<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 23, 1997
REGISTRATION NO. 333-27127
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
APPALACHIAN BANCSHARES, INC.
-----------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Georgia 58-2242407
- ---------------------------------- ----------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
315 Industrial Boulevard
Ellijay, Georgia 30540
--------------------------------------------------
(Address of Principal Executive Offices)
APPALACHIAN BANCSHARES, INC.
1997 EMPLOYEE STOCK INCENTIVE PLAN
and
APPALACHIAN BANCSHARES, INC.
1997 DIRECTORS' NON-QUALIFIED STOCK OPTION PLAN
and
APPALACHIAN BANCSHARES, INC.
SECTION 401(K) PROFIT SHARING PLAN
(Full Title of the Plans)
copy to:
Tracy R. Newton
315 Industrial Boulevard Walter E. Jospin, Esq.
Ellijay, Georgia 30540 Troutman Sanders LLP
(Name and Address of Agent for Service) 600 Peachtree Street, N.E.
Suite 5200, NationsBank Plaza
(706) 276-8000 Atlanta, Georgia 30308-2216
(Telephone Number, Including Area Code,
of Agent for Service) (404) 885-3000
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Amendment No. 1 to the Registrant's Registration Statement on
Form S-8 is being filed to incorporate by reference the Registrat's Quarterly
Report on Form 10-QSB for the period ended March 31, 1997 and to disclose an
amendment to the Georgia Bankers Association Master Section 401(k) Profit
Sharing Plan (the "Master Plan"). The amendment to the Master Plan is included
as Exhibit 4.3(c) to this Amendment No. 1 to the Registrant's Registration
Statement on Form S-8.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The undersigned registrant (the "Company" or "Registrant") hereby
incorporates by reference into this registration statement the following
documents:
(a) The Registrant's Annual Report on Form 10-KSB for
the fiscal year ended December 31, 1996;
(b) The Registrant's Quarterly Report on Form 10-QSB for the
period ended March 31, 1997; and
(c) The description of the Registrant's capital stock
contained in its registration statement on Form 8-A, filed
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or report filed for
the purpose of updating such description.
In addition, all documents filed subsequent to the date of this
registration statement by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, and prior to the filing of a post-effective
amendment hereto which either indicates that all shares of Common Stock offered
hereby have been sold or deregisters any shares of such Common Stock then
remaining unsold, shall be deemed to have been incorporated by reference into
this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Georgia Business Corporation Code (the "Georgia Code"),
the Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including under the Securities
Act of 1933, as amended. Section 14-2-851 of the Georgia Code gives a
corporation power to indemnify or obligate itself to indemnify an individual
made a party to a proceeding because he is or was a director against liability
incurred in the proceeding if he acted in a manner he believed in good faith to
be in or not opposed to the best interests of the corporation and, in the case
of any criminal proceeding, he has no reasonable cause to believe his conduct
was unlawful, except that no indemnification shall be made in connection with a
proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation or in connection with any other proceeding
in which he was adjudged liable on the basis that personal benefit was
improperly received by him.
II-2
<PAGE> 3
The Registrant's Articles of Incorporation provide that directors
of the Registrant will not be personally liable for monetary damages to the
Registrant or its shareholders for breaches of their fiduciary duty as
directors, except for (i) any appropriation, in violation of a director's
duties, of any business opportunity of the Registrant; (ii) any acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) the types of liability set forth on Section 14-2-832, or
any successor section thereto, of the Official Code of Georgia Annotated
(pertaining to unlawful distributions); or (iv) any transaction from which a
director derives an improper material tangible personal benefit.
The Bylaws of the Registrant provide in substance that a director or
officer of the Registrant, or a party serving at the request of the Registrant
as a director or officer of another firm, corporation, trust or other
organization or enterprise, shall be indemnified by the Registrant for any
reasonable expense actually incurred in connection with any threatened, pending
or completed action, suit or proceeding. Provided, however, that (a) such
person shall be entitled to indemnification only upon a resolution of the Board
of Directors finding that such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation and with respect to any criminal proceeding, that such person did
not have reasonable cause to believe that his conduct was unlawful; (b) no
person shall be indemnified in relation to any proceeding as to which he shall
finally be adjudged to have been guilty of or liable for gross negligence,
willful misconduct or criminal acts in the performance of his duties; and (c)
no person shall be indemnified in relation to any proceeding which has been the
subject of a compromise settlement, except with the approval of (i) a court of
competent jurisdiction, (ii) the holders of record of a majority of the
outstanding shares of capital stock or (iii) a majority of the members of the
Board of Directors then holding office.
The Registrant has an insurance policy covering its liabilities and
expenses which might arise in connection with its lawful indemnification of its
directors and officers for certain of their liabilities and expenses and also
covering its officers and directors against certain other liabilities and
expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The undersigned Registrant hereby undertakes that it has submitted
or will submit the Appalachian Bancshares, Inc. 401(k) Profit Sharing Plan (the
"Plan") and any amendment thereto to the Internal Revenue Service ("IRS") in a
timely manner and has made or will make all changes required by the IRS in
order to qualify the Plan under Section 401 of the Internal Revenue Code of
1986, as amended.
II-3
<PAGE> 4
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
4.1 Appalachian Bancshares, Inc. 1997 Employee Stock Incentive
Plan (filed as Exhibit 10.2 to the Registrant's Form
10-KSB for the fiscal year ended December 31, 1996 (the
"1996 Form 10-KSB") and incorporated herein by reference)
4.2 Appalachian Bancshares Inc. 1997 Directors'
Non-Qualified Stock Option Plan (filed as Exhibit 10.1 to
the 1996 Form 10-KSB and incorporated herein by reference)
4.3(a) Adoption Agreement for the Appalachian Bancshares, Inc.
Section 401(k) Profit Sharing Plan (previously filed)
4.3(b) Georgia Bankers Association Master 401(k) Profit Sharing
Plan (previously filed)
4.3(c) First Amendment to the Georgia Bankers Association Master
Section 401(k) Profit Sharing Plan
5 Opinion of Troutman Sanders LLP (previously filed)
23.1 Consent of Schauer, Taylor, Cox & Edwards, P.C.
(previously filed)
23.2 Consent of Troutman Sanders LLP (contained in its opinion
filed as Exhibit 5) (previously filed)
</TABLE>
ITEM 9. UNDERTAKINGS
(a) Rule 415 offerings. 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;
(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 and
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
II-4
<PAGE> 5
(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)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 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 of 1933, 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) Filings incorporating subsequent Exchange Act documents by
reference. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's 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
plan's 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.
(h) Filing of registration statement on Form S-8. Insofar as
indemnification for liabilities arising under the Securities Act of
1933 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 Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 Act and will be governed by the final adjudication of such
issue.
II-5
<PAGE> 6
SIGNATURES
THE REGISTRANT
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 Amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Ellijay, State of Georgia, on this 21st day of
May, 1997.
APPALACHIAN BANCSHARES, INC.
By: /s/ Tracy R. Newton
---------------------------------------
Tracy R. Newton
Chief Executive Officer and President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Tracy R. Newton and Kent Sanford, and
each of them, his true and lawful attorneys-in-fact and agents, 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 to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and to
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully and to all intents and purposes as he might or
would do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the registration statement has been signed by the following
persons in the capacities as of May 21, 1997.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Tracy R. Newton Chief Executive Officer, President,
- ---------------------------- Treasurer and Director
Tracy R. Newton
/s/ Frank E. Jones Chairman of the Board
- ----------------------------
Frank E. Jones
/s/ Kent W. Sanford Executive Vice President, Chief Financial
- ---------------------------- Officer and Chief Operating Officer
Kent W. Sanford
Director
- ----------------------------
Alan S. Dover
</TABLE>
II-6
<PAGE> 7
SIGNATURES
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
Director
- ----------------------------
Charles A. Edmondson
/s/ Roger E. Futch Director
- ----------------------------
Roger E. Futch
Director
- ----------------------------
Joseph C. Hensley
/s/ J. Ronald Knight Director
- ----------------------------
J. Ronald Knight
/s/ P. Joe Sisson Director
- ----------------------------
P. Joe Sisson
Director
- ----------------------------
Kenneth D. Warren
</TABLE>
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee of the Board of Directors of the Company has duly
caused this Amendment to the registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the city of Ellijay, State of
Georgia on May 21, 1997.
APPALACHIAN BANCSHARES, INC.
SECTION 401(K) PROFIT SHARING PLAN
By: /s/ Kent W. Sanford
------------------------------------------
Kent W. Sanford
Executive Vice President and Member
of Administrative Committee
II-7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Appalachian Bancshares, Inc. 1997 Employee Stock Incentive Plan
(filed as Exhibit 10.2 to the Registrant's Form 10-KSB for the
fiscal year ended December 31, 1996 (the "1996 Form 10-KSB") and
incorporated herein by reference)
4.2 Appalachian Bancshares Inc. 1997 Directors' Non-Qualified Stock
Option Plan (filed as Exhibit 10.1 to the 1996 Form 10-KSB and
incorporated herein by reference)
4.3(a) Adoption Agreement for the Appalachian Bancshares, Inc.
Section 401(k) Profit Sharing Plan (previously filed)
4.3(b) Georgia Bankers Association Master 401(k) Profit Sharing Plan
(previously filed)
4.3(c) First Amendment to the Georgia Bankers Association Master
Section 401(k) Profit Sharing Plan
5 Opinion of Troutman Sanders LLP (previously filed)
23.1 Consent of Schauer, Taylor, Cox & Edwards, P.C.
(previously filed)
23.2 Consent of Troutman Sanders LLP (contained in its opinion filed as
Exhibit 5)
</TABLE>
<PAGE> 1
Exhibit 4.3(c)
FIRST AMENDMENT TO THE
GEORGIA BANKERS ASSOCIATION
MASTER SECTION 401(k) PROFIT SHARING PLAN
THIS FIRST AMENDMENT is made and entered into this 22nd day of May,
1997 by Georgia Bankers Association (the "Master Plan Sponsor").
W I T N E S S E T H:
WHEREAS, the Master Plan Sponsor maintains the Georgia Bankers
Association Master Section 401(k) Profit Sharing Plan, as amended and restated
generally April 1, 1996 (the "Master Plan");
WHEREAS, the Master Plan was amended to permit Participating Companies
to offer Company Stock as an investment option under the Plan;
WHEREAS, it was intended to permit Participating Companies to allow
Participants to invest their contributions in Company Stock provided that the
Participating Company is subject to and complies with federal securities,
registration and disclosure statements, and the terms of the Master Plan were
overly restrictive in defining the securities subject to these requirements; and
WHEREAS, this Amendment is intended to clarify that intent;
NOW THEREFORE BE IT RESOLVED, the Master Plan is hereby amended to
provide as follows;
1. Section 2.85 of the Master Plan is deleted in its entirety and
the following is inserted in its place:
2.85 Publicly Traded shall mean the security of an issuer
who has been subject for at least 90 days preceding the date of any
purchase to the requirement to file reports pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, and has filed
all reports and other materials required to be filed by such
requirements during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports and materials)
and which is (1) if purchased from the issuer, the subject of an
effective registration statement on Form S-8 Registration Statement, or
(2) if not purchased from the issuer, is either not a "restricted
security" as defined in Rule 144(a) under the Securities Act of 1933, as
amended, or is a restricted security which can be purchased pursuant
to such Rule 144.
2. Section 8.5(b) is amended by adding the following final
sentence thereto:
For purposes of this subsection, Company Stock shall be deemed
purchased or sold on a Valuation Date if the purchase or sale is
effective as of such date.
3. This Amendment shall be effective as of April 1, 1996.
4. Except as specifically set forth above, the terms of the
Master Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Master Plan Sponsor has caused this First
Amendment to be executed by its duly authorized officer, all as of the date
first above written.
GEORGIA BANKERS ASSOCIATION
By: /s/ John J. Brannen
-------------------------
John J. Brannen, President
