Form S-8
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
THIRD
CENTURY BANCORP
(Exact
name of Registrant as specified in its charter)
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Indiana
(State
or other jurisdiction of incorporation
or organization)
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20-0857725
(I.R.S.
Employer Identification No.)
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80
Jefferson Street
Franklin,
Indiana
(Address
of Principal Executive Offices)
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46131
(Zip
Code)
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THIRD
CENTURY BANCORP
STOCK
OPTION PLAN
(Full
title of the plan)
Robert
D. Heuchan
President
and Chief Executive Officer
Third
Century Bancorp
80
Jefferson Street
Franklin,
Indiana 46131
(Name
and
address of agent for service)
(Telephone
number, including area code, of agent for service)
(317)
736-7151
CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be
registered
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Proposed
maximum
offering
price
per
share (1)
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Proposed
maximum
aggregate
offering
price
(1)
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Amount
of
registration
fee
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Common Stock, without par value (2)
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165,312
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$13.10
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$2,165,587
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$254.89
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(1)
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Estimated
solely to determine the registration fee and based on the option
price of
stock options already granted under the Plan and on the average of
the high and low sales prices per share of Common Stock
of Third
Century Bancorp on July 20, 2005, pursuant to Rule 457(c)
and
(h).
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(2)
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In
addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this
Registration Statement also covers an indeterminate amount of interests
to
be offered or sold pursuant to the employee benefit plan described
herein.
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(3)
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Any
additional shares of Common Stock to be issued as a result of stock
dividends, stock splits, or similar transactions shall be covered
by this
Registration Statement as provided in Rule
416.
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PART
I
INFORMATION
REQUIRED IN THE
SECTION
10(a) PROSPECTUS
Document(s)
containing information specified by Part I of this Form S-8 Registration
Statement (“Registration Statement”) will be sent or given to participants in
the Third Century Bancorp Stock Option Plan (the “Plan”), as specified in Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).
Such document(s) are not being filed with the Commission but constitute (along
with the documents incorporated by reference into the Registration Statement
pursuant to Item 3 of Part II hereof), a prospectus that meets the requirements
of Section 10(a) of the 1933 Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
following documents are hereby incorporated by reference into this Registration
Statement:
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(1)
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The
annual report of Third Century Bancorp (the “Registrant”) for the year
ended December 31, 2004, filed with the Commission on Form
10-KSB;
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(2)
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The
quarterly report of the Registrant on form 10-QSB for the quarter
ended
March 31, 2005;
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(3)
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Registrant’s
Forms 8-K filed on May 2, 2005, May 16, 2005,
and July 26,
2005;
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(4)
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All
other reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the “1934 Act”) by the Registrant since
December 31, 2004; and
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(5)
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The
description of the capital stock of the Registrant contained in
the
Registrant’s Registration Statement on Form 8-A, which was filed with the
Commission on June 29, 2004, and all amendments or reports
filed for
the purpose of updating such
description.
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All
documents subsequently filed by the Registrant or the Plan with the Commission
pursuant to Sections l3(a), 13(c), l4, and l5(d) of the 1934 Act prior to the
filing of a post-effective amendment that indicates that all shares offered
hereby have been sold or that deregisters all shares then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part thereof from the date they are filed.
Item
4. Description
of Securities.
Not
applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification
of Directors and Officers.
Section
21 of the Indiana Business Corporation Law, as amended (the “BCL”), grants to
each corporation broad powers to indemnify directors, officers, employees or
agents against expenses incurred in certain proceedings if the conduct in
question was found to be in good faith and was reasonably believed to be in
the
corporation’s best interests. This statute provides, however, that this
indemnification should not be deemed exclusive of any other indemnification
rights provided by the articles of incorporation, by-laws, resolution or other
authorization adopted by a majority vote of the voting shares then issued and
outstanding. Section 10.05 and Article 13 of the Articles of Incorporation
of
the Registrant state as follows:
Section
10.05. Limitation of Liability and Reliance on Corporate Records and Other
Information.
Clause
10.051. General
Limitation. No
Director, member of any committee of the Board of Directors, or of another
committee appointed by the Board, Officer, employee or agent of the Corporation
(“Corporate Person”) shall be liable for any loss or damage if, in taking or
omitting to take any action causing such loss or damage, either (1) such
Corporate Person acted (A) in good faith, (B) with the care an ordinarily
prudent person in a like position would have exercised under similar
circumstances, and (C) in a manner such Corporate Person reasonably believed
was
in the best interests of the Corporation, or (2) such Corporate Person’s breach
of or failure to act in accordance with the standards of conduct set forth
in
Clause 10.051(1) above (the “Standards of Conduct”) did not constitute willful
misconduct or recklessness.
Clause
10.052. Reliance on Corporate Records and Other Information.
Any “Corporate Person” shall be fully protected, and shall be deemed to have
complied with the Standards of Conduct, in relying in good faith, with respect
to any information contained therein, upon (1) the Corporate Records, or (2)
information, opinions, reports or statements (including financial statements
and
other financial data) prepared or presented by (A) one or more other Corporate
Persons whom such Corporate Person reasonably believes to be competent in the
matters presented, (B) legal counsel, public accountants or other persons as
to
matters that such Corporate Person reasonably believes are within such person’s
professional or expert competence, (C) a committee of the Board of Directors
or
other committee appointed by the Board of Directors, of which such Corporate
Person is not a member, if such Corporate Person reasonably believes such
committee of the Board of Directors or such appointed committee merits
confidence, or (D) the Board of Directors, if such Corporate Person is not
a
Director and reasonably believes that the Board merits confidence.
ARTICLE
13
Indemnification
Section
13.01. General.
The
Corporation shall, to the fullest extent to which it is empowered to do so
by
the Act, or any other applicable laws, as from time to time in effect, indemnify
any person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, by
reason of the fact that he is or was a Director, Officer, employee or agent
of
the Corporation, or who, while serving as such Director, Officer, employee
or
agent of the Corporation, is or was serving at the request of the Corporation
as
a director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
whether for profit or not, against expenses (including counsel fees), judgments,
settlements, penalties and fines (including excise taxes assessed with respect
to employee benefit plans) actually or reasonably incurred by him in accordance
with such action, suit or proceeding, if he acted in good faith and in a manner
he reasonably believed, in the case of conduct in his official capacity, was
in
the best interests of the Corporation, and in all other cases, was not opposed
to the best interests of the Corporation, and, with respect to any criminal
action or proceeding, he either had reasonable cause to believe his conduct
was
lawful or no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement
or
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of
itself, create a presumption that the person did not meet the prescribed
standard of conduct.
Section
13.02. Authorization
of Indemnification. To
the
extent that a Director, Officer, employee or agent of the Corporation has been
successful, on the merits or otherwise, in the defense of any action, suit
or
proceeding referred to in Section 13.01 of this Article, or in the defense
of
any claim, issue or matter therein, the Corporation shall indemnify such person
against expenses (including counsel fees) actually and reasonably incurred
by
such person in connection therewith. Any other indemnification under Section
13.01 of this Article (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case, upon a determination that
indemnification of the Director, Officer, employee or agent is permissible
in
the circumstances because he has met the applicable standard of conduct. Such
determination shall be made (1) by the Board of Directors by a majority vote
of
a quorum consisting of Directors who were not at the time parties to such
action, suit or proceeding; or (2) if a quorum cannot be obtained under
subdivision (1), by a majority vote of a committee duly designated by the Board
of Directors (in which designation Directors who are parties may participate),
consisting solely of two or more Directors not at the time parties to such
action, suit or proceeding; or (3) by special legal counsel: (A) selected by
the
Board of Directors or its committee in the manner prescribed in subdivision
(1)
or (2), or (B) if a quorum of the Board of Directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision (2),
selected by a majority vote of the full Board of Directors (in which selection
Directors who are parties may participate); or (4) by the Shareholders, but
shares owned by or voted under the control of Directors who are at the time
parties to such action, suit or proceeding may not be voted on the
determination.
Authorization
of indemnification and evaluation as to reasonableness of expenses shall be
made
in the same manner as the determination that indemnification is permissible,
except that if the determination is made by special legal counsel, authorization
of indemnification and evaluation as to reasonableness of expenses shall be
made
by those entitled under subsection (3) to select counsel.
Section
13.03.Good Faith Defined. For purposes of any determination
under Section 13.01 of this Article 13, a person shall be deemed to have acted
in good faith and to have otherwise met the applicable standard of conduct
set
forth in Section 13.01 if his action is based on information, opinions, reports,
or statements, including financial statements and other financial data, if
prepared or presented by (1) one or more Officers or employees of the
Corporation or another enterprise whom he reasonably believes to be reliable
and
competent in the matters presented; (2) legal counsel, public accountants,
appraisers or other persons as to matters he reasonably believes are within
the
person’s professional or expert competence; or (3) a committee of the Board of
Directors of the Corporation or another enterprise of which the person is not
a
member if he reasonably believes the committee merits confidence. The term
“another enterprise” as used in this Section 13.03 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan
or
other enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent. The
provisions of this Section 13.03 shall not be deemed to be exclusive or to
limit
in any way the circumstances in which a person may be deemed to have met the
applicable standards of conduct set forth in Section 13.01 of this Article
13.
Section
13.04. Payment
of Expenses in Advance. Expenses
incurred in connection with any civil or criminal action, suit or proceeding
may
be paid for or reimbursed by the Corporation in advance of the final disposition
of such action, suit or proceeding, as authorized in the specific case in the
same manner described in Section 13.02 of this Article, upon receipt of a
written affirmation of the Director, Officer, employee or agent’s good faith
belief that he has met the standard of conduct described in Section 13.01 of
this Article and upon receipt of a written undertaking by or on behalf of the
Director, Officer, employee or agent to repay such amount if it shall ultimately
be determined that he did not meet the standard of conduct set forth in this
Article 13, and a determination is made that the facts then known to those
making the determination would not preclude indemnification under this
Article 13.
Section
13.05. Provisions Not Exclusive. The indemnification provided
by this Article shall not be deemed exclusive of any other rights to which
a
person seeking indemnification may be entitled under these Articles of
Incorporation, the Corporation’s Code of By-Laws, any resolution of the Board of
Directors or Shareholders, any other authorization, whenever adopted, after
notice, by a majority vote of all Voting Stock then outstanding, or any
contract, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a Director, Officer, employee or agent, and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
Section
13.06. Vested Right to Indemnification. The right of any
individual to indemnification under this Article shall vest at the time of
occurrence or performance of any event, act or omission giving rise to any
action, suit or proceeding of the nature referred to in Section 13.01 of this
Article 13 and, once vested, shall not later be impaired as a result of any
amendment, repeal, alteration or other modification of any or all of these
provisions. Notwithstanding the foregoing, the indemnification afforded under
this Article shall be applicable to all alleged prior acts or omissions of
any
individual seeking indemnification hereunder, regardless of the fact that such
alleged acts or omissions may have occurred prior to the adoption of this
Article. To the extent such prior acts or omissions cannot be deemed to be
covered by this Article 13, the right of any individual to indemnification
shall
be governed by the indemnification provisions in effect at the time of such
prior acts or omissions.
Section
13.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, Officer, employee
or
agent of the Corporation, or who is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or
other enterprise, against any liability asserted against or incurred by the
individual in that capacity or arising from the individual’s status as a
Director, Officer, employee or agent, whether or not the Corporation would
have
power to indemnify the individual against the same liability under this
Article.
Section
13.08. Additional Definitions. For purposes of this Article,
references to the “Corporation” shall include any domestic or foreign
predecessor entity of the Corporation in a merger or other transaction in which
the predecessor’s existence ceased upon consummation of the
transaction.
For
purposes of this Article, serving an employee benefit plan at the request of
the
Corporation shall include any service as a Director, Officer, employee or agent
of the Corporation which imposes duties on, or involves services by such
Director, Officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries. A person who acted in good faith and in
a
manner he reasonably believed to be in the best interests of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted
in a
manner “not opposed to the best interest of the Corporation” referred to in this
Article.
For
purposes of this Article, “party” includes any individual who is or was a
plaintiff, defendant or respondent in any action, suit or proceeding, or who
is
threatened to be made a named defendant or respondent in any action, suit or
proceeding.
For
purposes of this Article, “official capacity”, when used with respect to a
Director, shall mean the office of director of the Corporation; and when used
with respect to an individual other than a Director, shall mean the office
in
the Corporation held by the Officer or the employment or agency relationship
undertaken by the employee or agent on behalf of the Corporation. “Official
capacity” does not include service for any other foreign or domestic corporation
or any partnership, joint venture, trust, employee benefit plan, or other
enterprise, whether for profit or not.
Section
13.09. Payments a Business Expense. Any payments made to any
indemnified party under this Article under any other right to indemnification
shall be deemed to be an ordinary and necessary business expense of the
Corporation, and payment thereof shall not subject any person responsible for
the payment, or the Board of Directors, to any action for corporate waste or
to
any similar action.
Under
the
Act, an Indiana corporation may purchase and maintain insurance on behalf of
any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another enterprise, against any liability asserted against
him or incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of the Act. The Registrant has
purchased insurance designed to protect and indemnify the Registrant and its
officers and directors in case they are required to pay any amounts arising
from
certain claims, including claims under the Securities Act of 1933, which might
be made against the officers and directors by reason of any actual or alleged
act, error, omission, misstatement, misleading statement, neglect, or breach
of
duty while acting in their respective capacities as officers or directors of
the
Registrant.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
exhibits furnished with this registration statement are listed on page
E-1.
Item
9. Undertakings.
(a) The
undersigned Registrant hereby undertakes (1) to file, during any period in
which
offers or sales are being made, a post-effective amendment to this Registration
Statement (i) to include any prospectus required by Section 10(a)(3) of the
1933
Act; (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
(provided that 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 a prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table on the effective
Registration Statement); (iii) to include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that clauses (a)(1)(i) and (a)(1)(ii) do not
apply
if the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the Registrant pursuant
to Section 13 or 15(d) of the 1934 Act that are incorporated by reference in
the
Registration Statement; (2) that, for the purpose of determining any liability
under the 1933 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; and (3) to remove from registration by means of a
post-effective amendment any of the securities being registered that remain
unsold at the termination of the offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the 1933 Act, each filing of the Registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 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.
(c) Insofar
as indemnification for liabilities arising under the 1933 Act may be permitted
to directors, officers and controlling persons of the Registrant pursuant to
the
foregoing provisions, or otherwise, the Registrant has been advised that in
the
opinion of the Commission, such indemnification is against public policy as
expressed in the 1933 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 1933
Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this Registration Statement to be
signed
on its behalf by the undersigned, thereunto duly authorized, in the City
of
Franklin, and the State of Indiana, on this 26th day of July,
2005.
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THIRD
CENTURY BANCORP
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By
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/s/
Robert D. Heuchan
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Robert D.
Heuchan
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President
and Chief Executive Officer
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Each
person whose signature appears below hereby constitutes and appoints
Robert D. Heuchan and David A. Coffey, and each of them, his true
and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission under the Securities Act of
1933.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on
the
dates indicated.
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Signature
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Title
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Date
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(1)
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Principal
Executive Officer:
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/s/
Robert D. Heuchan
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President
and Chief
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)
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Robert D.
Heuchan
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Executive
Officer
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)
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)
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(2)
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Principal
Financial and
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)
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Accounting
Officer:
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)
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)
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/s/
Debra K. Harlow
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Chief
Financial Officer
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)
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Debra
K. Harlow
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)
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)
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July
26, 2005
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(3)
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A
Majority of the Board
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)
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of
Directors
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)
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)
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/s/
David A. Coffey
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Director
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)
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David
A. Coffey
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)
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)
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)
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/s/
Robert L. Ellett
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Director
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)
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Robert
L. Ellett
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)
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)
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)
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/s/
Robert D. Heuchan
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Director
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)
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Robert
D. Heuchan
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)
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)
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)
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July
26, 2005
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/s/
Jerry D. Petro
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Director
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)
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Jerry
D. Petro
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)
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)
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Director
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/s/
Robert D. Schafstall
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)
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Robert
D. Schafstall
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)
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INDEX
TO EXHIBITS
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Exhibit
No.
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Description
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4.1
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Articles
of Incorporation of the Registrant are incorporated by reference
to
Exhibit 3(1) to the Registrant’s Registration Statement on Form SB-2
(Registration No. 333-113691), which was filed with the Commission
on
March 17, 2004*
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4.2
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By-Laws
of the Registrant are incorporated by reference to Exhibit
3(2) of the
Registrant’s Registration Statement on Form SB-2 (Registration No.
333-113691), which was filed with the Commission on March 17,
2004*
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5
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Opinion
of Barnes & Thornburg LLP as to the legality of the securities being
registered
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23.1
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Consent
of BKD, LLP
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23.2
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Consent
of Barnes & Thornburg LLP is included as part of Exhibit
5
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24
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Power
of Attorney is set forth on page S-1 of this Registration
Statement
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99
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Third
Century Bancorp Stock Option Plan (incorporated by reference
to Exhibit C
to the Registrant’s definitive proxy statement for its annual meeting of
shareholders held on July 20, 2005)*
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*Previously
filed with the Commission and by this reference incorporated into the
Registration Statement.
E-1