As filed
with the Securities and Exchange Commission on June 7, 2010
Registration
No. 333-__________________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
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OHIO
LEGACY CORP
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(Exact
name of registrant as specified in its
charter)
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Ohio
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34-1903890
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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600
South Main Street, North Canton, Ohio
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44720
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(Address
of Principal Executive Offices
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(Zip
Code)
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Ohio
Legacy Corp 2010 Cash and Equity Incentive Plan
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(Full
title of the plan)
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Copy
to:
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Rick
L. Hull
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Jason
L. Hodges, Esq.
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Ohio
Legacy Corp
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Vorys,
Sater, Seymour and Pease LLP
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600
South Main Street
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Suite
2000, Atrium Two
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North
Canton, Ohio 44720
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221
E. Fourth Street
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(Name
and address of agent for service)
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Cincinnati,
Ohio 45202
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(330)
244-2985
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(Telephone
number, including area code, of agent for
service)
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Indicate
by checkmark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a small reporting company. See the
definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer
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£
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Accelerated
filer
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£
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Non-accelerated
filer
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£
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Smaller
reporting company
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R
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Tile of securities
to be registered
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Amount to be
registered (1)
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Proposed maximum
offering price
per share (2)
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Proposed maximum
aggregate offering
price (2)
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Amount of
Registration
fee
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Common
Shares, without par value
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2,000,000
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$
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2.58
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$
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5,160,000
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$
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367.91
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(1)
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In
addition, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number
of additional common shares that may become issuable under the terms of
the Ohio Legacy Corp 2010 Cash and Equity Incentive Plan to prevent
dilution resulting from any stock split, stock dividend, recapitalization
or other similar transaction or adjustment affecting the common
shares.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, and
computed on the basis of $2.58 per share, which is the average of the high
and low sales prices of the common shares as reported on the NASDAQ Stock
Market on June 3, 2010.
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Index to
Exhibits appears on page II-6.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I of Form S-8 will
be sent or given to participants in the Ohio Legacy Corp 2010 Cash and Equity
Incentive Plan (the “Plan) as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended (the “Securities Act”). Such documents are
not being filed with the Securities and Exchange Commission (the “Commission”)
either as part of this Registration Statement on Form S-8 (this “Registration
Statement”) or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. Such documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
.
Ohio
Legacy Corp (the “Registrant”) hereby incorporates into this Registration
Statement the following documents filed by the Registrant with the
Commission:
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•
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The
Registrant’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2009 filed by the Registrant on March 31,
2010;
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•
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The
Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2010 filed by the Registrant on May 17,
2010;
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•
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The
Registrant’s Current Reports on Form 8-K filed by the Registrant with the
Commission on February 22, 2010, February 25, 2010, March 22, 2010, March
26, 2010, April 16, 2010 and May 20, 2010;
and
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•
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The
description of the Registrant’s common shares, without par value,
appearing under the caption “Description of Securities” contained in the
Registrant’s Registration Statement on Form SB-2 (Registration No.
333-38328) filed by the Registrant with the Commission on June 1, 2000, or
contained in any subsequent amendment or report filed for the purpose of
updating such description.
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All
documents which may be filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall also be deemed to be incorporated herein by reference and to be made a
part hereof from the date of filing of such documents. Information
furnished to the Commission by the Registrant under any Current Report on Form
8-K shall not be incorporated by reference into this Registration
Statement.
Any
statement contained in this Registration Statement or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
earlier statement. Any 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
.
Under Section 1701.13(E) of the Ohio
Revised Code (the “ORC”), directors, officers, employees and agents of Ohio
corporations have an absolute right to indemnification for expenses (including
attorneys’ fees) actually and reasonably incurred by them in connection with any
action, suit or proceeding to the extent they are successful in defense of the
action, suit or proceeding, including derivative actions, brought against them,
or in defense of any claim, issue or matter asserted in any such action, suit or
proceeding. A director, officer, employee or agent is entitled to
such indemnification if such person’s success is “on the merits or
otherwise.”
Section 1701.13(E) of the ORC permits a
corporation to indemnify directors, officers, employees or agents of the
corporation or individuals who are or were serving at the request of the
corporation as a director, trustee, officer, employee, member, manager or agent
of another corporation or entity in circumstances where indemnification is not
mandated by the statute if certain statutory standards are
satisfied. A corporation may grant indemnification in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
investigative or administrative, other than derivative actions, if the
indemnitee acted in good faith and in a manner the indemnitee reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe the indemnitee’s conduct was unlawful. Such indemnification is permitted
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the indemnitee in connection
with the action, suit or proceeding. A corporation may also provide
indemnification in derivative actions for expenses (including attorney’s fees)
actually and reasonably incurred in connection with the defense or settlement of
an action or suit if the officer, director, employee or agent acted in good
faith and in a manner such person reasonably believed to be in, or not opposed
to, the best interests of the corporation. Ohio law does not
expressly authorize indemnification against judgments, fines and amounts paid in
settlement of derivative actions. A corporation may not indemnify a
director, officer, employee or agent in derivative actions for expenses
(including attorney’s fees) if such person is adjudged to be liable for
negligence or misconduct in the performance of such person’s duties to the
corporation unless, and only to the extent that, a court determines that,
despite the adjudication of liability, but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity as the
court deems proper. In addition, a corporation may not indemnify a
director in any action or suit in which the only liability asserted against the
director is for approving unlawful loans, dividends or distribution of assets
under Section 1701.95 of the ORC.
Under Section 1701.13(E) of the ORC, a
corporation is generally required to pay expenses (including attorney’s fees)
incurred by a director in defending an action, suit or proceeding as they are
incurred, in advance of the final disposition of the action, suit or proceeding,
upon receipt of an undertaking by such director to reasonably cooperate with the
corporation concerning the action, suit or proceeding and to repay such amount
if it proved by clear and convincing evidence that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the corporation or with reckless disregard for the best interests of the
corporation. Section 1701.13(E) of the ORC also permits a corporation
to pay expenses (including attorney’s fees) incurred by a director, officer,
employee or agent as they are incurred, in advance of the final disposition of
the action, suit or proceeding, as authorized by the corporation’s directors and
upon receipt of an undertaking by such person to repay such amount if it is
ultimately determined that such person is not entitled to
indemnification.
Section 1701.13(E) of the ORC states
that the indemnification provided thereby is not exclusive of, and is in
addition to, any other rights granted to persons seeking indemnification under
the corporation’s articles or regulations, any agreement, a vote of the
corporation’s shareholders or disinterested directors or otherwise.
Section 1701.13(E) of the ORC grants
express power to a corporation to purchase and maintain insurance or furnish
similar protection, including, but not limited to, trust funds, letters of
credit and self-insurance, for director, officer, employee or agent liability,
regardless of whether that individual is otherwise eligible for indemnification
by the corporation.
Section
29 of the Registrant’s Code of Regulations governs indemnification by the
Registrant and provides as follows:
Section
29.
Indemnification of
Directors and Officers
. The Corporation shall indemnify
directors or former directors, and may indemnify any officer or former officer
of the Corporation and any person who is or has served at the request of the
Corporation as director, officer or trustee of another corporation, partnership,
joint venture, trust or other enterprise (and his heirs, executors and
administrators), against expenses, including attorneys’ fees, judgments, fines
and amounts paid in settlement, actually and reasonably incurred by him by
reason of the fact that he is or was such director, officer or trustee in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative to the fullest extent
permitted by, and according to the procedures and requirements set forth in, the
Ohio General Corporation Law as the same may be in effect from time to
time. The indemnification provided for herein shall not be deemed to
restrict the right of the Corporation to (i) indemnify employees, agents and
others as permitted by such Law, (ii) purchase and maintain insurance or provide
similar protection on behalf of directors, officers or such other persons
against liabilities asserted against them or expenses incurred by them arising
out of their service to the Corporation as contemplated herein, and (iii) enter
into agreements with such directors, officers, employees, agents or others
indemnifying them against any and all liabilities (or such lesser
indemnification as may be provided in such agreements) asserted against them or
incurred by them arising out of their service to the Corporation as contemplated
herein. The Corporation shall pay directors or former directors, and
may pay any officer or former officer of the Corporation and any person who is
or has served at the request of the Corporation as director, officer or trustee
of another corporation, partnership, joint venture, trust or other enterprise
(and his heirs, executors and administrators) expenses in defending the action,
suit, or proceeding as they are incurred, in advance of the final disposition of
the action, suit, or proceeding, upon receipt of an undertaking by or on behalf
of such person in which he agrees (a) to repay such amount if it is proved by
clear and convincing evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the corporation or undertaken with reckless disregard
for the best interests of the corporation and (b) to reasonably cooperate with
the corporation concerning the action, suit, or proceeding.
In
addition, the Registrant has purchased insurance coverage under policies which
insure directors and officers of the Registrant against certain liabilities
which might be incurred by them in such capacity.
Item 7. Exemption
from Registration Claimed
.
Not
Applicable.
Item
8. Exhibits
.
See the
Index to Exhibits appearing on page II-6 of this Registration Statement, which
is incorporated herein by reference.
Item
9. Undertakings
.
A. The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii)
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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 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
and
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(iii)
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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;
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Provided, however
, that
paragraphs A(1)(i) and A(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
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(2)
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That,
for the purpose of determining any liability under the Securities Act,
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.
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(3)
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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.
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B.
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The
undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
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C.
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Insofar
as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in
Item 6 of this Part II, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such
issue.
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[Signature
page to immediately follow.]
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 the City
of North Canton, State of Ohio, on June 7, 2010.
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OHIO
LEGACY CORP
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By:
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/s/ Rick L. Hull
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Rick
L. Hull
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President
and Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on June 7,
2010.
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Signature
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Title
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/s/
Rick L. Hull
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President
and Chief Executive Officer and Director
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Rick
L. Hull
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(Principal
Executive Officer)
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/s/
Jane Marsh
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Senior
Vice President, Chief Financial Officer and
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Jane
Marsh
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Treasurer
(Principal Financial Officer and Principal
Accounting
Officer)
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*
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Chairman
of the Board and Director
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Wilbur
R. Roat
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*
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Director
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Louis
Altman
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*
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Director
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Robert
F. Belden
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*
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Director
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Bruce
A. Cassidy, Sr.
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*
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Director
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Heather
L. Davis
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*
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Director
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J.
Edward Diamond
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*
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Director
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Denise
M. Penz
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*
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Director
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Michael
S. Steiner
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*
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Director
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Frank
P. Wenthur
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*
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Director
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David
B. Wurster
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* The
above-named directors of the Registrant sign this Registration Statement by Rick
L. Hull, their attorney-in-fact, pursuant to the Power of Attorney signed by
each of the above-named directors, which Power of Attorney is filed as an
exhibit to this Registration Statement.
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By:
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/s/ Rick L. Hull
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Rick
L. Hull, Attorney-in-Fact
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INDEX TO
EXHIBITS
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Exhibit No.
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Description
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Location
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4.1
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Second
Amended and Restated Articles of Incorporation of Ohio Legacy
Corp
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Incorporated
by reference to Exhibit 3.1 to Ohio Legacy Corp’s Quarterly Report on Form
10-QSB for the fiscal quarter ended June 30, 2003 (File No.
0-31673).
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4.2
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Amendment
to Article Fourth of the Second Amended and Restated Articles of
Incorporation of Ohio Legacy Corp
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Incorporated
by reference to Exhibit 3.2 to Ohio Legacy Corp’s Annual Report on Form
10-K for the fiscal year ended December 31, 2009 (File No.
0-31673).
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4.3
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Code
of Regulations of Ohio Legacy Corp
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Incorporated
by reference to Exhibit 3.2 to Ohio Legacy Corp’s Annual Report on Form
10-KSB for the fiscal year ended December 31, 2003 (File No.
0-31673).
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4.4
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Amendment
No. 1 to Code of Regulations of Ohio Legacy Corp
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Incorporated
by reference to Exhibit 3.2 to Ohio Legacy Corp’s Annual Report on Form
10-KSB for the fiscal year ended December 31, 2003 (File No.
0-31673).
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5.1
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Opinion
of Vorys, Sater, Seymour and Pease LLP
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Filed
herewith.
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10.1
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Ohio
Legacy Corp 2010 Cash and Equity Incentive Plan
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Incorporated
by reference to Exhibit 10.1 to Ohio Legacy’s Current Report on Form 8-K
filed May 20, 2010 (File No. 0-31673).
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23.1
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Consent
of Crowe Horwath LLP
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Filed
herewith.
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23.2
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Consent
of Vorys, Sater, Seymour and Pease LLP
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Included
in Exhibit 5.1.
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24.1
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Powers
of Attorney
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Filed
herewith.
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