clinton Street
Defiance, Ohio 43512
---------------------------------------- ------------------------------------
(Address of Principal Executive Offices) (Zip Code)
First Defiance Financial Corp.
2005 Stock Option and Incentive Plan
------------------------------------
(Full title of the plan)
William J. Small, President
First Defiance Financial Corp.
601 Clinton Street
Defiance, Ohio 43512
---------------------------------------
(Name and address of agent for service)
(419) 782-5015
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price Aggregate offering registration
be registered Registered per share price fee
--------------------------------------------------------------------------------
Common Shares, 351,000 $* $10,407,150* $1,224.92
$.01 par value
* The offering price of the 351,000 shares, which have been reserved for the
future grant of options, has been determined for the purposes of calculating the
registration fee pursuant to 17 C.F.R. ss.230.457(h) to be $29.65 per share as
of July 27, 2005.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
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, 2004, filed with the Securities and Exchange Commission (the
Commission) on March 16, 2005, and all other 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 December 31, 2004, 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 and 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
-2-
corporation, by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or
is or was serving at the request of the corporation as a
director, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, against expenses,
including attorney's fees, judgments, fines, and amounts paid
in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, if he had
no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment,
order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any
criminal action or proceeding, he had reasonable cause to
believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any person
who was or is a party, or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in
the right of the corporation to procure a judgment in its
favor, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for
profit, a limited liability company, or a partnership, joint
venture, trust, or other enterprise, against expenses,
including attorney's fees, actually and reasonably incurred by
him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification
shall be made in respect of any of the following:
(a) Any claim, issue, or matter as to which such person
is adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation
unless, and only to the extent that, the court of
common pleas or the court in which such action or
suit was brought determines, upon application, that,
despite the adjudication of liability, but in view of
all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other
court shall deem proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to section
1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding
referred to in division (E)(1) or (2) of this section, or in
defense of any claim, issue, or matter therein, he shall be
indemnified against expenses, including attorney's fees,
actually and reasonably incurred by him in connection with the
action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the
corporation only as authorized in the specific case, upon a
determination that indemnification of the director, trustee,
officer, employee, member, manager, or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in division (E)(1) or (2) of this section.
-3-
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 the
action, suit, or proceeding referred to in division
(E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a
written opinion by independent legal counsel other
than an attorney, or a firm having associated with it
an attorney, who has been retained by or who has
performed services for the corporation or any person
to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which
the action, suit, or proceeding referred to in
division (E)(1) or (2) of this section was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of
this section shall be promptly communicated to the person who
threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such determination.
(5) (a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding
referred to in division (E)(1) or (2) of this
section, the articles or the regulations of a
corporation state, by specific reference to this
division, that the provisions of this division do not
apply to the corporation and unless the only
liability asserted against a director in an action,
suit, or proceeding referred to in division (E)(1) or
(2) of this section is pursuant to section 1701.95 of
the Revised Code, expenses, including attorney's
fees, incurred by a director in defending the action,
suit, or proceeding shall be paid by the corporation
as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon
receipt of an undertaking by or on behalf of the
director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear
and convincing evidence in a court of
competent jurisdiction that his action or
failure to act involved an act or omission
undertaken with deliberate intent to cause
injury to the corporation or undertaken with
reckless disregard for the best interests of
the corporation;
(ii) Reasonably cooperate with the corporation
concerning the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member,
manager, or agent in defending any action, suit, or
proceeding referred to in division (E)(1) or (2) of
this section, may be paid by the corporation as they
are incurred, in advance of the final disposition of
the action, suit, or proceeding, as authorized by the
directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee,
officer, employee, member, manager, or agent to repay
-4-
such amount, if it ultimately is determined that he
is not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall not be
exclusive of, and shall be in addition to, any other rights
granted to those seeking indemnification under the articles,
the regulations, any agreement, a vote of shareholders or
disinterested directors, or otherwise, both as to action in
their official capacities and as to action in another capacity
while holding their offices or positions, and shall continue
as to a person who has ceased to be a director, trustee,
officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of
such a person.
(7) A corporation may purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, on behalf of or
for any person who is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request
of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or
foreign, nonprofit or for profit, a limited liability company,
or a partnership, joint venture, trust, or other enterprise,
against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to
indemnify him against such liability under this section.
Insurance may be purchased from or maintained with a person in
which the corporation has a financial interest.
(8) The authority of a corporation to indemnify persons pursuant
to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification,
insurance, or other protection that may be provided pursuant
to divisions (E)(5), (6), and (7) of this section. Divisions
(E)(1) and (2) of this section do not create any obligation to
repay or return payments made by the corporation pursuant to
division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger
and the new or surviving corporation, so that any person who
is or was a director, officer, employee, trustee, member,
manager, or agent of such a constituent entity, or is or was
serving at the request of such constituent entity as a
director, trustee, officer, employee, member, manager, or
agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the
same position under this section with respect to the new or
surviving corporation as he would if he had served the new or
surviving corporation in the same capacity.
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.
-5-
ITEM 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
ITEM 8. Exhibits.
--------
See the Exhibit Index attached hereto.
ITEM 9. Undertakings.
------------
A. Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any 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
informationrequired 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.
-6-
(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
Securities Act of 1933 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.
-7-
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 July 18, 2005.
FIRST DEFIANCE FINANCIAL CORP.
By: /s/ William J. Small
--------------------------------------------
William J. Small, Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ John C. Wahl Executive Vice President July 18, 2005
------------------------------ and Chief Financial Officer
John C. Wahl
/s/ James L. Rohrs Director and Executive July 18, 2005
------------------------------ Vice President
James L. Rohrs
/s/ Don C. Van Brackel Director and Vice Chairman July 18, 2005
------------------------------
Don C. Van Brackel
/s/ John L. Bookmyer Director July 18, 2005
------------------------------
John L. Bookmyer
/s/ Stephen L. Boomer Director July 18, 2005
------------------------------
Stephen L. Boomer
/s/ Douglas A. Burgei Director July 18, 2005
------------------------------
Douglas A. Burgei
Director July 18, 2005
------------------------------
Peter A. Diehl
/s/ John U. Fauster, III Director July 18, 2005
------------------------------
John U. Fauster, III
-8-
/s/ Dwain I. Metzger Director July 18, 2005
------------------------------
Dwain I. Metzger
/s/ Gerald W. Monnin Director July 18, 2005
------------------------------
Gerald W. Monnin
/s/ Thomas A. Voigt Director July 18, 2005
------------------------------
Thomas A. Voigt
-9-
EXHIBIT INDEX
-------------
Exhibit No. Description Location
----------- ----------- --------
4.1 First Defiance Financial Corp. Included herewith.
2005 Stock Option and Incentive 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 Included herewith.
and Pease LLP as to legality
23.1 Consent of Ernst & Young LLP Included herewith.
23.2 Consent of Vorys, Sater, Seymour Included herewith in
and Pease LLP Exhibit 5.
EXHIBIT 4.1
FIRST DEFIANCE FINANCIAL CORP.
2005 STOCK OPTION AND INCENTIVE PLAN
1. Purpose. The purpose of the First Defiance Financial Corp. 2005
Stock Option and Incentive Plan (this "Plan") is to promote and advance the
interests of First Defiance Financial Corp. (the "Company") and its shareholders
by enabling the Company to reward directors and employees of the Company and any
Subsidiary (hereinafter defined), and to strengthen the mutuality of interests
between the directors and employees and the Company's shareholders by providing
directors and employees 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) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as
amended, or any successor thereto, together with rules, regulations and
interpretations promulgated thereunder.
(c) "Committee" means the Committee of the Board constituted
as provided in Section 3 of this Plan.
(d) "Common Shares" means the common shares, $0.01 par value
per share, of the Company or any security of the Company issued in
substitution, in exchange or in lieu thereof.
(e) "Company" means First Defiance Financial Corp., an Ohio
corporation, or any successor corporation.
(f) "Employment" means regular employment with the Company or
a Subsidiary and does not include service as a director only.
(g) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any successor statute.
(h) "Fair Market Value" shall be determined as follows:
(i) If the Common Shares are quoted on The Nasdaq
Stock Market at the date of the grant of the Stock Option,
then the Fair Market Value shall be the mean between the
closing bid and closing asked quotation for a Common Share on
the grant date on The Nasdaq Stock Market.
(ii) 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.
(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.
(i) "Incentive Stock Option" means any Stock Option that is
intended to be and is specifically designated as an "incentive stock
option" within the meaning of Section 422 of the Code.
(j) "Non-Qualified Stock Option" means any Stock Option that
is not specifically designated as an Incentive Stock Option.
(k) "Participant" means an employee or director of the Company
or a Subsidiary who is granted a Stock Option under this Plan. 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.
(l) "Plan" means the First Defiance Financial Corp. 2005 Stock
Option and Incentive Plan, as set forth herein and as it may be
hereafter amended from time to time.
(m) "Stock Option" means an award to purchase Common Shares
granted pursuant to the provisions of Section 6 of this Plan.
(n) "Subsidiary" means any corporation or entity in which the
Company directly or indirectly controls 50% or more of the total voting
power of such corporation or entity and includes, without limitation,
First Federal Bank of the Midwest and First Insurance and Investments,
Inc.
(o) "Terminated for Cause" means any removal of a director or
discharge of an employee for the personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of a
material provision of any law, rule or regulation (other than traffic
violations or similar offenses) or a material violation of a final
cease-and-desist order or for any other action of a director or
employee which results in a substantial financial loss to the Company
or a Subsidiary.
3. Administration.
(a) This Plan shall be administered by the Committee to be
comprised of not fewer than three of the members of the Board. The
members of the Committee shall be appointed from time to time by the
Board. Members of the Committee shall serve at the pleasure of the
Board, and the Board may from time to time remove members from, or add
members to, the Committee. A majority of the members of the Committee
shall constitute a quorum for the transaction of business. An action
approved in writing by all of the members of the Committee then serving
shall be as effective as if the action had been taken by unanimous vote
at a meeting duly called and held. Notwithstanding the foregoing, if,
at the time a Stock Option is granted, the Committee includes directors
who are also employees of the Company, the grant of the Stock Option
must be approved by the entire Board.
(b) The Committee is authorized to construe and interpret this
Plan and to make all other determinations necessary or advisable for
the administration of this Plan. The Committee may designate persons
other than members of the Committee to carry out its responsibilities
under such conditions and limitations as it may prescribe. Any
determination, decision or action of the Committee in connection with
the construction, interpretation, administration or application of this
Plan shall be final, conclusive and binding upon all persons
participating in this Plan and any person validly claiming under or
through persons participating in this Plan. The Company shall effect
the granting of Stock Options under this Plan, in accordance with the
determinations made by the Committee, by execution of instruments in
writing in a form 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 effective date of the Plan, except with respect to
Stock Options then outstanding.
(b) Common Shares Subject to Plan. Common Shares that 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. The maximum number of Common
Shares that may be issued pursuant to Stock Options granted under this
Plan, subject to adjustment as provided in Section 10 of this Plan,
shall be 351,000 Common Shares. If any Stock Options are forfeited,
terminated or exchanged for other Stock Options, or expire unexercised,
the Common Shares which were subject to such Stock Options shall again
be available for Stock Options under this Plan to the extent of such
forfeiture, termination or expiration.
5. Eligibility and Grants. Persons eligible for Stock Options under
this Plan shall consist of directors and employees of the Company or a
Subsidiary 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 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.
(a) Grant. 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 terms and conditions set
forth in this Plan, shall be in such form as the Committee may from
time to time approve and shall contain such additional terms and
conditions as the Committee shall deem desirable, not inconsistent with
the express provisions of the Plan.
(b) Stock Option Price. The per share exercise price of a
Stock Option shall be determined by the Committee at the time of grant;
provided, however, that in no event shall the exercise price of a Stock
Option be less than 100% of the Fair Market Value of the Common Shares
on the date of the grant of such Stock Option. Notwithstanding the
foregoing, in the case of a Participant who owns Common Shares
representing more than 10% of the outstanding Common Shares at the time
an Incentive Stock Option is granted, the exercise price shall in no
event be less than 110% of the Fair Market Value of the Common Shares
at the time such 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; provided, however, that the term of
Incentive Stock Options will not exceed ten years after the date the
Incentive Stock Option is granted; provided further, however, that in
the case of a Participant who owns a number of Common Shares
representing more than 10% of the Common Shares outstanding at the time
the Incentive Stock Option is granted, the term of the Incentive Stock
Option shall not exceed five years.
(d) Exercisability. Exercisability of Stock Options shall be
determined by the Committee at the time of grant. With respect to
Incentive Stock Options granted under this Plan, to the extent the
aggregate Fair Market Value (determined as of the date the Incentive
Stock Option is granted) of the number of shares with respect to which
Incentive Stock Options are exercisable under all plans of the Company
or a Subsidiary for the first time by a Participant during any calendar
year exceeds $100,000, or such other limit as may be required by the
Code, such Stock Options shall be Non-Qualified Stock Options to the
extent of such excess.
(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
Stock Options. The Committee may also permit Participants, either on a
selective or aggregate basis, simultaneously to exercise Stock 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. In such event, the Committee may permit the exercise price to
be paid as soon as practicable after exercise.
7. Termination and Change of Control.
(a) General rule. Except as otherwise provided in paragraph
(b) or (c) of this Section 7, any Stock Option which has not yet become
exercisable shall terminate and be of no further force or effect when
any Participant who was a director ceases to be a director of the
Company or any Subsidiary or when any Participant who was an employee
ceases to be an employee of the Company or any Subsidiary, and, unless
the Committee shall specifically state otherwise at the time a Stock
Option is granted or thereafter, any Stock Option which has become
exercisable shall terminate if it is not exercised within three months
of the termination of Board membership or Employment, as applicable.
(b) Death, Disability or Retirement. Unless the Committee
shall specifically state otherwise at the time a Stock Option is
granted, all Stock Options granted under this Plan shall become
exercisable in full on the date of termination of a Participant's
Employment or directorship with the Company or a Subsidiary because of
his or her death, disability or retirement. Further, unless the
Committee shall specifically state otherwise at the time a Stock Option
is granted or thereafter, all Stock Options shall terminate if not
exercised within 12 months of the Participant's death or disability or
within five years of the Participant's retirement. Notwithstanding the
foregoing, any option intended to qualify as an Incentive Stock Option
must be exercised within three months of a Participant's retirement.
(c) Termination for Cause. Unless the Committee shall
specifically state otherwise at the time a Stock Option is granted, in
the event the Employment or the directorship of a Participant is
Terminated for Cause, any Stock Option that has not been exercised
shall thereupon terminate and be of no further force or effect.
(d) Change of Control All outstanding Stock Options shall
become immediately exercisable in the event of a change in control of
the Company, as determined by the Committee. For purposes of this
Section 7, "change in control" shall mean the acquisition, directly or
indirectly, of the beneficial ownership (within the meaning of the term
"beneficial ownership" as defined under Section 13(d) of the Exchange
Act and the rules promulgated thereunder) of 25% or more of the
outstanding voting securities of the Company by any person, trust,
entity or group.
8. Non-transferability of Stock Options. No Stock Option under this
Plan, and no rights or interests therein, shall be assignable or transferable by
a Participant except by will or the laws of descent and distribution. During the
lifetime of a Participant, Stock Options are exercisable only by, and payments
in settlement of Stock Options will be payable only to, the Participant or his
or her legal representative.
9. No Limitation on Certain Corporate Actions. The existence of this
Plan and the Stock Options granted hereunder shall not affect or restrict in any
way the right or power of the Board or the shareholders of the Company to make
or authorize the following: 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.
10. Adjustments Upon Changes in Capitalization. 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, spin-off,
split-up, combination or exchange of shares or other form of reorganization, or
any other change affecting the Common Shares, including a distribution (other
than normal cash dividends) of company assets to shareholders, such
proportionate adjustments, if any, as the Board in its discretion may deem
appropriate to reflect such change shall be made with respect to the aggregate
number of Common Shares for which Stock Options in respect thereof may be
granted under this Plan, the maximum number of Common Shares which may be sold
or awarded to any Participant, the number of Common Shares covered by each
outstanding Stock Option, and the exercise price per share in respect of
outstanding Stock Options.
11. 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 that may be
issued under this Plan (except for adjustments pursuant to Section 10 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. Notwithstanding the foregoing, the Board may amend
this Plan to take into account changes in applicable securities, federal income
tax and other applicable laws.
12. Modification of Options. The Board may authorize the Committee to
direct the execution of an instrument providing for the modification of any
outstanding Stock Option which the Board believes to be in the best interests of
the Company; provided, however, that no such modification, extension or renewal
shall confer on the holder of such Stock Option any right or benefit which could
not be conferred on him or her 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.
13. Miscellaneous.
(a) Tax Withholding. The Company shall have the right to
deduct from any settlement, including the delivery 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 obligations 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 Stock Option shall confer upon any employee of
the Company or a Subsidiary any right to continued Employment with the
Company or a Subsidiary, as the case may be, nor shall it interfere in
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 Stock Options. The grant of any Stock Option
payable in Common Shares is provisional until the Participant becomes
entitled to the certificate in settlement thereof. In the event the
Employment or the directorship of a Participant is Terminated for
Cause, any Stock Option which is provisional shall be annulled as of
the date of such termination.
(d) Other Company Benefit and Compensation Programs. Payments
and other benefits received by a Participant under a Stock Option made
pursuant to this Plan shall not be deemed a part of a Participant's
regular, recurring compensation for purposes of the termination,
indemnity or severance pay law of any country and shall not be included
in, nor have any effect on, the determination of benefits under any
other employee benefit plan or similar arrangement provided by the
Company or a Subsidiary unless expressly so provided by such other plan
or arrangement, or except where the Committee expressly determines that
a Stock Option or portion of a Stock Option should be included to
accurately reflect competitive compensation practices or to recognize
that a Stock Option has been made in lieu of a portion of competitive
annual cash compensation. Stock Options under this Plan may be made in
combination with or in tandem with, or as alternatives to, grants,
stock options or payments under any other plans of the Company or a
Subsidiary. This Plan notwithstanding, the Company or any Subsidiary
may adopt such other compensation programs and additional compensation
arrangements as it deems necessary to attract, retain and reward
directors and employees for their service with the Company and its
Subsidiaries.
(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 stop-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) Stock Option Agreement. Each Participant receiving a Stock
Option under this Plan shall enter into an agreement with the Company
in a form specified by the Committee agreeing to the terms and
conditions of the Stock Option and such related matters as the
Committee shall, in its sole discretion, determine.
(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.
(i) Effective Date. This Plan shall be effective upon approval
by the shareholders of the Company.
EXHIBIT 5
Opinion of Counsel
July 29, 2005
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 proposed issuance and sale
of the common shares of the Company, par value $.01 per share (the "Common
Shares"), upon the exercise of options granted to purchase such Common Shares
pursuant to the First Defiance Financial Corp. 2005 Stock Option and Incentive
Plan (the "Plan"). In accordance with the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, a Registration Statement
on Form S-8 describing the Plan will be filed with the Securities and Exchange
Commission on or about August 2, 2005(the "Registration Statement"), for the
purpose of registering the 351,000 Common Shares that are reserved for issuance
under the Plan.
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, as certified by the Secretary of the Company; (c) the
Bylaws of the Company, as amended, as certified by the Secretary of the Company;
(d) the resolutions adopted by the Board of Directors of the Company on February
21, 2005, as certified by the Secretary of the Company; (e) the Certificate of
the Inspector of Election for the meeting of the shareholders of the Company
held on April 19, 2005; and (f) 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. 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 Plan and in the Registration Statement (when it becomes
effective), such Common Shares issued upon the exercise of such options will be
validly issued, fully paid and non-assessable.
This opinion is limited to the federal laws of the United States and to
the laws of the State of Ohio having effect as of the date hereof. This opinion
is furnished by us solely for the benefit of the Company in connection with the
offering of the Common Shares and the filing of the Registration 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
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