As filed
with the Securities and Exchange Commission on January 21, 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
FINANCIAL BANCORP.
(Exact
Name of Registrant as Specified in Its Charter)
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Ohio
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31-1042001
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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First
Financial Bancorp.
4000
Smith Road
Cincinnati,
Ohio 45209
(513)
979-5837
(Address,
including zip code, and telephone number,
including
area code, of Registrant’s principal executive offices)
Gregory
A. Gehlmann
Senior
Vice President and General Counsel
First
Financial Bancorp.
4000
Smith Road
Cincinnati,
Ohio 45209
(513) 979-5772
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies
to:
Aaron
A. Seamon, Esq.
Squire,
Sanders & Dempsey L.L.P.
221
E. 4th Street Suite 2900
Cincinnati,
Ohio 45202
(513) 361-1200
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this registration statement.
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, as
amended (the “Securities Act”), other than securities offered only in connection
with 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 thereto 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):
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Large
accelerated filer o
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Accelerated
filer þ
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Smaller
reporting company o
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(Do
not check if a smaller reporting
company)
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CALCULATION
OF REGISTRATION FEE
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Amount
to
be
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Proposed
Maximum
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Proposed
Maximum
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Amount
of
Registration
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Title
of Each Class of
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Registered
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Offering
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Aggregate
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Fee
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Securities
to be Registered
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Price
Per Share(3)
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Offering
Price(3)
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Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, without par value per
share
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80,000 |
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$ |
1,000 |
(1) |
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$ |
80,000,000 |
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$ |
3,144 |
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Warrant
to Purchase Common Shares, without par value per share, and underlying
Common Shares (2)
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930,233 |
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$ |
12.90 |
(3) |
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$ |
12,000,006 |
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$ |
472 |
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Total:
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$ |
92,000,006 |
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$ |
3,616 |
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(1)
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Calculated
in accordance with Rule 457(a) and includes such additional number of
shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A, of a
currently indeterminable amount, as may from time to time become issuable
by reason of stock splits, stock dividends or similar
transactions.
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(2)
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In
addition to the Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
there are being registered hereunder (a) a warrant for the purchase of
930,233 common shares with an initial per share exercise price of $12.90,
(b) the 930,233 common shares issuable upon exercise of such warrant and
(c) such additional number of common shares, of a currently indeterminable
amount, as may from time to time become issuable by reason of stock
splits, stock dividends and certain antidilution provisions set forth in
such warrant, which shares of common stock are registered hereunder
pursuant to Rule 416.
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(3)
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Calculated
in accordance with Rule 457(i) with respect to the per share exercise
price of the warrant of $12.90.
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______________________
We
hereby amend this Registration Statement on such date or dates as may be
necessary to delay its effective date until we 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 the Registration Statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a),
may determine.
| The information in
this prospectus is not complete and may be changed. The selling
securityholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective.
This prospectus is not an offer to sell these securities and is not
soliciting an offer to buy these securities in any state or
jurisdiction where the offer or sale is not
permitted. |
SUBJECT
TO COMPLETION, DATED JANUARY 21, 2009
PROSPECTUS
First
Financial Bancorp.
Fixed
Rate Cumulative Perpetual Preferred Stock, Series A
Warrant
to Purchase 930,233 Common Shares
930,233
Common Shares
________________
This
prospectus relates to the potential resale from time to time by selling
securityholders of some or all of the shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series A, which we refer to as our Series A preferred
stock, a warrant to purchase 930,233 of our common shares, which we also refer
to as common stock, issuable from time to time upon exercise of the warrant. In
this prospectus, we refer to the Series A preferred stock, the warrant and the
shares of common stock issuable upon exercise of the Warrant, collectively, as
the securities. The Series A preferred stock and the Warrant were originally
issued by us pursuant to the Letter Agreement dated December 23, 2008,
incorporating the terms of the Securities Purchase Agreement — Standard Terms,
between us and the United States Department of the Treasury, which we refer to
as 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 any sale of the securities by the selling
securityholders.
The
Series A preferred stock is not listed on an exchange, and, unless requested by
the initial selling securityholder, we do not intend to list the Series A
preferred stock on any exchange.
Our
common stock is listed on the Nasdaq Global Select Market under the symbol
“FFBC.” On January 20, 2009, the last reported sale price of our common stock on
the Nasdaq Global Select Market was $8.18 per share. You are urged to obtain
current market quotations of the common stock.
Investing
in the securities involves a high degree of risk. See the section
entitled “Risk Factors” on page 3 of this prospectus and in the documents we
filed with the Securities and Exchange Commission that are incorporated in this
prospectus by reference for certain risks and uncertainties you should
consider.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy of this
prospectus. Any representation to the contrary is a criminal offense in the
United States.
These
securities are unsecured and are not deposits and are not insured by the Federal
Deposit Insurance Corporation or any other governmental agency.
________________
This
prospectus is
dated ,
2009.
TABLE
OF CONTENTS
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Page
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About this Prospectus
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1
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Where You Can Find More
Information
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1
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Special Cautionary Notice Regarding
Forward-Looking Statements
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2
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First Financial Bancorp.
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3
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Risk Factors
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3
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Use of Proceeds
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3
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Ratios of Earnings to Fixed Charges and Preferred
Dividends
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3
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Description of Series A Preferred
Stock
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3
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Description of Warrant to Purchase Common
Stock
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8
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Description of Common Stock
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9
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Anti-Takeover Effects of Certain Articles of
Incorporation Provisions
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10
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Plan of Distribution
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12
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Selling Securityholders
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13
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Validity of Securities
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14
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Experts
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14
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with
the Securities and Exchange Commission (the “SEC”) using a “shelf” registration
process. Under this process, the selling securityholders may, from time to time,
offer and sell, in one or more offerings, the securities described in this
prospectus.
You
should rely only on the information contained in this prospectus. We have not
authorized anyone to provide you with information different from that contained
in this prospectus. This prospectus is offering to sell, and is seeking offers
to buy, the securities only in jurisdictions where offers and sales are
permitted. The information contained in this prospectus is accurate only as of
the date of this prospectus.
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, the “company,” “we,” “us,” “our,” and “FFBC” refer to First
Financial Bancorp. and its consolidated subsidiaries, collectively.
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document that we file at the SEC’s
public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference room.
Our SEC filings are also available to the public from the SEC’s website at
http://www.sec.gov.
The SEC
allows us to incorporate by reference the information we file with it, which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is considered to be
part of this prospectus, and later information that we file with the SEC will
automatically update and supersede this information. We incorporate by reference
the following documents listed below and any future filings (other than current
reports or portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K)
made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act,
prior to the termination of the offering:
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Annual
Report on Form 10-K for the year ended December 31,
2007;
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Quarterly
Report on Form 10-Q for the quarters ended March 31, 2008, June 30, 2008,
and September 30, 2008; and
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Current
Reports on Form 8-K filed on February 25, 2008, October 1, 2008 (on Form
8-K/A), October 20, 2008, December 8, 2008, December 24, 2008, and
December 30, 2008.
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You may
request a copy of these filings, at no cost, by writing or telephoning us at the
following address:
First
Financial Bancorp.
4000
Smith Rd., Suite 400
Cincinnati,
OH 45209
Telephone:
(513)
979-5837
Attention:
Investor Relations
SPECIAL
CAUTIONARY NOTICE
REGARDING
FORWARD-LOOKING STATEMENTS
Certain
statements contained in this prospectus which are not statements of historical
fact constitute forward-looking statements within the meaning of the Private
Securities Litigation Reform Act (the “Act”). In addition, certain statements in
future filings by us with the SEC, in press releases, and in oral and written
statements made by or with our approval which are not statements of historical
fact constitute forward-looking statements within the meaning of the Act.
Examples of forward-looking statements include, but are not limited to,
projections of revenues, income or loss, earnings or loss per share, the payment
or non-payment of dividends, capital structure and other financial items;
statements of plans and objectives of us or our management or board of
directors; and statements of future economic performance and statements of
assumptions underlying such statements. Words such as “believes,” “anticipates,”
“intends,” and other similar expressions are intended to identify
forward-looking statements but are not the exclusive means of identifying such
statements.
Forward-looking
statements involve risks and uncertainties that may cause actual results to
differ materially from those in such statements. Factors that could cause actual
results to differ from those discussed in the forward-looking statements
include, but are not limited to,
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management’s
ability to effectively execute its business
plan;
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the
risk that the strength of the United States economy in general and the
strength of the local economies in which we conduct operations may be
different than expected resulting in, among other things, a deterioration
in credit quality or a reduced demand for credit, including the resultant
effect on our loan portfolio and allowance for loan and lease
losses;
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the
effects of and changes in policies and laws of regulatory
agencies;
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inflation,
interest rates, market and monetary
fluctuations;
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mergers
and acquisitions;
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our
ability to increase market share and control
expenses;
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our
ability to retain key members of our
organization;
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the
effect of changes in accounting policies and practices, as may be adopted
by the regulatory agencies as well as the Financial Accounting Standards
Board and the SEC;
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monetary
and fiscal policies of the Board of Governors of the Federal Reserve
System and the U.S. Government and other governmental initiatives
affecting the financial services
industry;
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adverse
changes in the securities markets;
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our
ability to manage loan delinquency and charge off rates and changes in
estimation of the adequacy of the allowance for loan
losses;
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the
costs and effects of litigation and of unexpected or adverse outcomes in
such litigation, including settlements and judgments;
and
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our
success at managing the risks involved in the
foregoing.
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Such
forward-looking statements are meaningful only on the date when such statements
are made, and we undertake no obligation to update any forward-looking statement
to reflect events or circumstances after the date on which such a statement is
made to reflect the occurrence of unanticipated events.
FIRST
FINANCIAL BANCORP.
We are a
Cincinnati, Ohio based bank holding company with $3.5 billion in assets. Our
banking subsidiary, First Financial Bank, N.A., founded in 1863, provides retail
and commercial banking products and services, and investment and insurance
products through its 80 retail banking locations in Ohio, Kentucky and Indiana.
The bank’s wealth management division, First Financial Wealth Resource Group,
provides investment management, traditional trust, brokerage, private banking,
and insurance services, and has approximately $1.92 billion in assets under
management.
Our
principal executive offices are located at 4000 Smith Road, Cincinnati, Ohio
45209 and our telephone number at that address is (513) 979-5837. We
maintain an Internet website at www.bankatfirst.com.
We are not incorporating the information on our website into this prospectus,
and neither this website nor the information on this website is included or
incorporated in, or is a part of, this prospectus.
RISK
FACTORS
An
investment in our securities involves significant risks. You should carefully
consider the risks described under “Risk Factors” in our most recent Annual
Report on Form 10-K, and in our updates to those Risk Factors in our Quarterly
Reports on Form 10-Q, together with all of the other information appearing in
this prospectus or incorporated by reference into this prospectus, in light of
your particular investment objectives and financial circumstances. In addition
to those risk factors, there may be additional risks and uncertainties of which
management is not aware or focused on or that management deems immaterial. Our
business, financial condition or results of operations could be materially
adversely affected by any of these risks. The trading price of our securities
could decline due to any of these risks, and you may lose all or part of your
investment.
USE
OF PROCEEDS
All of
the securities offered pursuant to this prospectus are being offered by the
selling securityholders listed under “Selling Securityholders.” We will not
receive any proceeds from any sale of the securities by the selling
securityholders.
RATIOS
OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
Our
consolidated ratio of earnings to fixed charges for each of the periods
indicated is as follows:
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Nine
Months Ended September
30,
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Years Ended December 31,
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2008
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2007
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2007
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2006
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2005
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2004
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2003
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Ratio
of Earnings to Fixed Charges :
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Excluding
interest on deposits
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6.01 |
x |
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6.62 |
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7.13 |
x |
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3.94 |
x |
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3.75 |
x |
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4.10 |
x |
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4.07 |
x |
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Including
interest on deposits
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1.59 |
x |
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1.57 |
x |
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1.61 |
x |
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1.38 |
x |
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1.77 |
x |
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2.07 |
x |
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1.90 |
x |
Prior to
December 23, 2008, we had no shares of preferred stock outstanding.
Consequently, the ratios of earnings to fixed charges and preferred dividends
are the same as the ratios of earnings to fixed charges for the same periods
listed above. For the purpose of computing the ratios of earnings to fixed
charges, earnings consist of consolidated income from continuing operations
before income tax expense and fixed charges. Fixed charges exclude interest on
uncertain tax positions which is classified with income tax expense in the
consolidated financial statements.
DESCRIPTION
OF SERIES A PREFERRED STOCK
The
following is a brief description of the terms of the Series A preferred 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 articles of incorporation,
as amended (the “Articles of Incorporation”), including the Certificate of
Amendment to the Articles of Incorporation with respect to the Series A
preferred stock that have been filed with the SEC and are also available upon
request from us.
General
Under our
Articles of Incorporation, we have authority to issue up to 80,000 shares of
preferred stock, without par value per share, designated as Fixed Rate
Cumulative Perpetual Preferred Stock, Series A. All of said shares of Series A
preferred stock were issued to the initial selling security holder in a
transaction exempt from the registration requirements of the Securities Act. The
issued and outstanding shares of Series A preferred stock are validly issued,
fully paid, and non assessable.
Dividends
Payable On Shares of Series A Preferred Stock
Holders
of shares of Series A preferred stock are entitled to receive if, as and when
declared by our board of directors, out of legally available funds, cumulative
cash dividends at a rate per annum of 5% per share on a liquidation preference
of $1,000 per share of Series A preferred stock with respect to each dividend
period from December 23, 2008 to, but excluding, February 15, 2014. From and
after February 15, 2014, holders of shares of Series A preferred stock are
entitled to receive cumulative cash dividends at a rate per annum of 9% per
share on a liquidation preference of $1,000 per share of Series A preferred
stock with respect to each dividend period thereafter.
Dividends
are payable quarterly in arrears on each February 15, May 15, August 15 and
November 15 (each a “dividend payment date”), starting with February 15, 2009.
If any dividend payment date is not a business day, then the next business day
will be the applicable dividend payment date, and no additional dividends will
accrue as a result of the applicable postponement of the dividend payment date.
Dividends payable during any dividend period are computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends payable with respect
to Series A preferred stock are payable to holders of record of shares of Series
A preferred stock on the date that is 15 calendar days immediately preceding the
applicable dividend payment date or such other record date as the board of
directors or any duly authorized committee of the board determines, so long as
such record date is not more than 60 nor less than 10 days prior to the
applicable dividend payment date.
If we
determine not to pay any dividend or a full dividend with respect to the Series
A preferred stock, we are required to provide written notice to the holders of
shares of Series A preferred stock prior to the applicable dividend payment
date.
We are
subject to various regulatory policies and requirements relating to the payment
of dividends, including requirements to maintain adequate capital above
regulatory minimums. The Board of Governors of the Federal Reserve System (the
“Federal Reserve Board”) is authorized to determine, under certain circumstances
relating to the financial condition of a bank holding company, such as us, that
the payment of dividends would be an unsafe or unsound practice and to prohibit
payment thereof.
Priority
of Dividends
With
respect to the payment of dividends and the amounts to be paid upon liquidation,
the Series A preferred stock will rank:
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senior
to our common stock and all other equity securities designated as ranking
junior to the Series A preferred stock;
and
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at
least equally with all other equity securities designated as ranking on a
parity with the Series A preferred stock (“parity stock”), with respect to
the payment of dividends and distribution of assets upon our liquidation,
dissolution or winding-up.
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So long
as any shares of Series A preferred stock remain outstanding, unless all accrued
and unpaid dividends for all prior dividend periods have been paid or are
contemporaneously declared and paid in full, no dividend whatsoever shall be
paid or declared on our common stock or any other shares of junior stock or
parity stock, other than a dividend payable solely in common stock.
In
addition, we may not purchase, redeem or otherwise acquire for consideration any
shares of our common stock or other junior stock unless we have paid in full all
accrued dividends on the Series A preferred stock for all prior dividend
periods, other than:
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purchases,
redemptions or other acquisitions of our common stock or other junior
stock in connection with the administration of our employee benefit plans
in the ordinary course of business;
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purchases
or other acquisitions by broker-dealer subsidiaries of FFBC solely for the
purpose of market-making, stabilization or customer facilitation
transactions in junior stock or parity stock in the ordinary course of its
business;
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purchases
or other acquisitions by broker-dealer subsidiaries of FFBC for resale
pursuant to an offering by us of our stock that is underwritten by the
related broker-dealer subsidiary;
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redemption
or repurchases of rights pursuant to any shareholders’ rights
plan;
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acquisition
by us of record ownership of junior stock or parity stock for the
beneficial ownership of any other person (other than us), including as
trustees or custodians; and
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the
exchange or conversion of junior stock for or into other junior stock or
of parity stock for or into other parity stock or junior stock, but only
to the extent that such acquisition is required pursuant to binding
contractual agreements entered into before December 23, 2008 or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for common stock.
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If we
repurchase shares of Series A preferred stock from a holder other than the
initial selling securityholder, we must offer to repurchase a ratable portion of
Series A preferred stock then held by the initial selling
securityholder.
On any
dividend payment date for which full dividends are not paid, or declared and
funds set aside therefor, on the Series A preferred stock and any other parity
stock, all dividends paid or declared for payment on that dividend payment date
(or, with respect to parity stock with a different dividend payment date, on the
applicable dividend date therefor falling within the dividend period and related
to the dividend payment date for the Series A preferred stock), with respect to
the Series A preferred stock and any other parity stock shall be declared
ratably among the holders of any such shares who have the right to receive
dividends, in proportion to the respective amounts of the undeclared and unpaid
dividends relating to the dividend period.
Subject
to the foregoing, such dividends (payable in cash, stock or otherwise) as may be
determined by our board of directors may be declared and paid on our common
stock and any other stock ranking equally with or junior to the Series A
preferred stock from time to time out of any funds legally available for such
payment, and the Series A preferred stock shall not be entitled to participate
in any such dividend.
Redemption
The
Series A preferred stock may not be redeemed prior to February 15, 2012 unless
we have received aggregate gross proceeds from one or more qualified equity
offerings (as described below) equal to $20 million, which equals 25% of the
aggregate liquidation amount of the Series A preferred stock on the date of
issuance. In such a case, we may redeem the Series A preferred stock, subject to
the approval of Federal Reserve Board, in whole or in part, upon notice as
described below, up to a maximum amount equal to the aggregate net cash proceeds
received by us from such qualified equity offerings. A “qualified equity
offering” is a sale and issuance for cash by us, to persons other than FFBC or
its subsidiaries after December 23, 2008, of shares of perpetual preferred
stock, common stock or a combination thereof, that in each case qualify as tier
1 capital of FFBC at the time of issuance under the applicable risk-based
capital guidelines of the Federal Reserve Board. Qualified equity offerings do
not include issuances made in connection with acquisitions, issuances of trust
preferred securities and issuances of common stock and/or perpetual preferred
stock made pursuant to agreements or arrangements entered into, or pursuant to
financing plans that were publicly announced, on or prior to October 13,
2008.
After
February 15, 2012, the Series A preferred stock may be redeemed at any time,
subject to the approval of the Federal Reserve Board, in whole or in part,
subject to notice as described below.
In any
redemption, the redemption price shall be an amount equal to the per share
liquidation amount plus accrued and unpaid dividends to but excluding the date
of redemption.
The
Series A preferred stock will not be subject to any mandatory redemption,
sinking fund or similar provisions. Holders of shares of Series A preferred
stock have no right to require the redemption or repurchase of the Series A
preferred stock.
In case
of any redemption of less than all of the shares of the Series A preferred
stock, the shares to be redeemed will be selected either pro rata or in such other
manner as our board of directors may determine to be fair and
equitable.
We will
mail notice of any redemption of the Series A preferred stock by first class
mail, postage prepaid, addressed to the holders of record of the shares of the
Series A preferred stock to be redeemed at their respective last addresses
appearing on our books. This mailing will be at least 30 days and not more than
60 days before the date fixed for redemption. Any notice mailed or otherwise
given as described in this paragraph will be conclusively presumed to have been
duly given, whether or not the holder receives the notice, and failure duly to
give the notice by mail or otherwise, or any defect in the notice or in the
mailing or provision of the notice, to any holder of the Series A preferred
stock designated for redemption will not affect the redemption of any other
shares of Series A preferred stock. Each notice of redemption will set forth the
applicable redemption date, the redemption price, the place where shares of
Series A preferred stock are to be redeemed, and the number of shares of Series
A preferred stock to be redeemed (and, if less than all shares of Series A
preferred stock held by the applicable holder, the number of shares to be
redeemed from the holder).
Shares of
Series A preferred stock that are redeemed, repurchased or otherwise acquired by
us will revert to authorized but unissued shares of our preferred
stock.
Liquidation
Rights
In the
event that we voluntarily or involuntarily liquidate, dissolve or wind up our
affairs, holders of Series A preferred stock will be entitled to receive an
amount per share, referred to as the total liquidation amount, equal to the
fixed liquidation preference of $1,000 per share, plus any accrued and unpaid
dividends, whether or not declared, to the date of payment. Holders of Series A
preferred stock will be entitled to receive the total liquidation amount out of
our assets that are available for distribution to shareholders, after payment or
provision for payment of our debts and other liabilities but before any
distribution of assets is made to holders of our common stock or any other
shares ranking, as to that distribution, junior to the Series A preferred
stock.
If our
assets are not sufficient to pay the total liquidation amount in full to all
holders of Series A preferred stock and all holders of any shares of outstanding
parity stock, the amounts paid to the holders of Series A preferred stock and
other shares of parity stock will be paid pro rata in accordance with
the respective total liquidation amount for those holders. If the total
liquidation amount per share of Series A preferred stock has been paid in full
to all holders of Series A preferred stock and other shares of parity stock, the
holders of our common stock or any other shares ranking, as to such
distribution, junior to the Series A preferred stock will be entitled to receive
all of our remaining assets according to their respective rights and
preferences.
For
purposes of the liquidation rights, neither the sale, conveyance, exchange or
transfer of all or substantially all of our property and assets, nor the
consolidation or merger by us with or into, any other corporation or by another
corporation with or into us, will constitute a liquidation, dissolution or
winding-up of our affairs.
Voting
Rights
Except as
indicated below or otherwise required by law, the holders of Series A preferred
stock will not have any voting rights.
Election of Two Directors upon
Non-Payment of Dividends. If the dividends on the Series A preferred
stock have not been paid for an aggregate of six quarterly dividend periods or
more (whether or not consecutive), the authorized number of directors then
constituting our board of directors will be automatically increased by two.
Holders of Series A preferred stock, together with the holders of any
outstanding parity stock with like voting rights (the “Voting Parity Stock”),
voting as a single class, will be entitled to elect the two additional members
of our board of directors (the “Preferred Stock Directors”), at the next annual
meeting (or at a special meeting called for the purpose of electing the
Preferred Stock Directors prior to the next annual meeting) and at each
subsequent annual meeting until all accrued and unpaid dividends for all past
dividend periods have been paid in full. The election of any Preferred Stock
Director is subject to the qualification that the election would not cause us to
violate the corporate governance requirement of the Nasdaq Stock Market (or any
other exchange on which our securities may be listed) that listed companies must
have a majority of independent directors.
Upon the
termination of the right of the holders of Series A preferred stock and Voting
Parity Stock to vote for Preferred Stock Directors, as described above, the
Preferred Stock Directors will immediately cease to be qualified as directors,
their term of office shall terminate immediately and the number of authorized
directors of FFBC will be reduced by the number of Preferred Stock Directors
that the holders of Series A preferred stock and Voting Parity Stock had been
entitled to elect. The holders of a majority of shares of Series A preferred
stock and Voting Parity Stock, voting as a class, may remove any Preferred Stock
Director, with or without cause, and the holders of a majority of the shares of
Series A preferred stock and Voting Parity Stock, voting as a class, may fill
any vacancy created by the removal of a Preferred Stock Director. If the office
of a Preferred Stock Director becomes vacant for any other reason, the remaining
Preferred Stock Director may choose a successor to fill such vacancy for the
remainder of the unexpired term.
Other Voting Rights. So long
as any shares of Series A preferred stock are outstanding, in addition to any
other vote or consent of shareholders required by law or by our Articles of
Incorporation, as amended, the vote or consent of the holders of at least 66
2/3% of the shares of Series A preferred stock at the time outstanding, voting
separately as a single class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
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any
amendment or alternation of our Articles of Incorporation to authorize or
create or increase the authorized amount of, or any issuance of, any
shares of, or any securities convertible into or exchangeable or
exercisable for shares of, any class or series of capital stock ranking
senior to the Series A preferred stock with respect to payment of
dividends and/or distribution of assets on our liquidation, dissolution or
winding up;
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any
amendment, alternation or repeal of any provision of the Articles of
Incorporation for the Series A preferred stock so as to adversely affect
the rights, preferences, privileges or voting powers of the Series A
preferred stock; or
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any
consummation of a binding share exchange or reclassification involving the
Series A preferred stock or a merger or consolidation of FFBC with another
entity, unless the shares of Series A preferred stock remain outstanding
following any such transaction or, if FFBC is not the surviving entity,
are converted into or exchanged for preference securities and such
remaining outstanding shares of Series A preferred stock or preference
securities have rights, references, privileges and voting powers that are
not materially less favorable than the rights, preferences, privileges or
voting powers of the Series A preferred stock, taken as a
whole.
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To the
extent of the voting rights of the Series A preferred stock, each holder of
Series A preferred stock will have one vote for each $1,000 of liquidation
preference to which such holder’s shares of Series A preferred stock are
entitled.
The
foregoing voting provisions will not apply if, at or prior to the time when the
vote or consent would otherwise be required, all outstanding shares of Series A
preferred stock have been redeemed or called for redemption upon proper notice
and sufficient funds have been set aside by us for the benefit of the holders of
Series A preferred stock to effect the redemption.
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 description is subject to and qualified in its entirety by
reference to the Warrant, a copy of which has been filed with the SEC, and are
also available upon request from us.
Shares
of Common Stock Subject to the Warrant
The
Warrant is initially exercisable for up to 930,233 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
$80 million, 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 one half
of the original number of 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
The
initial exercise price applicable to the Warrant is $12.90 per share of common
stock for which the Warrant may be exercised. The Warrant may be exercised at
any time on or before December 23, 2018 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 exercise price may be paid either by the withholding by us
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.
Rights
as a Shareholder
The
warrantholders shall 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. The initial selling securityholder has agreed not to
exercise any voting rights with respect to common stock issued upon exercise of
the Warrant.
Transferability
The
initial selling securityholder may not transfer any portion of the Warrant with
respect to more than one half of the initial Warrant shares until the earlier of
the date on which we have received aggregate gross proceeds from a qualified
equity offering of at least $80 million and December 31, 2009. The Warrant, and
all rights under the Warrant, are otherwise transferable.
Adjustments
to the Warrant
The
number of shares of our common stock issuable upon exercise of the Warrant
(“Warrant Shares”) and exercise price will be adjusted upon occurrence of
certain events as follows:
Adjustments in Connection with Stock
Splits, Subdivisions, Reclassifications and Combinations. The number of
Warrant Shares will be proportionately adjusted and the exercise price will be
adjusted so that the aggregate exercise price will remain the same after the
number of Warrant Shares is adjusted.
Anti-dilution Adjustment.
Until the earlier of December 23, 2011 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:
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as
consideration for or to fund the acquisition of businesses and/or related
assets;
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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;
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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
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in
connection with the exercise of preemptive rights on terms existing as of
December 23, 2008.
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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
effect 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 FFBC and
requiring shareholder approval, the warrantholder’s right to receive shares of
our common stock upon exercise of the Warrant shall 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 COMMON STOCK
The
following is a brief description of our common shares, which we also refer to in
this prospectus as common 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 applicable provisions of the Ohio General Corporation Law, as
amended (the “OGCL”), and to our Articles of Incorporation, and our amended and
restated regulations, as amended (the “Regulations”), copies of which have been
filed with the SEC and are also available upon request from us, as well as the
description of our common stock which is incorporated by reference herein
through our previous filings with the SEC.
General
We may
issue up to 160,000,000 common shares, without par value per share, of which
37,481,201 shares were outstanding as of January 20, 2009.
Holders
of our common stock are entitled to receive dividends if, as and when declared
by our board of directors out of any funds legally available for dividends.
Holders of our common stock are also entitled, upon our liquidation, and after
claims of creditors and the preferences of the Series A preferred stock, and any
other class or series of preferred stock outstanding at the time of liquidation,
to receive pro rata our
net assets. We pay dividends on our common stock only if we have paid or
provided for all dividends on our outstanding series of preferred stock, for the
then current period and, in the case of any cumulative preferred stock
(including the Series A preferred stock), all prior periods.
Our
Series A preferred stock has, and any other series of preferred stock upon
issuance will have, preference over our common stock with respect to the payment
of dividends and the distribution of assets in the event of our liquidation or
dissolution. Our preferred stock also has such other preferences as currently,
or as may be, fixed by our board of directors.
Holders
of our common stock are entitled to one vote for each share that they hold and
are vested with all of the voting power except as our board of directors has
provided, or may provide in the future, with respect to preferred stock or any
other class or series of preferred stock that the board of directors may
hereafter authorize. Shares of our common stock are not redeemable, and have no
subscription, conversion or preemptive rights.
Our
common stock is listed on the Nasdaq Global Select Market under the symbol
“FFBC.” Outstanding shares of our common stock are validly issued, fully paid
and non-assessable. Holders of our common stock are not, and will not be,
subject to any liability as shareholders.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Registrar and Transfer
Company.
Restrictions
on Ownership
The
Bank Holding Company Act requires any “bank holding company,” as defined in the
Bank Holding Company Act, to obtain the approval of the Federal Reserve Board
prior to the acquisition of 5% or more of our common stock. Any person, other
than a bank holding company, is required to obtain prior approval of the Federal
Reserve Board to acquire 10% or more of our common stock under the Change in
Bank Control Act. Any holder of 25% or more of our common stock, or a holder of
5% or more if such holder otherwise exercises a “controlling influence” over us,
is subject to regulation as a bank holding company under the Bank Holding
Company Act.
ANTI-TAKEOVER
EFFECTS OF CERTAIN ARTICLES OF INCORPORATION PROVISIONS
Our
Articles of Incorporation contain certain provisions that make it more difficult
to acquire control of us by means of a tender offer, open market purchase, a
proxy fight or otherwise. These provisions are designed to encourage persons
seeking to acquire control of us to negotiate with our directors. We believe
that, as a general rule, the interests of our shareholders would be best served
if any change in control results from negotiations with our
directors.
Classification
of Board of Directors
Our
Articles of Incorporation provide for a classified board, to which approximately
one-third of our board of directors is elected each year at our annual meeting
of shareholders. Accordingly, our directors serve three-year terms rather than
one-year terms. The classification of our board of directors has the effect of
making it more difficult for shareholders to change the composition of our board
of directors. At least two annual meetings of shareholders, instead of one, will
generally be required to effect a change in a majority of our board of
directors. Such a delay may help ensure that our directors, if confronted by a
holder attempting to force a proxy contest, a tender or exchange offer, or an
extraordinary corporate transaction, would have sufficient time to review the
proposal as well as any available alternatives to the proposal and to act in
what they believe to be the best interests of our shareholders. The
classification provisions apply to every election of directors, however,
regardless of whether a change in the composition of our board of directors
would be beneficial to us and our shareholders and whether or not a majority of
our shareholders believe that such a change would be desirable.
The
classification of our board of directors could also have the effect of
discouraging a third party from initiating a proxy contest, making a tender
offer or otherwise attempting to obtain control of us, even though such an
attempt might be beneficial to us and our shareholders. The classification of
our board of directors could thus increase the likelihood that incumbent
directors will retain their positions. In addition, because the classification
of our board of directors may discourage accumulations of large blocks of our
shares by purchasers whose objective is to take control of us and remove a
majority of our board of directors, the classification of our board of directors
could tend to reduce the likelihood of fluctuations in the market price of our
common stock that might result from accumulations of large blocks of our common
stock for such a purpose. Accordingly, our shareholders could be deprived of
certain opportunities to sell their shares at a higher market price than might
otherwise be the case.
We
believe that the power of our board of directors to issue additional authorized
but unissued shares of common stock of ours without further action by our
shareholders, unless required by applicable law or the rules of any stock
exchange or automated quotation system on which our securities may be listed or
traded, will provide us with increased flexibility in structuring possible
future financings and acquisitions and in meeting other needs that might arise.
Our board of directors could authorize and issue a class or series of shares
that could, depending upon the terms of such class or series, delay, defer or
prevent a transaction or a change in control of us that might involve a premium
price for holders of our common stock or that our shareholders otherwise
consider to be in their best interest.
Other
Limitations on Change in Control
In
addition to the classification of the board of directors as discussed above, the
following provisions of the Articles of Incorporation and Ohio law might have
the effect of delaying, deferring or preventing a change in control of us and
would operate only with respect to an extraordinary corporate transaction, such
as a merger, reorganization, tender offer, sale or transfer of assets or
liquidation involving FFBC and certain persons described below.
The OGCL
provides that the approval of two-thirds of the voting power of a corporation is
required to effect mergers and similar transactions, to adopt amendments to the
articles of incorporation of a corporation and to take certain other significant
actions. Although under Ohio law the articles of incorporation of a corporation
may permit such actions to be taken by a vote that is less than two-thirds (but
not less than a majority), the Articles of Incorporation do not contain such a
provision. The two-thirds voting requirement tends to make approval of such
matters, including further amendments to the Articles, relatively difficult, and
a vote of the holders of in excess of one-third of our outstanding shares of
common stock would be sufficient to prevent implementation of any of the
corporate actions mentioned above.
Ohio, the
state of our incorporation, has enacted OGCL Section 1701.831, a “control
share acquisition” statute. The control share acquisition statute basically
provides that any person acquiring shares of an “issuing public corporation”
(which definition we meet) in any of the following three ownership ranges must
seek and obtain shareholder approval of the acquisition transaction that first
puts such ownership within each such range: (i) more than 20% but less than
33 1/3%; (ii) 33 1/3% but not more than 50%; and (iii) more than
50%.
The
control share acquisition statute applies not only to traditional offers but
also to open market purchases, privately negotiated transactions and original
issuances by an Ohio corporation, whether friendly or unfriendly. The procedural
requirements of the control share acquisition statute could render approval of
any control share acquisition difficult in that the transaction must be
authorized at a special meeting of shareholders, at which a quorum is present,
by the affirmative vote of the majority of the voting power represented and by a
majority of the portion of such voting power excluding interested shares. Any
corporate defense against persons seeking to acquire control may have the effect
of discouraging or preventing offers which some shareholders might find
financially attractive. On the other hand, the need on the part of the acquiring
person to convince our shareholders of the value and validity of the offer may
cause such offer to be more financially attractive in order to gain shareholder
approval.
Ohio
has also enacted Chapter 1704, a “merger moratorium” statute. The merger
moratorium statute provides that, unless a corporation’s articles of
incorporation or regulations otherwise provide, an “issuing public corporation”
(which definition we meet) may not engage in a “Chapter 1704 transaction”
for three years following the date on which a person acquires more than 10% of
the voting power in the election of directors of the issuing corporation, unless
the Chapter 1704 transaction is approved by the corporation’s board of
directors prior to such voting power acquisition. A person who acquires such
voting power is an “interested shareholder”, and “Chapter 1704
transactions” involve a broad range of transactions, including mergers,
consolidations, combinations, liquidations, recapitalizations and other
transactions between an issuing public corporation and an interested shareholder
if such transactions involve 5% of the assets or shares of the issuing public
corporation or 10% of its earning power. After the initial three year
moratorium, Chapter 1704 prohibits such transactions absent approval by
disinterested shareholders or the transaction meeting certain statutorily
defined fair price provisions. One significant effect of Chapter 1704 is to
encourage a person to negotiate with the board of directors of a corporation
prior to becoming an interested shareholder.
Ohio also
has enacted Ohio Revised Code Section 1707.043, which provides that a person who
announces a control bid must disgorge profits realized by that person upon the
sale of any equity securities within 18 months of the
announcement.
In
addition, Section 1701.59 of the OGCL provides that, in determining what a
director reasonably believes to be in the best interests of the corporation,
such director may consider, in addition to the interests of the corporation’s
shareholders, any of the interests of the corporation’s employees, suppliers,
creditors and customers, the economy of the State of Ohio and the United States,
community and societal considerations and the long-term as well as the
short-term interests in the corporation and its shareholders, including the
possibility that these interests may be best served by the continued
independence of the corporation.
The
overall effect of these statutes may be to render more difficult or discourage
the removal of incumbent management or the assumption of effective control by
other persons.
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 effected in transactions, which may
involve crosses or block transactions:
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on
any national securities exchange or quotation service on which
the Series A preferred stock or 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 case of the common
stock;
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in
the over-the-counter market;
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in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
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through
the writing of options, whether the options are listed on an options
exchange or otherwise.
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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 the Series A preferred
stock or 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, as amended (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.
We do not
intend to apply for listing of the Series A preferred stock on any
securities exchange or for inclusion of the Series A preferred stock in any
automated quotation system unless requested by the initial selling shareholder.
No assurance can be given as to the liquidity of the trading market, if any, for
the Series A preferred stock.
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
underwriting discounts and selling commissions) in connection with the
registration and sale of the securities covered by this
prospectus.
SELLING
SECURITYHOLDERS
On
December 23, 2008, we issued the Warrant and the shares of Series A preferred
stock 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
and state securities laws. 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:
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80,000
shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
representing beneficial ownership of 100% of the shares of Series A
preferred stock outstanding on the date of this
prospectus;
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a
warrant to purchase up to 930,233 shares of our common stock, representing
beneficial ownership of approximately 2.48% of our common stock as of
January 20, 2009; and
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|
·
|
930,233
shares of common stock issuable upon exercise of the Warrant, which
shares, if issued, would represent ownership of approximately 2.48% of our
common stock as of January 20,
2009.
|
For
purposes of this prospectus, we have assumed that, after completion of the
offering, 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, subject to restrictions on exercise of voting rights on the
Series A preferred stock and common stock issuable upon exercise of the Warrant
as described in “Description of Series A Preferred Stock” and “Description of
Warrant to Purchase Common Stock” above, respectively.
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, some, or none of the securities pursuant to this offering, 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 securities, 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.
VALIDITY
OF SECURITIES
The
validity of the Series A preferred stock, the Warrant and our common stock being
offered hereby will be passed upon for us by Squire, Sanders & Dempsey
L.L.P.
EXPERTS
Ernst
& Young LLP, independent registered public accounting firm, has audited our
consolidated financial statements included in our Annual Report on Form 10-K for
the year ended December 31, 2007, and the effectiveness of our internal
control over financial reporting as of December 31, 2007, as set forth in
their reports, which are incorporated by reference in this prospectus and
elsewhere in the registration statement. Our financial statements are
incorporated by reference in reliance on Ernst & Young LLP’s reports, given
on their authority as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
estimated expenses (other than the SEC registration fee) in connection with the
distribution of the securities being registered, all of which are to be paid by
us, are as follows:
|
SEC
registration fee
|
|
$ |
3,616 |
|
|
Legal
fees and expenses
|
|
|
20,000 |
|
|
Accounting
fees and expenses
|
|
|
5,000 |
|
|
Miscellaneous
fees and expenses
|
|
|
5,000
|
|
|
Total
expenses
|
|
$ |
33,616 |
|
|
|
|
|
|
|
Item
15. Indemnification of Directors and Officers
The OGCL
allows a corporation under certain circumstances to indemnify its directors,
officers, employees and agents. Generally, whether by the Articles or the
Regulations or by statute, the indemnification provisions in the OGCL permit
FFBC to pay expenses, including attorney’s fees, judgments, fines and amounts
paid in settlement, actually and reasonably incurred in the defense of any
pending or threatened suit. To the extent that a director, officer, employee or
agent has been successful on the merits or otherwise in defense of certain
actions, suits or proceedings, the statute requires FFBC to pay expenses,
including attorney’s fees, actually and reasonably incurred by such director,
officer, employee or agent in connection with the action, suit or
proceeding.
With
respect to permissive indemnification, the determination of the right of
indemnification is made by a quorum of disinterested directors not involved in
such a pending matter and, if they are unable to make such determination, then
such determination is made by independent legal counsel, our shareholders or by
the Hamilton County, Ohio, Court of Common Pleas. The statute does not allow
indemnification of an officer or director where such person has been adjudicated
negligent or guilty of misconduct. Additionally, such officer or director must
have acted in good faith or had no reason to believe such officer’s or
director’s conduct was unlawful to be indemnified.
The
statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under a corporation’s articles of incorporation, regulations, any agreement, a
vote of shareholders or disinterested directors or otherwise.
The
foregoing discussion is necessarily subject to the complete text of
Section 1701.13(E) of the OGCL, which provides for indemnification of
directors, officers and other parties in certain circumstances, and is qualified
in its entirety by reference thereto.
In
general, the Articles of Incorporation and the Regulations provide that we shall
indemnify all persons whom it may indemnify to the full extent permitted by Ohio
law.
Item
16. Exhibits
The
exhibits filed (unless otherwise noted) as a part of this Registration Statement
are set forth in the accompanying Exhibit Index.
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;
(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 SEC 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 the registration statement or any
material change to such information in the registration statement;
Provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the
registration statement is on Form S-3 or Form F-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the SEC by the Registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
as amended, 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933, as
amended, to any purchaser:
(i) Each
prospectus filed by the 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 the 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.
(5) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933, as amended, to any purchaser in the initial distribution of the
securities, the undersigned Registrant undertakes that in a primary offering of
securities of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, as
amended, the filing of the Registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934, as amended, (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, as amended) 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.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as
amended, may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the SEC 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, that 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, as amended, First Financial
Bancorp. 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 Cincinnati, State of Ohio, on January 21,
2009.
| |
FIRST FINANCIAL
BANCORP. |
| |
|
|
| |
By:
|
/s/ Claude
E. Davis |
| |
Name: |
Claude
E. Davis |
| |
Title: |
President
and Chief Executive Officer |
| |
|
|
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated
on January 21, 2009.
| |
Signature
|
|
Capacity
|
| |
|
|
|
| |
/s/ Claude E Davis
|
|
President,
Chief Executive Officer and Director
|
| |
|
|
(Principal
Executive Officer)
|
| |
|
|
|
| |
/s/
J. Franklin Hall
|
|
Executive
Vice President and Chief Financial Officer |
| |
J.
Franklin Hall
|
|
(Principal
Financial Officer)
|
| |
|
|
|
| |
/s/
Anthony M. Stollings
|
|
Senior
Vice President, Chief Accounting Officer and |
| |
Anthony
M. Stollings
|
|
Controller
(Principal Accounting Officer)
|
| |
|
|
|
| |
*
|
|
Chairman
of the Board and Director |
| |
Barry
S. Porter
|
|
|
| |
|
|
|
| |
*
|
|
Director
|
| |
J.
Wickliffe Ach
|
|
|
| |
|
|
|
| |
*
|
|
Director
|
| |
Donald
M. Cisle
|
|
|
| |
|
|
|
| |
*
|
|
|
| |
Corinne
R. Finnerty
|
|
|
| |
|
|
|
| |
*
|
|
Director |
| |
Susan
L. Knust
|
|
|
| |
|
|
|
| |
*
|
|
Director |
| |
William
J. Kramer
|
|
|
| |
|
|
|
| |
*
|
|
Director
|
| |
Richard
E. Olszewski
|
|
|
| |
*
|
|
Director |
| |
Murph
Knapke
|
|
|
| |
|
|
|
|
*By:
|
/s/
J.
Franklin Hall
|
|
|
| |
J .
Franklin Hall
|
|
|
| |
Attorney-In-Fact
January
21, 2009
|
|
|
Exhibit
Index
|
Exhibit
No.
|
Exhibit
|
| |
|
|
4.1
|
Amended
and Restated Articles of Incorporation (filed as Exhibit 3.1 to the
Registrant’s Annual Report on Form 10-K for the year ended December 31,
2007, and incorporated herein by reference).
|
| |
|
|
4.2
|
Certificate
of Amendment by Shareholders to the Amended and Restated Articles of
Incorporation. |
| |
|
|
4.3
|
Certificate
of Amendment by Directors to the Amended and Restated Articles of
Incorporation (filed as Exhibit 3.1 to the Registrant’s Current Report on
Form 8-K filed on December 24, 2008, and incorporated herein by
reference).
|
| |
|
|
4.4
|
Amended
and Restated Regulations, as amended as of May 1, 2007 (filed as
Exhibit 3.2 to the Registrant’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2007, and incorporated herein by
reference).
|
| |
|
|
4.5
|
Letter
Agreement, dated as of December 23, 2008, between the Registrant and the
United States Department of the Treasury, which includes the Securities
Purchase Agreement – Standard Terms (filed as Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K filed on December 30, 2008, and
incorporated herein by reference).
|
| |
|
|
4.6
|
Warrant
to Purchase Shares of Common Stock of the Registrant, dated December 23,
2008 (filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K
filed on December 30, 2008, and incorporated herein by
reference).
|
| |
|
|
5.1
|
Opinion
of Squire, Sanders & Dempsey L.L.P.
|
| |
|
|
12.1
|
Computation
of Ratio of Earnings to Fixed Charges.
|
| |
|
|
23.1
|
Consent
of Ernst & Young LLP.
|
| |
|
|
23.2
|
Consent
of Squire, Sanders & Dempsey L.L.P. (included in Exhibit
5.1).
|
| |
|
|
24.1
|
Power
of Attorney.
|