Please wait
As filed with the U.S. Securities and
Exchange Commission on April 10, 2009
Registration No.
333-_________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
FIRST
PLACE FINANCIAL CORP.
(Exact
Name of Registrant as Specified in its Charter)
|
Delaware
|
34-1880130
|
|
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
185
East Market Street
Warren,
Ohio 44481
(330)
373-1221
(Address,
including zip code, and telephone number, including area code, of Registrant’s
principal executive offices)
President
and Chief Executive Officer
First
Place Financial Corp.
185
East Market Street
Warren,
Ohio 44481
(330)
373-1221
(Name,
address, including zip code, and telephone number, including area code, of agent
for service for Registrant)
with
copies to:
Joseph
G. Passaic, Jr., Esquire
Patton
Boggs LLP
2550
M Street, N.W.
Washington,
D.C. 20037
(202)
457-6000
Approximate date of commencement of
proposed sale to the public: From time to time after this
Registration Statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. £
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with the dividend or interest
reinvestment plans, check the following box. R
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment hereto that shall become effective upon filing with the
Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. £
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. £
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
|
Large
accelerated filer £
|
Accelerated
filer
R
|
Non-accelerated
filer
£
|
Smaller
reporting company
£
|
|
|
|
(Do
not check if a
smaller
reporting company)
|
|
CALCULATION
OF REGISTRATION FEE
|
Title of Each Class of
Securities to be Registered
|
|
Amount to be
Registered
|
|
|
Proposed Maximum
Price per Unit
|
|
|
Proposed Maximum
Aggregate
Offering Price
|
|
|
Amount of
Registration
Fee
|
|
|
Warrant
to Purchase Common Stock, $0.01 par value per share, and underlying shares
of Common Stock(1)
|
|
|
3,670,822 |
(1) |
|
$ |
2.98 |
(2) |
|
$ |
10,939,049.56 |
(2) |
|
$ |
610.40 |
|
|
TOTAL:
|
|
|
|
|
|
|
|
|
|
$ |
10,939,049.56 |
|
|
$ |
610.40 |
|
|
|
(1)
|
There
are being registered hereunder (a) a warrant for the purchase of 3,670,822
shares of common stock with an initial per share exercise price of $2.98
per share, (b) the 3,670,822 shares of common stock issuable upon exercise
of such warrant and (c) such additional number of shares of common stock,
of a currently indeterminable amount, as may from time to time become
issuable by reason of stock splits, stock dividends and certain
anti-dilution provisions set forth in such warrant, which shares of common
stock are registered hereunder pursuant to Rule
416.
|
|
|
(2)
|
Calculated
in accordance with Rule 457(i) with respect to the per share exercise
price of the warrant of $2.98.
|
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
We will
amend and complete the information in this prospectus. The selling
securityholders may not sell any of these securities or accept your offer to buy
any of them until the documentation filed with the Securities and Exchange
Commission relating to these securities has been declared “effective” by the
Securities and Exchange Commission. This prospectus is not an offer
to sell these securities and the selling securityholders are not soliciting your
offer to buy these securities in any state or other jurisdiction where that
would not be permitted or legal.
SUBJECT TO COMPLETION,
DATED APRIL 10, 2009
PROSPECTUS
FIRST
PLACE FINANCIAL CORP.
WARRANT
TO PURCHASE 3,670,822 SHARES OF COMMON STOCK
3,670,822
SHARES OF COMMON STOCK
This
prospectus relates to the potential resale from time to time by selling
securityholders of an amended and restated warrant to purchase 3,670,822 shares
of our common stock or the warrant, and any shares of our common stock issuable
from time to time upon exercise of the warrant. The warrant may only
be exercised following stockholder approval of the issuance of the common stock
upon exercise of the warrant. We intend to ask our stockholders to
approve the issuance of the common stock underlying the warrant at a special
meeting of stockholders. In this prospectus, we refer to the warrant
and the shares of common stock issuable upon exercise of the warrant subject to
stockholder approval, collectively, as the securities. The warrant
was issued in connection with the issuance of 72,927 shares of our Fixed Rate
Cumulative Perpetual Preferred Stock, Series A, or series A preferred stock,
pursuant to the Letter Agreement dated March 13, 2009, and the related
Securities Purchase Agreement – Standard Terms, between us and the United States
Department of the Treasury, which we refer to as the Treasury or the initial
selling securityholder, in a transaction exempt from the registration
requirements of the Securities Act of 1933, as amended, or the Securities
Act.
The
initial selling securityholder and its successors, including transferees, which
we collectively refer to as the selling securityholders, may offer the
securities from time to time directly or through underwriters, broker-dealers or
agents and in one or more public or private transactions and at fixed prices,
prevailing market prices, at prices related to prevailing market prices or at
negotiated prices. If these securities are sold through underwriters,
broker-dealers or agents, the selling securityholders will be responsible for
underwriting discounts or commissions or agents’ commissions.
We will
not receive any proceeds from the sale of the securities by the selling
securityholders.
Our
common stock is traded on the Nasdaq Global Select Market under the symbol
“FPFC.” On ________ ___, 2009, the closing price of our common stock
on the Nasdaq Global Select Market was $_______ per share. You are
urged to obtain current market prices of our common stock.
The
warrant is not listed on an exchange, and, unless requested by the initial
selling securityholder, we do not intend to list the warrant on any
exchange.
Investing
in our securities involves a high degree of risk. See “Risk Factors”
beginning on page 2.
Our
principal executive offices are located at 185 East Market Street, Warren, Ohio
44481 and our telephone number is (330) 373-1221. Our Internet
address is http://www.
firstplacebank.com.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
These
securities are not savings accounts, deposits or other obligations of any bank
and are not insured or guaranteed by the Federal Deposit Insurance Corporation
or any other governmental agency.
The date of this prospectus is _______
___, 2009.
TABLE
OF CONTENTS
|
|
|
Page
|
|
|
|
|
|
|
|
ABOUT THIS PROSPECTUS
|
|
|
1 |
|
|
FORWARD-LOOKING STATEMENTS
|
|
|
1 |
|
|
ABOUT FIRST PLACE FINANCIAL
CORP.
|
|
|
2 |
|
|
RISK FACTORS
|
|
|
2 |
|
|
USE OF PROCEEDS
|
|
|
3 |
|
|
DESCRIPTION OF WARRANT TO PURCHASE COMMON
STOCK
|
|
|
3 |
|
|
DESCRIPTION
OF CAPITAL STOCK
|
|
|
5 |
|
|
PLAN OF DISTRIBUTION
|
|
|
9 |
|
|
SELLING SECURITYHOLDERS
|
|
|
10 |
|
|
LEGAL MATTERS
|
|
|
11 |
|
|
EXPERTS
|
|
|
11 |
|
|
WHERE YOU CAN FIND MORE
INFORMATION
|
|
|
11 |
|
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement we filed with the Securities and
Exchange Commission, or the SEC, using a “shelf” registration
process. Under this shelf registration process, the selling
securityholders may, from time to time, offer and sell, in one or more
offerings, the securities described in this prospectus.
The
registration statement containing this prospectus, including the exhibits to the
registration statement, provides additional information about us and the
securities offered under this prospectus. The registration statement,
including the exhibits and the documents incorporated herein by reference, can
be read on the SEC website or at the SEC offices mentioned under the heading
"Where You Can Find More Information."
We may
provide a prospectus supplement containing specific information about the terms
of a particular offering by the selling securityholders. The
prospectus supplement may add, update or change information in this
prospectus. If the information in this prospectus is inconsistent
with a prospectus supplement, you should rely on the information in that
prospectus supplement. You should read both this prospectus and, if
applicable, any prospectus supplement. See “Where You Can Find More
Information” for more information.
In this
prospectus, “First Place,” “we,” “our,” “ours,” and “us” refer to First Place
Financial Corp., which is a savings and loan holding company headquartered
in Warren, Ohio, and its subsidiaries on a consolidated basis, unless the
context otherwise requires. References to the “Bank” mean First Place
Bank, which is a federal savings association and our principal banking
subsidiary.
FORWARD-LOOKING
STATEMENTS
This
prospectus and the documents incorporated by reference contain statements that
are considered “forward looking statements” within the meaning of United States
securities laws. In addition, First Place and its management may make
other written or oral communications from time to time that contain
forward-looking statements. Forward-looking statements, including
statements about industry trends, management’s future expectations and other
matters that do not relate strictly to historical facts, are based on
assumptions by management, and are often identified by such forward-looking
terminology as “expect,” “look,” “believe,” “anticipate,” “estimate,” “seek,”
“may,” “should,” “will,” “trend,” “project,” “target,” and
“goal” or similar statements or variations of such
terms. Forward-looking statements may include, among other things,
statements about First Place’s confidence in its strategies and its expectations
about financial performance, market growth, market and regulatory trends and
developments, acquisitions and divestitures, new technologies, services and
opportunities and earnings.
Forward-looking
statements are subject to various risks and uncertainties, which change over
time, are based on management’s expectations and assumptions at the time the
statements are made, and are not guarantees of future
results. Management’s expectations and assumptions, and the continued
validity of the forward-looking statements, are subject to change due to a broad
range of factors affecting the national and global economies, the equity, debt,
currency and other financial markets, as well as factors specific to First Place
and its subsidiaries, including the Bank.
Actual
outcomes and results may differ materially from what is expressed in our
forward-looking statements and from our historical financial results due to the
factors discussed elsewhere in this prospectus or disclosed in our other SEC
filings. Forward-looking statements should not be relied upon as
representing our expectations or beliefs as of any date subsequent to the time
this prospectus is filed with the SEC. First Place undertakes no
obligation to revise the forward-looking statements contained in this prospectus
to reflect events after the time it is filed with the SEC. The
factors discussed herein are not intended to be a complete summary of all risks
and uncertainties that may affect our businesses. Though we strive to
monitor and mitigate risk, we cannot anticipate all potential economic,
operational and financial developments that may adversely impact our operations
and our financial results.
Forward-looking
statements should not be viewed as predictions, and should not be the primary
basis upon which investors evaluate First Place. Any investor in
First Place should consider all risks and uncertainties disclosed in our SEC
filings described below under the heading “Where You Can Find More Information,”
all of which are accessible on the SEC’s website at http://www.sec.gov.
ABOUT
FIRST PLACE FINANCIAL CORP.
First
Place is a unitary savings and loan holding company that owns all of the
outstanding capital stock of the Bank. The Bank is a federal savings
association and currently operates 21 retail locations in Trumbull, Mahoning and
Portage counties in Ohio, seven retail locations in Lorain County, Ohio, one
retail location in Defiance County, Ohio, one retail location in Franklin
County, Ohio and one retail location and two business financial centers in
Cuyahoga County, Ohio. In addition, the Bank, through its Michigan
division, has six retail locations located in Southeastern Michigan near the
Detroit metropolitan area and seven retail locations located in Michigan near
the Flint metropolitan area. The Bank also operates 18 loan
production offices, of which 11 are located throughout Ohio, five are located in
Michigan, and two are located in Indiana. The Bank’s principal
business consists of accepting retail and business deposits from the general
public and investing these funds primarily in one-to four-family residential
mortgage, home equity, multifamily, commercial real estate, commercial and
construction loans.
First
Place is also the parent company of a non-banking subsidiary, First Place
Holdings, Inc., that has five operating subsidiaries: First Place
Insurance Agency, Ltd.; Coldwell Banker First Place Real Estate, Ltd. and its
subsidiary First Place Referral Network, Ltd.; APB Financial Group, Ltd.;
American Pension Benefits, Inc.; and TitleWorks Agency, LLC. First Place
Insurance Agency, Ltd. offers property, casualty, health and life insurance
products. Coldwell Banker First Place Real Estate, Ltd. is a
residential and commercial real estate brokerage firm. APB Financial Group, Ltd.
and American Pension Benefits, Inc. are employee benefit consulting firms and
specialists in wealth management, and provide services to both businesses and
consumers. First Place Holdings owns 75% of TitleWorks Agency, LLC,
which provides real estate title services. Through its subsidiaries,
First Place is able to offer a wide variety of business and retail banking
products, as well as a full range of insurance, real estate, and investment
services.
RISK
FACTORS
An
investment in our securities involves significant risks. Before you
make an investment decision regarding the securities you should carefully
consider the risk factor set forth below, the risks, uncertainties and risk
factors set forth in the documents and reports filed with the SEC that are
incorporated by reference into this prospectus, as well as any risks described
in any applicable prospectus supplement.
The
exercise of the warrant and the issuance of the shares of common stock upon
exercise of the warrant are subject to stockholder approval.
The
resale of the warrant and the shares issuable upon exercise of the warrant are
being registered by this prospectus. The warrant, however, may be not
exercised until we obtain stockholder approval for the issuance of the shares of
common stock upon exercise of the warrant. We intend to ask our
stockholders to approve the issuance of the shares of common stock upon exercise
of the warrant at a special meeting of stockholders. There is no
guarantee that we will be successful in timely obtaining stockholder approval or
obtaining stockholder approval at all for the issuance of the common stock upon
exercise of the warrant. If at the end of the eighteen-month period
beginning on the issue date of the warrant our stockholders have not approved
the issuance of the common stock issuable upon exercise of the warrant, then the
Treasury may cause us to issue an alternative economic interest having the same
value as the warrant. Consequently there is a risk that the ability
to exercise the warrant could be significantly delayed or that the warrant
will never become exercisable and the shares of common stock issuable upon
exercise of the warrant will never be issued.
USE
OF PROCEEDS
We will
not receive any proceeds from any sale of the securities by the selling
securityholders.
DESCRIPTION
OF WARRANT TO PURCHASE COMMON STOCK
The
following is a brief description of the terms of the warrant that may be resold
by the selling securityholders. This summary does not purport to be
complete in all respects. This warrant is the amendment and
restatement of the original warrant that we issued on March 13, 2009 in
connection with the transactions contemplated by the Letter Agreement and the
related Securities Purchase Agreement – Standard Terms, between us and the
Treasury. The below description is subject to and qualified in its
entirety by reference to the warrant, a copy of which was filed with the SEC on
April 6, 2009 on our Current Report on Form 8-K/A and is also available upon
request from us, and the Form 8-K filed with the SEC on March 17,
2009.
Shares
of Common Stock Subject to the Warrant
The
warrant is initially exercisable for 3,670,822 shares of our common
stock. If we complete one or more qualified equity offerings on or
prior to December 31, 2009 that result in our receipt of aggregate gross
proceeds of not less than $72,927,000, which is equal to 100% of the aggregate
liquidation preference of the series A preferred stock, the number of shares of
common stock underlying the warrant then held by the selling securityholders
will be reduced by 50% to approximately 1,835,411 shares. The
number of shares subject to the warrant are subject to the further adjustments
described below under the heading “—Adjustments to the Warrant.”
Exercise
of the Warrant and Exercise Price
We are
required to seek stockholder approval of the issuance of the common stock upon
exercise of the warrant as required by the rules of the Nasdaq Stock Market,
because the number of shares of common stock that may be acquired upon exercise
of the warrant exceed 19.9% of the number of shares of our common stock
outstanding prior to issuance of the warrant. Under its terms, the
warrant may not be exercised until we receive stockholder approval for the
issuance of the common stock underlying the warrant. We intend to ask our
stockholders to approve the issuance of the common stock underlying the warrant
at a special meeting of stockholders. Following stockholder
approval, the warrant, which has a 10-year term, may be exercised at anytime by
surrender of the warrant and a completed notice of exercise attached as an annex
to the warrant and the payment of the exercise price for the shares of common
stock for which the warrant is being exercised.
The
initial exercise price of the warrant is $2.98 per share of common stock for
which the warrant may be exercised. If our stockholders do not
approve the issuance of the common stock underlying the warrant by September 13,
2009, which is the six month anniversary date of the issue date of the warrant,
the exercise price of the warrant will be reduced by 15% to $2.53 per
share. The exercise price will be further reduced by 15% of the
initial exercise price at the end of each six-month period thereafter if
stockholder approval has not been obtained, subject to a maximum reduction of
$1.34 per share. If at the end of the eighteen-month period beginning on
the issue date of the warrant our stockholders have not approved the
issuance of the common stock underlying the warrant, then the Treasury may cause
us to issue an alternative economic interest having the same value as the
warrant.
The
exercise price may be paid either by the withholding by First Place of such
number of shares of common stock issuable upon exercise of the warrant equal to
the value of the aggregate exercise price of the warrant determined by reference
to the market price of our common stock on the trading day on which the warrant
is exercised or, if agreed to by us and the warrantholder, by the payment of
cash equal to the aggregate exercise price. The exercise price
applicable to the warrant is subject to the further adjustments described below
under the heading “—Adjustments to the Warrant.”
Upon
exercise of the warrant, certificates for the shares of common stock issuable
upon exercise will be issued to the warrantholder. We will not issue
fractional shares upon any exercise of the warrant. Instead, the
warrantholder will be entitled to a cash payment equal to the market price of
our common stock on the last day preceding the exercise of the warrant (less the
pro-rated exercise price of the warrant) for any fractional shares that would
have otherwise been issuable upon exercise of the warrant. We will at
all times reserve the aggregate number of shares of our common stock for which
the warrant may be exercised. Subject to stockholder approval, we
intend to list the shares of common stock issuable upon exercise of the warrant
with the Nasdaq Global Select Market.
Rights
as a Stockholder
The
warrantholder will have no rights or privileges of the holders of our common
stock, including any voting rights, until (and then only to the extent) the
warrant has been exercised.
Transferability
The
initial selling securityholder may not transfer a portion of the warrant with
respect to more than 1,835,411 shares of common stock until the earlier of
the date on which First Place has received aggregate gross proceeds from a
qualified equity offering of at least $72,927,000 and December 31,
2009. The warrant, and all rights under the warrant, are otherwise
transferable.
Adjustments
to the Warrant
Adjustments in Connection with Stock
Splits, Subdivisions, Reclassifications and Combinations. The
number of shares for which the warrant may be exercised and the exercise price
applicable to the warrant will be proportionately adjusted in the event we pay
dividends in shares of our common stock or make distributions in shares of our
common stock, subdivide, combine or reclassify outstanding shares of our common
stock.
Anti-dilution Adjustment. Until the
earlier of March 13, 2012 and the date the initial selling securityholder no
longer holds the warrant (and other than in certain permitted transactions
described below), if we issue any shares of common stock (or securities
convertible or exercisable into common stock) for less than 90% of the market
price of the common stock on the last trading day prior to pricing such shares,
then the number of shares of common stock into which the warrant is exercisable
and the exercise price will be adjusted. Permitted transactions
include issuances:
|
|
·
|
as
consideration for or to fund the acquisition of businesses and/or related
assets;
|
|
|
·
|
in
connection with employee benefit plans and compensation related
arrangements in the ordinary course and consistent with past practice
approved by our board of directors;
|
|
|
·
|
in
connection with public or broadly marketed offerings and sales of common
stock or convertible securities for cash conducted by us or our affiliates
pursuant to registration under the Securities Act, or Rule 144A thereunder
on a basis consistent with capital-raising transactions by comparable
financial institutions (but do not include other private transactions);
and
|
|
|
·
|
in
connection with the exercise of preemptive rights on terms existing as of
March 13, 2009.
|
Other Distributions. If we declare
any dividends or distributions other than our historical, ordinary cash
dividends, the exercise price of the warrant will be adjusted to reflect such
distribution.
Certain Repurchases. If we affect a
pro rata repurchase of
common stock both the number of shares issuable upon exercise of the warrant and
the exercise price will be adjusted.
Business
Combinations. In the event of a merger, consolidation or
similar transaction involving First Place and requiring stockholder
approval, the warrantholder’s right to receive shares of our common stock upon
exercise of the warrant will be converted into the right to exercise the warrant
for the consideration that would have been payable to the warrantholder with
respect to the shares of common stock for which the warrant may be exercised, as
if the warrant had been exercised prior to such merger, consolidation or similar
transaction.
DESCRIPTION
OF CAPITAL STOCK
Our
authorized capital stock consists of (i) 53,000,000 shares of common stock,
$0.01 par value per share; and (ii) 3,000,000 shares of preferred stock, $0.01
par value per share.
As of
_____ __, 2009, there were ________ shares of our common stock issued and
outstanding and 72,927 shares of our preferred stock issued and outstanding, all
of which consisted of our series A preferred stock.
Common
Stock
The
following is a brief description of our common stock that may be resold by the
selling securityholders. This summary does not purport to be complete
in all respects. This description is subject to and qualified in its
entirety by reference to our amended and restated certificate of incorporation a
copy of which has been filed with the SEC and is also available upon request
from us.
Our
common stock is listed on the Nasdaq Global Select Market.
Each
holder of our common stock is entitled to one vote for each share held on all
matters with respect to which the holders of our common stock are entitled to
vote. Our amended and restated certificate of incorporation provides
that holders of common stock who own or may be considered to own more than 10%
of the outstanding shares of common stock can only vote their stock up to the
10% limit. A quorum for a meeting of stockholders is a majority of
our outstanding capital stock, subject to the 10% voting limit described in the
foregoing sentence, entitled to be cast by the holders of shares of capital
stock on that matter at such meeting. With respect to any other
matter other than the election of directors, the votes of a majority of the
votes cast at any properly called meeting or adjourned meeting of
stockholders at which a quorum is present is required to transact
business. Holders of our common stock are not entitled to cumulative
voting in the election of directors. Our common stock has no
preemptive sinking fund or conversion rights and is not subject to
redemption. In the event of our dissolution or liquidation, after
payment of all creditors, the holders of our common stock (subject to the prior
rights of the holders of any outstanding preferred stock, including the series A
preferred stock) will be entitled to receive pro rata any assets distributable
to stockholders based on the number of shares held by them.
The
holders of shares of our common stock are entitled to such dividends as our
board of directors, in its discretion, may declare out of assets lawfully
available. However, the payment of dividends on our common stock
would be subject to the prior rights of the holders of any preferred stock,
including our series A preferred stock. Payment of dividends on both
our common stock and any preferred stock will be dependent upon, among other
things, our earnings and financial condition, our cash flow requirements and the
prevailing economic and regulatory climate.
The
Securities Purchase Agreement, dated March 13, 2009, that we entered into with
the Treasury in connection with our participation in the Troubled Asset Relief
Program, or TARP, Capital Purchase Program, or CPP, provides that prior to the
earlier of (i) March 13, 2012 and (ii) the date on which all of the shares of
the series A preferred stock have been redeemed by us or transferred by the
Treasury to third parties, we may not, without the consent of the Treasury, (a)
declare or pay any cash dividend on our common stock in excess of the amount of
our last quarterly dividend declared prior to October 14, 2008, which was $0.085
per share, or (b) subject to limited exceptions, redeem, repurchase or otherwise
acquire shares of our common stock or preferred stock (other than the series A
preferred stock) or trust preferred securities.
On March
17, 2009, in connection with our response to the annual examination by the
Office of Thrift Supervision, or OTS, our board of directors agreed to certain
restrictions with regard to our activities as outlined in an agreement with the
OTS. Specifically, under the terms of the agreement, we are required
to obtain the written consent of the OTS prior to the declaring or paying of any
dividends or making any other capital distribution, or repurchasing or redeeming
any capital stock in addition to certain other restrictions. These
restrictions will remain in effect until such time as the OTS modifies,
terminates, or otherwise suspends the restrictions.
The
transfer agent and registrar for our common stock is the Registrar and Transfer
Company.
Preferred
Stock
Under our
amended and restated certificate of incorporation we have authority to issue up
to 3,000,000 shares of preferred stock, $0.01 par value per share. Of
such number of shares of preferred stock authorized, 72,927 shares have been
designated as series A preferred stock, all of which shares were issued to the
Treasury on March 13, 2009 in a transaction exempt from the registration
requirements of the Securities Act. No other shares of preferred
stock are issued and outstanding as of the date hereof.
The
following is a brief description of the material terms and provisions of our
series A preferred stock. This summary does not purport to be
complete in all respects. This description is subject to and
qualified in its entirety by reference to the certificate of designations, as
amended, that sets forth the terms of the series A preferred stock, a copy
of which was filed with the SEC on March 17, 2009 on our Current Report on Form
8-K and is also available upon request from us.
The
series A preferred stock has a liquidation preference of $1,000 per share and
pays cumulative dividends at a rate of 5% per year for the first five years and
thereafter at a rate of 9% per year, prior to the payment of dividends on any
shares of our common stock and all other securities ranking junior to the series
A preferred stock. We may repurchase the series A preferred stock
from the Treasury at any time after consultation with our primary federal
regulator so long as we repurchase at least 25% of the purchase price of
the series A preferred stock, which was approximately
$72,927,000. Following the Treasury’s transfer of the series A
preferred stock to a third party, the series A preferred stock may not be
redeemed by us during the first three years following issuance except with the
proceeds from a “qualified equity offering” (as defined in the certificate of
designations that was previously filed with the SEC as indicated
below). After three years, we may, at our option, redeem the series A
preferred stock at the liquidation preference of $1,000 per share plus accrued
and unpaid dividends.
Except in
limited circumstances, the series A preferred stock does not have voting
rights. Prior to the third anniversary of the issuance of the series
A preferred stock, unless we have redeemed all of the series A preferred stock
or the Treasury has transferred all of the series A preferred stock to a third
party, the consent of the Treasury will be required for us to pay a quarterly
dividend in excess of $0.085 per share or repurchase our common stock or other
capital securities (except for certain circumstances specified in the Securities
Purchase Agreement). Our ability to increase our common stock
dividend or repurchase our common stock or other capital securities requires the
payment or declaration by us of all accrued and unpaid dividends for the series
A preferred stock.
In the
event that we do not pay dividends on the series A preferred stock for six
dividend periods, whether or not consecutive, the size of our board of directors
will automatically be increased by two seats. Following the expansion
of our board, the holders of the series A preferred stock will have the right to
elect two directors to fill the newly created directorships at the next annual
meeting and at each subsequent annual meeting. The holder of the
series A preferred stock is entitled to keep these seats until all accrued and
unpaid dividends for all past dividend periods on all outstanding shares of
series A preferred stock have been declared and paid in full.
Anti-Takeover
Provisions
The
provisions of Delaware law, our amended and restated certificate of
incorporation and bylaws that we summarize below may have an anti-takeover
effect and may delay, defer or prevent a tender offer or takeover attempt that a
stockholder might consider in his or her best interest, including those attempts
that might result in a premium over the market price for the common
stock.
Business Combination Under
Delaware Law. Under the
business combination statute of Delaware law, a corporation is prohibited from
engaging in any business combination involving an interested stockholder,
together with its affiliates or associates, for a three (3) year period
following the time the stockholder becomes an interested stockholder,
unless:
|
|
·
|
prior
to the time the stockholder became an interested stockholder, the board of
directors of the corporation approved either the business combination or
the transaction which resulted in the stockholder becoming an interested
stockholder;
|
|
|
·
|
the
interested stockholder owned at least eighty-five percent (85%) of the
voting stock of the corporation, excluding specified shares, upon
consummation of the transaction which resulted in the stockholder becoming
an interested stockholder; or
|
|
|
·
|
at
or subsequent to the time the stockholder became an interested
stockholder, the business combination is approved by the board of
directors of the corporation and authorized by the affirmative vote, at an
annual or special meeting and not by written consent, of at least
sixty-six and two thirds percent (66 2/3%)
of the outstanding voting shares of the corporation, excluding shares held
by that interested stockholder.
|
Under
Delaware law, an interested stockholder generally means any person that is the
owner of fifteen percent (15%) or more of the outstanding voting stock of the
corporation or is an affiliate or associate of the corporation and was the owner
of fifteen percent (15%) or more of the outstanding voting stock of the
corporation at any time within the three year period immediately prior to the
date of a proposed business combination.
A
business combination generally includes:
|
|
·
|
mergers,
consolidations and sales or other dispositions of ten percent (10%) or
more of the assets of a corporation to or with an interested
stockholder;
|
|
|
·
|
specified
transactions resulting in the issuance or transfer to an interested
stockholder of any capital stock of the corporation or its subsidiaries;
and
|
|
|
·
|
other
transactions resulting in a disproportionate financial benefit to an
interested stockholder.
|
The
provisions of the Delaware business combination statute do not apply to a
corporation if, among other things and subject to certain conditions, the
certificate of incorporation or bylaws of the corporation contain a provision
expressly electing not to be governed by the provisions of the statute or the
corporation does not have a class of voting stock listed on a national
securities exchange or held of record by more than two thousand (2,000)
stockholders. The Delaware business combination statute is applicable
to business combinations involving us.
Amended and Restated Certificate of
Incorporation. Our amended and restated
certificate of incorporation requires that, in addition to certain other
transactions, any merger or business combination of us or any of our
subsidiaries with an “interested stockholder” or any other corporation that is
or would be an affiliate of an interested stockholder, requires the affirmative
vote of at least eighty percent (80%) of the voting power of the
then-outstanding stock of First Place entitled to vote. An
“interested stockholder” is defined under our amended and restated certificate
of incorporation as any person who or which:
|
|
·
|
is
the beneficial owner, directly or indirectly, of more than 10% of the
voting power of the then outstanding stock of First Place entitled to
vote; or
|
|
|
·
|
is
an affiliate of First Place and at any time within the two-year period
immediately prior to the date of any such business combination was the
beneficial owner, directly or indirectly, of 10% or more of the voting
power of the then outstanding stock of First Place entitled to vote;
or
|
|
|
·
|
is
an assignee of or has otherwise succeeded to any shares of stock of First
Place entitled to resale which were at any time within the two-year period
immediately prior to the date of any such business combination
beneficially owned by any such stockholder, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
|
Blank Check Preferred
Stock. Our board of directors can at any time, under our amended and
restated certificate of incorporation and without stockholder approval, issue
one or more new series of preferred stock in addition to our currently
outstanding series A preferred stock. In some cases, the issuance of
preferred stock could discourage or make more difficult attempts to take control
of us through a merger, tender offer, proxy context or
otherwise. Preferred stock with special voting rights or other
features issued to persons favoring our management could stop a takeover by
preventing the person trying to take control of us from acquiring enough voting
shares to take control.
Classification of the Board of
Directors. Our amended and restated certificate of
incorporation and bylaws currently provides that our board of directors is
divided into three classes, as nearly identical in number as the then total
number of directors constituting the entire board of directors permits, with one
class elected annually to serve for a term of three years. This
classification of our board of directors may have the effect of making it more
difficult for stockholders to change the composition of our board of directors
whether or not a change in the composition of the board of directors may be
viewed as beneficial to us. The classification of our board of directors
may also discourage a takeover of us because a stockholder with a majority
interest in First Place may have to wait for at least two consecutive annual
meetings of stockholders to elect a majority of the members of our board of
directors.
Restrictions
on Ownership
Federal
law generally provides that no person or company, acting directly or indirectly
or through or in concert with one or more other persons, may acquire control (as
defined in OTS regulations) of a savings and loan holding company, such as First
Place, without the prior approval of the OTS.
PLAN
OF DISTRIBUTION
The
selling securityholders and their successors, including their transferees, may
sell the securities directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions from the selling securityholders or the purchasers of
the securities. These discounts, concessions or commissions as to any
particular underwriter, broker-dealer or agent may be in excess of those
customary in the types of transactions involved.
The
securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale or at negotiated prices. These sales may be affected
in transactions, which may involve crosses or block transactions:
|
|
·
|
on
any national securities exchange or quotation service on which the common
stock may be listed or quoted at the time of sale, including, as of the
date of this prospectus, the Nasdaq Global Select
Market;
|
|
|
·
|
in
the over-the-counter market;
|
|
|
·
|
in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
|
|
|
·
|
through
the writing of options, whether the options are listed on an options
exchange or otherwise.
|
In
addition, any securities that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
In
connection with the sale of the securities or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the common stock issuable upon exercise of
the warrant in the course of hedging the positions they assume. The
selling securityholders may also sell short the common stock issuable upon
exercise of the warrant and deliver common stock to close out short positions,
or loan or pledge the common stock issuable upon exercise of the warrant to
broker-dealers that in turn may sell these securities.
The
aggregate proceeds to the selling securityholders from the sale of the
securities will be the purchase price of the securities less discounts and
commissions, if any.
In
effecting sales, broker-dealers or agents engaged by the selling securityholders
may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
securityholders in amounts to be negotiated immediately prior to the
sale.
In
offering the securities covered by this prospectus, the selling securityholders
and any broker-dealers who execute sales for the selling securityholders may be
deemed to be “underwriters” within the meaning of Section 2(a)(11) of the
Securities Act in connection with such sales. Any profits realized by the
selling securityholders and the compensation of any broker-dealer may be deemed
to be underwriting discounts and commissions. Selling securityholders
who are “underwriters” within the meaning of Section 2(a)(11) of the Securities
Act will be subject to the prospectus delivery requirements of the Securities
Act and may be subject to certain statutory and regulatory liabilities,
including liabilities imposed pursuant to Sections 11, 12 and 17 of the
Securities Act and Rule 10b-5 under the Securities Exchange Act of 1934, or the
Exchange Act.
In order
to comply with the securities laws of certain states, if applicable, the
securities must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the
securities may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of securities pursuant to this prospectus and to the activities of the
selling securityholders. In addition, we will make copies of this
prospectus available to the selling securityholders for the purpose of
satisfying the prospectus delivery requirements of the Securities Act, which may
include delivery through the facilities of the Nasdaq Global Select Market
pursuant to Rule 153 under the Securities Act.
At the
time a particular offer of securities is made, if required, a prospectus
supplement will set forth the number and type of securities being offered and
the terms of the offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount, commission and
other item constituting compensation, any discount, commission or concession
allowed or reallowed or paid to any dealer, and the proposed selling price to
the public.
The
warrant is not listed on an exchange and we do not intend to list the warrant on
any exchange. No assurance can be given as to the liquidity of the
trading market, if any, for the securities.
We have
agreed to indemnify the selling securityholders against certain liabilities,
including certain liabilities under the Securities Act. We have also
agreed, among other things, to bear substantially all expenses (other than
certain expenses applicable to the sale of the securities covered by this
prospectus including, but not limited to, underwriting discounts and selling
commissions) in connection with the registration and qualification of the
securities covered by this prospectus.
SELLING
SECURITYHOLDERS
On March
13, 2009, we issued the securities covered by this prospectus to the United
States Department of the Treasury, which is the initial selling securityholder
under this prospectus, in a transaction exempt from the registration
requirements of the Securities Act. The initial selling
securityholder, or its successors, including transferees, may from time to time
offer and sell, pursuant to this prospectus or a supplement to this prospectus,
any or all of the securities they own. The securities to be offered
under this prospectus for the account of the selling securityholders
are:
|
|
·
|
a
warrant to purchase 3,670,822 shares of our common stock,
representing beneficial ownership of approximately ____% of our common
stock as of _____ __, 2009; and
|
|
|
·
|
3,670,822 shares
of our common stock issuable upon exercise of the warrant, which shares,
if issued, would represent ownership of approximately ____% of our common
stock as of ______ __, 2009.
|
For
purposes of this prospectus, we have assumed that, after completion of the
offering covered by this prospectus, none of the securities covered by this
prospectus will be held by the selling securityholders.
Beneficial
ownership is determined in accordance with the rules of the SEC and includes
voting or investment power with respect to the securities. To our
knowledge, the initial selling securityholder has sole voting and investment
power with respect to the securities.
We do not
know when or in what amounts the selling securityholders may offer the
securities for sale. The selling securityholders might not sell any
or all of the securities offered by this prospectus. Because the
selling securityholders may offer all or some of the securities pursuant to this
offering, and because currently no sale of any of the securities is subject to
any agreements, arrangements or understandings, we cannot estimate the number of
the securities that will be held by the selling securityholders after completion
of the offering.
Other
than with respect to the acquisition of the series A preferred stock and warrant
from us, the initial selling securityholder has not had a material relationship
with us.
Information
about the selling securityholders may change over time and changed information
will be set forth in supplements to this prospectus if and when
necessary.
LEGAL
MATTERS
The
validity of the securities offered hereby will be passed upon for us by Patton
Boggs LLP.
EXPERTS
The
consolidated financial statements of First Place as of June 30, 2008 and the
effectiveness of internal control over financial reporting as of June 30, 2008
of First Place have been audited by Crowe Horwath LLP, independent registered
public accounting firm, as set forth in their report thereon appearing in First
Place’s annual report on Form 10-K for the year ended June 30, 2008 and
incorporated herein by reference and upon the authority of said firm as
experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. Our SEC filings are available to the public over the
Internet at the SEC’s website at http:/www.sec.gov.
Copies of certain information filed by us with the SEC are also available
on our website at http:/www.firstplacebank.com. Our website is not a
part of this prospectus. You may also read and copy any document we
file at the SEC’s public reference room, 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information
on the operation of the public reference room.
The SEC
allows us to “incorporate by reference” information we file with it, which means
that we can disclose important information to you by referring you to other
documents. The information incorporated by reference is considered to
be a part of this prospectus, and information that we file later with the SEC
will automatically update and supersede this information. In all
cases, you should rely on the later information over different information
included in this prospectus.
We
incorporate by reference the documents listed below and all future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the termination of the offering, except to the extent that any
information contained in such filings is deemed “furnished” in accordance with
SEC rules, including, but not limited to, information furnished under Items 2.02
and 7.01 of any Current Report on Form 8-K including related
exhibits:
|
|
·
|
Our
Annual Report on Form 10-K for the year ended June 30, 2008, filed on
September 15, 2008.
|
|
|
·
|
Our
Quarterly Reports on Form 10-Q for the quarters ended September 30, 2008,
filed on November 10, 2008, and December 31, 2008, filed on February 9,
2009.
|
|
|
·
|
Our
Current Reports on Form 8-K filed on November 5, 2008, December 2, 2008,
March 5, 2009, March 12, 2009, March 17, 2009 and April 6,
2009.
|
|
|
·
|
The
description of our common stock contained on our Form 8-A as filed with
the SEC pursuant to Section 12(b) or 12(g) of the Exchange Act, on
November 9, 1998.
|
We will
provide to each person, including any beneficial owner, to whom a prospectus is
delivered, a copy of any or all of the documents or information that have been
incorporated by reference in this prospectus but not delivered with this
prospectus. We will provide this at no cost to the requestor upon
written or telephonic request addressed to First Place Financial Corp., 185
East Market Street, Warren, Ohio 44481 Attention: Craig
Carr (telephone: (330) 373-1221).
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized anyone else to provide you
with additional or different information.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses
of Issuance and Distribution
The
following table sets forth the various expenses to be incurred in connection
with the sale and distribution of the securities being registered hereby, all of
which will be borne by First Place (except any underwriting discounts and
commissions and expenses incurred by the selling securityholders for brokerage,
accounting, tax or legal services or any other expenses incurred by the selling
securityholders in disposing of the shares). All amounts shown are
estimates except the SEC registration fee.
|
SEC
Registration fee
|
|
$ |
610 |
|
|
Legal
fees and expenses
|
|
$ |
20,000 |
|
|
Accounting
fees and expenses
|
|
$ |
10,000 |
|
|
Other
|
|
$ |
9,000 |
|
|
Total
Expenses
|
|
$ |
39,610 |
|
Item
15. Indemnification
of Directors and Officers.
In
accordance with the General Corporation Law of the State of Delaware (being
Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of First Place’s
amended and restated certificate of incorporation provides as
follows:
TENTH:
A. Each
person who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a “proceeding”), by reason of the
fact that he or she is or was a director or an officer of First Place or is or
was serving at the request of First Place as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an “indemnitee”), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent, or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by First Place to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits First Place to provide broader indemnification
rights than such law permitted First Place to provide prior to such amendment),
against all expense, liability and loss (including attorneys’ fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith;
provided, however, that, except as provided in Section C hereof with respect to
proceedings to enforce rights to indemnification, First Place shall indemnify
any such indemnitee in connection with a proceeding (or part thereof) initiated
by such indemnitee only if such proceeding (or part thereof) was authorized by
the Board of directors of First Place.
B. The
right to indemnification conferred in Section A of this Article TENTH shall
include the right to be paid by First Place the expenses incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
“advancement of expenses”); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, services to an employee benefit plan) shall be made only upon
delivery to First Place of an undertaking (hereinafter an “undertaking”), by or
on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a “final adjudication”) that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article TENTH shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee’s heirs, executors and administrators.
C. If
a claim under Section A or B of this Article TENTH is not paid in full by First
Place within sixty days after a written claim has been received by First Place,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any time
thereafter bring suit against First Place to recover the unpaid amount of the
claim. If successful in whole or in part in any such suit, or in a suit brought
by First Place to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expenses of
prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by First Place to recover an
advancement of expenses pursuant to the terms of an undertaking First Place
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of First Place
(including its board of directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by First Place
(including its Board of directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by First Place to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of expenses
under this Article TENTH or otherwise shall be on First Place.
D. The
rights to indemnification and to the advancement of expenses conferred in this
Article TENTH shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, First Place’s certificate of
incorporation, bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
E. First
Place may maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of First Place or subsidiary or Affiliate
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not First Place would have
the power to indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
F. First
Place may, to the extent authorized from time to time by the board of directors,
grant rights to indemnification and to the advancement of expenses to any
employee or agent of First Place to the fullest extent of the provisions of this
Article TENTH with respect to the indemnification and advancement of expenses of
directors and officers of First Place.
ELEVENTH:
A
director of First Place shall not be personally liable to First Place or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability: (i) for any breach of the director’s duty of loyalty to
First Place or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. If the
Delaware General Corporation Law is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of First Place shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so
amended.
Any
repeal or modification of the foregoing paragraph by the stockholders of First
Place shall not adversely affect any right or protection of a director of First
Place existing at the time of such repeal or modification.
Delaware General
Corporation Law. The Delaware General Corporation Law
provides that any indemnification must be made by First Place only as authorized
in the specific case upon a determination that indemnification is proper in the
circumstances because the person has met the applicable standard of
conduct. Such determination must be made, with respect to person who
is a director or officer at the time of such determination, (1) by a majority of
our directors who are not parties to the
action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by our
stockholders.
Item
16. Exhibits
|
Exhibit
No.
|
|
Description
|
|
|
|
|
|
4.1
|
|
Amended
and Restated Warrant to Purchase Shares of Common Stock to purchase shares
of Common Stock of the Registrant (filed as Exhibit 4.1 to the
Registrant’s Current Report on Form 8-K/A filed on April 6, 2009 and
incorporated herein by reference)
|
|
|
|
|
|
5.1
|
|
Opinion
of Patton Boggs LLP
|
|
|
|
|
|
10.1
|
|
Letter
Agreement, dated as of March 13, 2009, between the Registrant and the
United States Department of the Treasury (filed as Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K filed on March 17, 2009 and
incorporated herein by reference)
|
|
|
|
|
|
23.1
|
|
Consent
of Crowe Horwath LLP
|
|
|
|
|
|
23.2
|
|
Consent
of Patton Boggs LLP (included in Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power
of Attorney of certain officers and directors (located on the signature
page to the Registration
Statement)
|
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933, as amended (the “Securities Act of 1933”);
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of this 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 this registration
statement. Notwithstanding the foregoing, any increase or decrease in
the volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and
(iii) to
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to
such information in this registration statement;
provided, however, that
paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), that are incorporated by reference in this
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of this registration statement.
(2) That,
for the purposes of determining any liability under the Securities Act of 1933,
each 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 the time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) each
prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided,
however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
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 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
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.
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 indemnification provisions described herein, 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
Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City
of Warren, State of Ohio, on April 10, 2009.
|
|
|
|
|
|
By:
|
/s/
Steven R. Lewis
|
|
|
|
|
|
President
and Chief Executive
Officer
|
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below does
hereby constitute and appoint Steven R. Lewis and David W. Gifford, or
either of them, as his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign this Registration
Statement (including all pre-effective and post-effective amendments thereto and
all registration statements filed pursuant to Rule 462(b) which incorporate this
registration statement by reference), and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith as fully to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming that all said attorneys-in-fact and agents, or
their substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
IN
WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as
of the date indicated.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated on April 10, 2009.
|
Signature
|
|
Title
|
|
|
|
|
|
/s/
Steven R. Lewis
|
|
President,
Chief Executive Officer and
|
|
Steven
R. Lewis
|
|
Director
(Principal
Executive Officer)
|
|
|
|
|
|
/s/
David W. Gifford
|
|
Vice President and Chief Financial Officer
|
|
David W. Gifford
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
/s/
Samuel A. Roth
|
|
|
|
Samuel
A. Roth
|
|
Chairman
of the Board
|
|
|
|
|
|
/s/
A. Gary Bitonte
|
|
|
|
A.
Gary Bitonte, M.D.
|
|
Director
|
|
Signature
|
|
Title
|
| |
|
|
|
/s/ Donald
Cagigas
|
|
Director
|
|
Donald Cagigas
|
|
|
|
|
|
|
|
/s/ Marie Izzo
Cartwright
|
|
Director
|
|
Marie Izzo Cartwright
|
|
|
|
|
|
|
|
/s/ Robert P.
Grace
|
|
Director
|
|
Robert P. Grace
|
|
|
|
|
|
|
|
/s/ Thomas M.
Humphries
|
|
Director
|
|
Thomas M. Humphries
|
|
|
|
|
|
|
|
/s/ Earl T.
Kissell
|
|
Director
|
|
Earl T. Kissell
|
|
|
|
|
|
|
|
/s/ Jeffrey B.
Ohlemacher
|
|
Director
|
|
Jeffrey B. Ohlemacher
|
|
|
|
|
|
|
|
/s/ E. Jeffrey
Rossi
|
|
Director
|
|
E. Jeffrey Rossi
|
|
|
|
|
|
|
|
/s/ William A.
Russell
|
|
Director
|
|
William A. Russell
|
|
|
|
|
|
|
|
/s/ Robert L.
Wagmiller
|
|
Director
|
|
Robert L. Wagmiller
|
|
|
EXHIBIT
INDEX
|
Exhibit
No.
|
|
Description
|
|
|
|
|
|
4.1
|
|
Amended
and Restated Warrant to Purchase Shares of Common Stock to purchase shares
of Common Stock of the Registrant (filed as Exhibit 4.1 to the
Registrant’s Current Report on Form 8-K/A filed on April 6, 2009 and
incorporated herein by reference)
|
|
|
|
|
|
5.1
|
|
Opinion
of Patton Boggs LLP
|
|
|
|
|
|
10.1
|
|
Letter
Agreement, dated as of March 13, 2009, between the Registrant and the
United States Department of the Treasury (filed as Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K filed on March 17, 2009 and
incorporated herein by reference)
|
|
|
|
|
|
23.1
|
|
Consent
of Crowe Horwath LLP
|
|
|
|
|
|
23.2
|
|
Consent
of Patton Boggs LLP (included in Exhibit 5.1)
|
|
|
|
|
|
24.1
|
|
Power
of Attorney of certain officers and directors (located on the signature
page to the Registration
Statement)
|