Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer,
accelerated filer, smaller reporting company, and emerging growth company in Rule
12b-2
of the Exchange Act.
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The following documents previously filed by
the Company with the Securities and Exchange Commission (the Commission) are incorporated by reference into this Registration Statement (other than, in each case, documents or information deemed to have been furnished to, rather than
filed with, the Commission, which documents or information are specifically not incorporated by reference herein):
(a) The
Registrants Annual Report on Form
10-K
for the year ended December 31, 2016, filed with the Commission on February 22, 2017.
(b) The Registrants Quarterly Reports on Form
10-Q
for the quarterly periods ended
March 31, 2017 and June 30, 2017, filed with the Commission on April 21, 2017 and July 26, 2017, respectively.
(c)
The Registrants Current Reports on Form
8-K
filed with the Commission on January 31, 2017, February 13, 2017, February 27, 2017, March 21, 2017, March 29, 2017, April 12,
2017, April 24, 2017, May 2, 2017, May 8, 2017, May 11, 2017, May 16, 2017, June 1, 2017, June 5, 2017, and June 16, 2017.
(d) The description of the Registrants Common Stock included in the Companys Current Report on Form
8-K
filed with the Commission on June 10, 2004 (Commission File
No. 033-28585),
including any amendment or report filed for the purpose of updating this
description.
All reports and other documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), prior to the filing of a post-effective amendment that indicates the Registrant has sold all of the securities offered under this Registration Statement or
deregisters the distribution of all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents; provided, however, that documents or
information deemed to have been furnished to, rather than filed with, the Commission shall not be deemed incorporated by reference in this Registration Statement.
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Any statement contained in a document incorporated or deemed to be incorporated by reference in
this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is, or is deemed to be,
incorporated by reference herein modifies or replaces such statement. Any such statement so modified or replaced shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4.
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Description of Securities.
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Certain employees of the Company and its subsidiaries are
permitted to defer certain compensation pursuant to the Plan. Participation in the Plan is voluntary. Participants may elect to allocate deferred compensation into a variety of investment alternatives, with the crediting rate determined based on a
participants choice of investment alternatives. When a participant makes a deferral election, the Company credits the value of such amount to such participants account. Participants may change investment elections at least quarterly.
Participants are 100% vested in their account balances at all times.
The Plan is intended to be an unfunded plan for purposes of the
Employee Retirement Income Security Act of 1974, as amended. The participants are unsecured general creditors of the Company and are not protected against loss of benefits in the case of the Companys insolvency or bankruptcy. The Company has
established one or more trust fund(s) for the purpose of providing a source from which to pay benefits under the Plan; provided, however, that the trusts are at all times subject to the claims of the Companys creditors in the event of the
Companys insolvency or bankruptcy.
The value of the participants account ordinarily will be distributed to the participant or
the participants beneficiary (in the case of the participants death) upon a participants separation from service. In limited circumstances of severe financial hardship or disability, a participant may be permitted to make a
withdrawal in cash prior to termination of his or her employment. In the event of a Change of Control of the Company, as defined in the Plan, deferred amounts will be immediately distributed to participants. No amount payable to a participant or a
beneficiary under the Plan may be assigned or alienated.
The Plan is administered by the Administration Committee (as defined in the
Plan) or its designee. The Company may amend or terminate the Plan at any time, pursuant to the terms and conditions set forth therein.
Item 5.
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Interests of Named Experts and Counsel.
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Mary L. Garceau, Senior Vice President, General
Counsel and Secretary of the Company, is passing on certain legal matters regarding the Deferred Compensation Obligations. Ms. Garceau is a full-time employee of the Company, owns Company securities and is eligible to participate in various
employee benefit plans, including the Plan.
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Item 6.
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Indemnification of Directors and Officers.
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Set forth below is a description of certain
provisions of the Ohio Revised Code (the ORC) and the Companys Regulations (the Regulations), as such provisions relate to the indemnification of the directors and officers of the Registrant. This description is
intended only as a summary and is qualified in its entirety by reference to the ORC and the Companys Regulations.
The Registrant
will indemnify, to the full extent then permitted by law, any director or officer or former director or officer of the Company 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, by reason of the fact that the individual is or was a member of the Companys Board of Directors (the Board) or an officer, employee or agent of the Company, or
is or was serving at the Companys request as a director, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The Company will pay, to the full extent then required by law,
expenses, including attorneys fees, incurred by a member of the Board in defending any such action, suit or proceeding as they are incurred, in advance of the final disposition thereof.
To the full extent then permitted by law, the Company may indemnify employees, agents and other persons and may pay expenses, including
attorneys fees, incurred by any employee, agent or other person in defending any action, suit or proceeding as such expenses are incurred, in advance of the final disposition thereof.
The indemnification and payment of expenses described above shall not be exclusive of, and shall be in addition to, any other rights granted
to any person seeking indemnification under any law, our amended and restated articles of incorporation, any agreement, vote of shareholders or disinterested members of the Board, or otherwise, both as to action in official capacities and as to
action in another capacity while he or she is a member of the Board or an officer, employee or agent of the Company, and shall continue as to a person who has ceased to be a member of the Board, trustee, officer, employee or agent of the Company and
shall inure to the benefit of the heirs, executors, and administrators of such a person.
The Registrant may, to the full extent then
permitted by law and authorized by the Board, purchase and maintain insurance or furnish similar protection, including but not limited to trust funds, letters of credit or self-insurance, on behalf of or for any persons described above against any
liability asserted against and incurred by any such person in any such capacity, or arising out of such persons status as such, whether or not we would have the power to indemnify such person against such liability under the provisions of
Article IV of the Regulations, or of Chapter 1701 of the ORC. Insurance may be purchased from or maintained with a person in which we have a financial interest.
The Registrant, upon approval by the Board, may enter into agreements with any persons whom the Company may indemnify under the Regulations or
under the laws of the State of Ohio and may undertake thereby to indemnify such persons and to pay the expenses incurred by them in defending any action, suit or proceeding against them.
Under Section 1701.13 of the ORC, Ohio corporations are authorized to indemnify directors, officers, employees and agents within
prescribed limits and must indemnify them under certain circumstances. Ohio law does not provide statutory authorization for a corporation to indemnify directors, officers, employees and agents for settlements, fines or judgments in the context of
derivative suits. However, it provides that directors (but not officers, employees or agents) are entitled to mandatory advancement of expenses, including attorneys fees, incurred in defending any action, including derivative actions, brought
against the director, provided that the director agrees to cooperate with the corporation concerning the matter and to repay the amount advanced if it is proved by clear and convincing evidence that the directors act or failure to act was done
with deliberate intent to cause injury to the corporation or with reckless disregard for the corporations best interests.
Ohio law
does not authorize payment of judgments to a director, officer, employee or agent after a finding of negligence or misconduct in a derivative suit absent a court order. Indemnification is permitted, however, to the extent such person succeeds on the
merits. In all other cases, if a director, officer, employee or agent acted in good faith and in a manner he or she reasonably believed to be in or not opposed to be the best interests of the corporation, indemnification is discretionary except as
otherwise provided by a corporations articles, code of regulations or by contract except with respect to the advancement of expenses of directors.
Under Ohio law, a director is not liable for monetary damages unless it is proved by clear and convincing evidence that his or her action or
failure to act was undertaken with deliberate intent to cause injury to the corporation or with reckless
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disregard for the best interests of the corporation. There is, however, no comparable provision limiting the liability of officers, employees or agents of a corporation. The statutory right to
indemnification is not exclusive in Ohio, and Ohio corporations may, among other things, procure insurance for such persons.
Item 7.
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Exemption From Registration Claimed.
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Not applicable.
The exhibits listed in the Exhibit Index appearing on page eight are
filed herewith or are incorporated by reference to other filings.
(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 the Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities 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; 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 (a)(1)(i) and (a)(1)(ii) above do not apply if the registration statement is on Form
S-8,
and the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission 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.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 Securities 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 Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
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securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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