As filed with the Securities and Exchange Commission on March 30, 2004
Registration No. 333-
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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 articles of incorporation)
DELAWARE 34-1877137
(state or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
601 MAIN STREET
WELLSVILLE, OHIO 43968
(330) 532-1517
(Address, including zip code, and telephone
number, including area code, of registrant's principal executive offices)
CENTRAL FEDERAL BANK
EMPLOYEES' SAVINGS & PROFIT SHARING PLAN AND TRUST
(Full Title of the Plan)
ELOISE L. MACKUS COPIES TO:
SENIOR VICE PRESIDENT, GENERAL COUNSEL JOHN R. HALL, ESQ.
AND SECRETARY
CENTRAL FEDERAL CORPORATION SUZANNE A. WALKER, ESQ.
2841 RIVIERA DRIVE, SUITE 300 MULDOON MURPHY FAUCETTE & AGUGGIA LLP
FAIRLAWN, OHIO 44333-3413 5101 WISCONSIN AVENUE, N.W.
(330) 666-7979 WASHINGTON, DC 20016
(Name, address, including zip code, (202) 362-0840
and telephone number, including
area code, of agent for service)
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, check the following box. [X]
Title of each Class of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Per Aggregate Offering Registration
Registered Registered(1) Share Price(2) Fee
---------------------- ------------- ------------------ ------------------ ------------
Common Stock
$.01 par Value 14,545 Shares $13.75 (3) $200,000 $26.00
Participation
Interests (4) (5)
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Central Federal Bank Employees' Savings & Profit Sharing Plan and Trust
(the "Plan"), as a result of a stock split, stock dividend or similar
adjustment of the outstanding common stock of Central Federal Corporation
(the "Common Stock") pursuant to 17 CFR Section 230.416(a).
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Pursuant to Rule 457(c) under the Securities Act of 1933, as amended (the
"Securities Act"), the price per share is the average trading price of the
common stock, $.01 par value per share (the "Common Stock"), of Central
Federal Corporation (the "Registrant"), as reported on the Nasdaq National
Market on March 22, 2004.
(4) In addition, pursuant to 17 C.F.R. Section 230.416(c), this registration
statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein based upon the
maximum amount that could be issued under the plan pursuant to 17 C.F.R.
Section 230.457(h).
(5) In accordance with 17 C.F.R. Section 230.457(h), where securities are to be
offered pursuant to an employee benefit plan, the aggregated offering price
and the amount of the registration fee shall be computed with respect to
the maximum number of shares of Common Stock that may be purchased with the
current assets of such Plan. Accordingly no separate fee is required for
the participation interests.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SECTION 230.462.
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CENTRAL FEDERAL CORPORATION
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the Central Federal
Corporation Employees' Savings & Profit Sharing Plan and Trust (the "Plan")
specified by Part I of this Registration Statement will be sent or given to the
participants in the Plan as specified by Rule 428(b)(1). Such documents need not
be filed with the Securities and Exchange Commission (the "SEC") either as a
part of this Registration Statement or as a prospectus or prospectus supplement
pursuant to Rule 424 in reliance on Rule 428. Such documents and the information
incorporated by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed by Central Federal
Corporation (the "Registrant" or the "Corporation") with the SEC are
incorporated by reference in this Registration Statement:
(a) The Form 10-KSB filed by the Registrant (File No. 0-25045)
with the SEC on March 30, 2004, which includes the consolidated balance sheets
of Central Federal Corporation and subsidiary as of December 31, 2003 and 2002,
and the related consolidated statements of operations, comprehensive income
(loss), changes in shareholders' equity, and cash flows for each of the three
years ended December 31, 2003, together with the related notes and the report of
Crowe Chizek and Company LLC.
(b) The Forms 10-QSB filed by the Registrant for the fiscal
quarters ended March 31, 2003, June 30, 2003 and September 30, 2003 (File No.
0-25045), filed with the SEC on May 20, 2003, August 19, 2003, and November 14,
2003, respectively.
(c) The description of Registrant's Common Stock contained in
Registrant's Form 8-A12G (File No. 0-25045) dated November 6, 1998, pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange Act").
(d) All documents filed by the Registrant and the Plan, where
applicable, pursuant to Section 13(a) and (c), 14 or 15(d) of the Exchange Act
after the date hereof and prior to the filing of a post-effective amendment
which deregisters all securities then remaining unsold.
(e) The Plan's annual report on Form 11-K for the fiscal year
ended December 31, 2003, filed with the SEC on March 30, 2004.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered pursuant to the Plan has been registered
pursuant to Section 12(g) of the Exchange Act. Accordingly, a description of the
Common Stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND PLAN ADMINISTRATOR
The Registrant shall indemnify its directors and employees in
accordance with the following provision from the Registrant's Certificate of
Incorporation:
ARTICLE 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 the
Corporation or is or was serving at the request of the Corporation 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 the Corporation 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 the Corporation to provide
broader indemnification rights than such law permitted the Corporation 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, the Corporation 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
the Corporation.
B. The right to indemnification conferred in Section A of this Article
TENTH shall include the right to be paid by the Corporation 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 the Corporation 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 the Corporation within sixty days after a written claim has been
received by the Corporation, 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 the Corporation 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 the Corporation 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 the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation 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 the Corporation (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 the Corporation (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 the Corporation 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 the
Corporation.
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, the Corporation's
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect
itself and any Director, Officer, employee or agent of the Corporation or
subsidiary or Affiliate or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law.
F. The Corporation 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 the Corporation 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 the Corporation.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED
None.
ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-K):
No. Exhibit
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10 Central Federal Bank Employees' Savings & Profit Sharing Plan and Trust
23.1 Consent of Crowe Chizek and Company LLC
24 Power of attorney (see signature pages)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Central Federal
Corporation hereby 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 Akron, Ohio on March 30, 2004.
CENTRAL FEDERAL CORPORATION
By: /s/ Eloise L. Mackus
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Eloise L. Mackus
Secretary
The undersigned directors and officers of Central Federal Corporation (the
"Company") hereby constitute and appoint Eloise L. Mackus with full power of
substitution and resubstitution, as attorney of the undersigned, to execute and
file under the Securities Act of 1933 a registration statement on Form S-8 to
register certain shares of the Company's Common Stock which may be issued
pursuant to the Central Federal Bank Employees' Savings & Profit Sharing Plan
and Trust, and any and all amendments and exhibits thereto and any and all
applications or other documents to be filed with the Securities and Exchange
Commission, pertaining to such registration statement, with full power and
authority to do and perform any and all acts and things whatsoever necessary,
appropriate or desirable to be done in the premises, or in the name, place and
stead of the said directors and officers, hereby ratifying and approving the
acts of said attorney.
Dated the 30th day of March, 2004, unless otherwise indicated.
SIGNATURE TITLE
/s/ David C. Vernon Chairman, President and Chief Executive Officer
------------------------- (principal executive officer)
David C. Vernon
/s/ Therese A. Liutkus Chief Financial Officer
------------------------- (principal financial officer and
Therese A. Liutkus principal accounting officer)
/s/ Jeffrey W. Aldrich Director
-------------------------
Jeffrey W. Aldrich
/s/ Thomas P. Ash Director
-------------------------
Thomas P. Ash
/s/ W. R. Downing Director
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W. R. Downing
/s/ Gerry W. Grace Director
-------------------------
Gerry W. Grace
/s/ Jerry F. Whitmer Director
-------------------------
Jerry F. Whitmer
/s/ Mark S. Allio Director
-------------------------
Mark S. Allio