As filed with the U.S. Securities and Exchange Commission on June 9, 2005
Registration No. 333-
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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
CENTRAL FEDERAL CORPORATION
(Exact Name of Registrant As Specified in Its Charter)
DELAWARE 34-1877137
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
2923 SMITH ROAD
FAIRLAWN, OHIO 44333
(Address of Principal Executive Offices)
SECOND AMENDED AND RESTATED
CENTRAL FEDERAL CORPORATION
2003 EQUITY COMPENSATION PLAN
(Full Title of the Plan)
ELOISE L. MACKUS
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
CENTRAL FEDERAL CORPORATION
2923 SMITH ROAD
FAIRLAWN, OHIO 44333
(Name and Address of Agent for Service of Process)
330.666.7979
(Telephone Number, Including Area Code, of Agent for Service of Process)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of each Class of Amount to be Offering Price Per Aggregate Offering Registration
Securities to be Registered Registered (1) Share (2) Price (2) Fee (2)
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Common Stock 100,000 Shares
$.01 par Value $9.60 $960,000.00 $112.99
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers an indeterminate number of additional
shares of Common Stock to be offered or issued pursuant to terms of the
Second Amended and Restated Central Federal Corporation 2003 Equity
Compensation Plan that provide for a change in the number of securities
offered or issued as a result of a stock split, stock dividend or similar
transaction.
(2) The proposed maximum offering price per share has been determined pursuant
to Rule 457(c) as the average of the high and low prices quoted for Common
Stock on the Nasdaq Small Cap Market on June 8, 2005, and the proposed
maximum aggregate offering price and the amount of registration fee have
been calculated using that average price.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As required by Rule 428(b)(1), the documents containing the information required
in Part I of the Registration Statement will be provided to each participant in
the Second Amended and Restated Central Federal Corporation 2003 Equity
Compensation Plan. Those documents, which are not being filed with the
Securities and Exchange Commission (the "Commission") in accordance with the
instructions to Form S-8, constitute (along with the documents incorporated by
reference into the Registration Statement pursuant to Item 3 of Part II hereof)
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of Central Federal Corporation (the "Company"),
previously filed with the Securities and Exchange Commission (the "Commission"),
are incorporated herein by reference:
1. the Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2004
2. the Company's Quarterly Report on Form 10-QSB for the fiscal quarter ended
March 31, 2005; and
3. the description of the Company's Common Stock, par value $0.01 per share,
of the Company (the "Common Stock") contained in the Company's registration
statement on Form 8-A filed with the Commission on November 6, 1998,
including any amendments or reports filed for the purpose of updating that
description,
other than the portions of such documents, which by statute, by designation in
such document or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this Registration
Statement, 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 be deemed to be incorporated by reference in the
Registration Statement and to be a part hereof from the date of filing of such
documents other than the portions of such documents, which by statute, by
designation in such document or otherwise, are not deemed to be filed with the
Commission or are not required to be incorporated herein by reference.
Any statement contained in a document incorporated or deemed to be incorporated
by reference in this Registration Statement shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in this Registration Statement or in any other subsequently
filed document that also is, or is deemed to be, incorporated by reference in
this Registration Statement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
General Corporation Law
The Company is incorporated under the laws of the State of Delaware. Section 145
("Section 145") of the General Corporation Law of the State of Delaware
("Delaware Law"), inter alia, provides that a Delaware corporation:
(i) May indemnify any person who was, is 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 such corporation), by
reason of the fact that such person is or was an officer, director,
employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent
of another corporation or enterprise. The indemnity may include
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such person
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and, with respect to
any criminal action or proceeding, if he had no reasonable cause to
believe that his conduct was illegal; and
(ii) May indemnify any person who is, was 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 by reason of the fact that such person
was a director, officer, employee or agent of such corporation, or is
or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees) actually
and reasonably incurred by any such person in connection with the
defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and that no
indemnification is permitted without judicial approval if the officer,
director, employee or agent is adjudged to be liable to the
corporation.
Where an officer, director, employee or agent is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against expenses (including attorneys' fees) actually and
reasonably incurred in connection therewith.
The determination that indemnity is proper in the circumstances, because the
director or officer has met the applicable standard of conduct, shall be made in
each specific case by a majority of the directors who are not parties to the
action, by a committee of directors designated by a majority of such non-party
directors, by independent legal counsel in a written opinion (if there are no
non-party directors or at the request of a majority of the non-party directors)
or by a majority vote of the outstanding shares of Common Stock.
The indemnification and advancement of expenses authorized by Section 145 is not
exclusive of other such rights under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, and a corporation is expressly
authorized to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise, against any liability asserted
against him and incurred by him in any such capacity, arising out of his status
as such, whether or not the corporation would otherwise have the power to
indemnify him under Section 145.
Section 102(b)(7) of Delaware Law enables a corporation, by provision in its
Certificate of Incorporation, to limit or eliminate the personal liability of a
director to the corporation and its stockholders for breach of fiduciary duty,
except with respect to (i) any breach of the duty of loyalty to the Company or
its stockholders, (ii) any act or omission not in good faith or which involved
intentional misconduct or a knowing violation of law, (iii) certain transactions
under Section 174 of Delaware Law, which concerns unlawful payments of
dividends, stock purchases or redemptions or (iv) any transaction from which the
director receives a personal benefit in money, property or services to which the
director is not legally entitled.
Certificate of Incorporation
As permitted by Section 145, Article Tenth of the Company's Certificate of
Incorporation, as amended (the "Charter"), provides that any director or officer
of the Company or any person who is or was serving, at the request of the
Company, as a director, officer, employee or agent of another corporation or
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, shall be indemnified and held harmless by
the Company to the fullest extent permitted by Delaware 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 the Company to provide broader
indemnification rights than Delaware Law permitted the Company to provide prior
to amendment).
Such indemnification extends to any expense, liability or loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by the indemnified person.
Article Tenth also provides for the advancement of expenses to be incurred in
connection with the defense of any claim; provided, however, that if Delaware
Law so requires, an advancement of expenses in connection with a claim made with
respect to service as a director or officer will be provided only if the
indemnified director or officer undertakes in writing to repay all amounts
advanced if it is ultimately determined by final judicial decision that he is
not entitled to be indemnified for such expenses.
The right to indemnification under Article Tenth is not exclusive of any other
right the indemnified person may have or acquire under any statute, agreement,
vote of stockholders or otherwise, to the extent permitted by Delaware Law.
Finally, Article Tenth provides that the Company may grant to any employee or
agent to the fullest extent permitted by Delaware Law the rights of
indemnification and advancement of expenses available to directors and officers
under Article Tenth.
As permitted by Section 102(b)(7), Article Eleventh of the Charter provides that
no director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty except with
respect to (i) any breach of the duty of loyalty to the Company or its
stockholders, (ii) any act or omission not in good faith or which involved
intentional misconduct or a knowing violation of law, (iii) certain transactions
under Section 174 of Delaware Law, which concerns unlawful payments of
dividends, stock purchases or redemptions or (iv) any transaction from which the
director derived an improper personal benefit.
Insurance
The Company also maintains insurance covering certain liabilities of the
directors and the elected and appointed officers of the Company and its
subsidiaries, including liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See the Exhibit Index at Page E-1 of this Registration Statement.
Item 9. Undertakings
A. 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;
(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 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 percent 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) do not apply if the
Registration Statement is on Form S-8 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Sections 13(a) or 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 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.
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 described under Item 6
above, 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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in Fairlawn, Ohio, as of the 8th day of June, 2005.
CENTRAL FEDERAL CORPORATION
By: /s/ Eloise L. Mackus
-----------------------
Eloise L. Mackus, Secretary
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on June 8, 2005.
SIGNATURE TITLE
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/s/David C. Vernon Chairman of the Board
-------------------------
David C. Vernon
/s/Mark S. Allio Vice Chairman of the Board; President
------------------------- and Chief Executive Officer (principal
Mark S. Allio executive officer)
/s/Therese Ann Liutkus Treasurer and Chief Financial Officer
------------------------- (principal financial officer and
Therese Ann Liutkus principal accounting officer)
/s/Jeffrey W. Aldrich Director
-------------------------
Jeffrey W. Aldrich
/s/Thomas P. Ash Director
-------------------------
Thomas P. Ash
/s/William R. Downing Director
-------------------------
William R. Downing
/s/Gerry W. Grace Director
-------------------------
Gerry W. Grace
/s/Jerry F. Whitmer Director
-------------------------
Jerry F. Whitmer
CENTRAL FEDERAL CORPORATION
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT NAME
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4.1 Certificate of Incorporation of Central Federal Corporation
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form SB-2 No. 333-64089 filed with the
Commission on September 23, 1998)
4.2 Bylaws of Central Federal Corporation (incorporated by reference
to Exhibit 3.2 to the Company's Registration Statement on Form
SB-2 No. 333-64089 filed with the Commission on September 23,
1998)
4.3 Form of Stock Certificate of Central Federal Corporation
(incorporated by reference to Exhibit 4.0 to the Company's
Registration Statement on Form SB-2 No. 333-64089 filed with the
Commission on September 23, 1998)
23 Consent of Independent Registered Public Accounting Firm
24 Power of Attorney
E-1