<PAGE>
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Bank of the Ozarks, Inc.
(Exact name of Registrant as specified in its charter)
Arkansas 71-0556208
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
12615 Chenal Parkway
P. O. Box 8811
Little Rock, Arkansas 72231-8811
(501) 978-2265
(Address, including zip code, of
principal executive offices)
_____________________________________
BANK OF THE OZARKS, INC.
401(k) RETIREMENT SAVINGS PLAN
(Full title of the plan)
______________________________________
George G. Gleason, II
Chairman of the Board of Directors
and Chief Executive Officer
12615 Chenal Parkway
P. O Box 8811
Little Rock, Arkansas 72231-8811
(501) 978-2265
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all correspondence to:
Jeffrey J. Gearhart
Kutak Rock
425 West Capitol Avenue
Suite 1100
Little Rock, Arkansas 72201
(501) 975-3000
________________________________________
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum
Title of Securities to To Be Offering Price Aggregate Amount of
be Registered Registered Per Share(2) Offering Price(2) Registration Fee(2)
<S> <C> <C> <C> <C>
Common Stock,
$0.01 Par Value(1) 200,000 shares(2) N/A N/A N/A
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933 (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
(2) Bank of the Ozarks, Inc. previously paid $1,083.64 with the filing
of a Form S-8 Registration Statement (Commission No. 333-32177) on June 28, 1997
to register 200,000 shares of Bank of the Ozarks, Inc. Common Stock to be issued
pursuant to the Stock Ownership Plan and Trust of Bank of the Ozarks, Inc. (the
"ESOP"). Effective January 31, 1999 the ESOP was merged into the Bank of the
Ozarks, Inc. 401(k) Retirement Savings Plan (the "401(k) Plan"). Accordingly,
pursuant to Rule 429 all 200,000 shares may now be issued pursuant to the 401(k)
Plan.
________________________________________
PART I
EXPLANATORY NOTE
The information called for by Part I of Form S-8 is included in the
Summary Plan Description of the Bank of the Ozarks, Inc. 401(k) Retirement
Savings Plan (the "401(k) Plan") to be delivered to persons purchasing shares
pursuant to the 401(k) Plan. Pursuant to the Note to Part I of Form S-8, that
information is not being filed with or included in this Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Bank of the Ozarks, Inc. (the "Company") is filing this Registration
Statement to reflect that it has merged the ESOP with and into the 401(k) Plan.
The 401(k) Plan permits participants to acquire Bank of the Ozark, Inc. Common
Stock (the "Common Stock") pursuant to a qualified cash or deferred arrangement
under Section 401(k) of the Internal Revenue Code, as amended (the "Code"). The
Company intends to submit the 401(k) Plan to the Internal Revenue Service (the
"IRS") along with a request that the IRS issue an advance determination letter
that the 401(k) Plan qualifies under Section 401(a) of the Code. The Company
will make all changes required by the IRS to qualify the 401(k) Plan.
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference as of their respective
dates of filing:
2
<PAGE>
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998; and
(2) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed June 26, 1997.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all shares then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of the Company's Common Stock being
registered hereunder is being passed upon for the Company by Kutak Rock, 425
West Capitol Avenue, Suite 1100, Little Rock, Arkansas 72201. Certain attorneys
of Kutak Rock's Little Rock office (the location of the attorneys participating
on the Company's behalf) beneficially owned shares of the Company's Common Stock
having an aggregate value of approximately $88,875 as of March 10, 1999.
Item 6. Indemnification of Directors and Officers.
Article Ninth of the Company's Amended and Restated Articles of
Incorporation provides that the Company's directors will not be personally
liable to the Company or any of its stockholders for monetary damages resulting
from breaches of their fiduciary duty as directors except (a) for any breach of
the director's duty of loyalty to the Company or its stockholders, (b) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Arkansas Code Annotated Section 4-27-833, as
the same exists or hereafter may be amended, (d) for any transaction from which
the director derived an improper personal benefit, or (e) for any action,
omission, transaction, or breach of a director's duty creating any third party
liability to any person or entity other than the Company or a stockholder.
Section 4-27-850 of the Arkansas Business Corporation Act empowers
Arkansas corporations to indemnify any former or current director or officer
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlements actually and reasonably incurred by him in connection with any
action, suit or proceeding, if such director or officer acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal proceeding had no
reasonable cause to believe his conduct was unlawful, except that no
indemnification shall be made in connection with any action by or in the right
of the corporation if such person is adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation, unless the court
determines that despite that adjudication of liability such person is fairly and
reasonably entitled to indemnity for such expenses actually and reasonably
incurred by him.
Article Tenth of the Company's Amended and Restated Articles of
Incorporation provides that the Company shall, to the full extent permitted by
Section 4-27-850 of the Arkansas Business Corporation Act, indemnify all persons
whom it may indemnify pursuant thereto.
3
<PAGE>
The effect of the indemnification provisions contained in the Company's
Amended and Restated Articles of Incorporation is to require the Company to
indemnify its directors and officers under circumstances where such
indemnification would otherwise be discretionary.
The Company's Amended and Restated Articles of Incorporation specify
that the indemnification rights granted thereunder are enforceable contract
rights which are not exclusive of any other indemnification rights that the
director or officer may have under any by-law, vote of stockholders or
disinterested directors or otherwise. As permitted by Section 4-27-850 of the
Arkansas Business Corporation Act, the Company's Amended and Restated Articles
of Incorporation also authorize the Company to purchase directors' and officers'
insurance for the benefit of its past and present directors and officers,
irrespective of whether the Company has the power to indemnify such persons
under Arkansas law. The Company currently maintains such insurance as allowed by
these provisions.
The Company's Amended and Restated Articles of Incorporation also
provide that expenses incurred by a director or officer in defending a civil or
criminal lawsuit or proceeding arising out of actions taken in his official
capacity, or in certain other capacities, will be paid by the Company in advance
of the final disposition of the matter upon receipt of an undertaking from the
director or officer to repay the sum advanced if it is ultimately determined
that he is not entitled to be indemnified by the Company pursuant to applicable
provisions of Arkansas law.
As noted above, the Company's directors and officers have certain
indemnity rights under the Company's Amended and Restated Articles of
Incorporation and are protected from certain other liabilities by the Company's
existing directors' and officers' insurance. The Company has also entered into
supplemental indemnification agreements with its directors and with certain
officers designated by the Board of Directors (collectively the "Indemnitees"),
which broaden the scope of indemnity that would otherwise be provided by the
Company to such persons under the terms of its Amended and Restated Articles of
Incorporation.
The indemnification agreements with the Indemnitees provide that,
subject to certain important exceptions, the Indemnitees shall be indemnified to
the fullest possible extent permitted by law against any amount which they
become legally obligated to pay because of any act or omission or neglect or
breach of duty. Such amount includes all expenses (including attorneys' fees),
damages, judgments, costs and settlement amounts, actually and reasonably
incurred or paid by them in any action or proceeding, including any action by or
in the right of the Company, on account of their service as a director or
officer to the Company or any subsidiary of the Company. The indemnification
agreements further provide that expenses incurred by the Indemnitees in
defending such actions, in accordance with the terms of the agreements, shall be
paid in advance, subject to the Indemnitees' obligation to reimburse the Company
in the event it is ultimately determined that they are not entitled to be
indemnified for such expenses under any of the provisions of the indemnification
agreements.
No indemnification is provided under the indemnification agreements on
account of conduct which is adjudged to be deliberately dishonest and material
to establishing the liability for which indemnification is sought. In addition,
no indemnification is provided if a final court adjudication shall determine
that such indemnification is not lawful, or in respect of any suit in which
judgment is rendered for an accounting of profits made from a purchase or sale
of securities of the Company in violation of Section 16(b) of the Securities
Exchange Act of 1934, or of any similar statutory provision, or on account of
any remuneration, personal profit or advantage which is adjudged to have been
obtained in violation of law. The indemnification agreements also contain
provisions designed to protect the Company from unreasonable settlements or
redundant legal expenditures.
4
<PAGE>
The indemnification agreements also provide for contribution by the
Company, with certain exceptions, of amounts paid by the Indemnitees in any
situation in which the Company and such individuals are jointly liable (or would
be if the Company were joined in the litigation) if for any reason
indemnification is not available. Such contribution would be based on the
relative benefits to the Company and the individuals of the transaction from
which liability arose, and on the relative fault in the transaction of the
Company and the individuals. This provision could be applicable in the event a
court found that indemnification under the federal securities laws is against
public policy and thus not enforceable, as well as under state laws.
The indemnification agreements provide for substantially broader
indemnity rights than those currently granted to the directors and officers of
the Company under the Company's Amended and Restated Articles of Incorporation,
which afforded directors and officers only those express indemnification rights
set forth in Section 4-27-850 of the Arkansas Business Corporation. They are not
intended to deny or otherwise limit third party or derivative suits against the
Company or its directors or officers. However, to the extent a director or
officer were entitled to indemnification or contribution thereunder, the
financial burden of a third party suit would be borne by the Company, and the
Company would not benefit from derivative recoveries since the amount of such
recoveries would be repaid to the director or officer pursuant to the
agreements.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 Opinion of Kutak Rock (filed herewith).
23.1 Consent of Kutak Rock (included in the opinion filed as Exhibit 5
herewith).
23.2 Consent of Moore Stephens Frost (filed herewith).
23.3 Consent of Ernst & Young LLP (filed herewith)
24.1 Powers of Attorney (filed herewith).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective
amendment to this 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 this 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 this 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
5
<PAGE>
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% ch ange 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 this registration
statement or any material change to such information in this
registration statement;
provided; however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and 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 Exchange Act that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any bility 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
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 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.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Little Rock, State of Arkansas, on March 16, 1999.
BANK OF THE OZARKS, INC.
By: /s/ George Gleason
----------------------------------
George Gleason
Chairman of the Board of Directors
and Chief Executive Officer
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 date indicated.
Signature Title Date
--------- ----- ----
/s/ George Gleason Chairman of the Board of Directors and March 16, 1999
- ------------------- Chief Executive Officer
(George Gleason
/s/ James Patridge Vice Chairman of the Board of Directors March 16, 1999
- ------------------- and Director
(James Patridge)
/s/ Mark Ross President and Director March 16, 1999
- -------------------
(Mark Ross)
/s/ Paul Moore Chief Financial Officer March 16, 1999
- ------------------- (Principal Financial Officer and
(Paul Moore) Accounting Officer
- ------------------- Director
(Roger Collins)
* Jerry Davis Director March 16, 1999
- -------------------
(Jerry Davis)
* C.E. Dougan Director March 16, 1999
- -------------------
(C. E. Dougan)
* Robert East Director March 16, 1999
- -------------------
(Robert East)
7
<PAGE>
*Linda Gleason Director March 16, 1999
- ----------------------------------
(Linda Gleason)
*Porter Hillard . Director March 16, 1999
- ----------------------------------
(Porter Hillard)
*Henry Mariani Director March 16, 1999
- ----------------------------------
(Henry Mariani)
*R. L. Qualls Director March 16, 1999
- ----------------------------------
(R. L. Qualls)
*Kennith Smith Director March 16, 1999
- ----------------------------------
(Kennith Smith)
*By: /s/ George Gleason March 16, 1999
----------------------------
(George Gleason
Attorney-in-Fact)
Pursuant to the requirements of the Securities Act of 1933, the trustees
have duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Little Rock, State of
Arkansas, on March 16, 1999.
BANK OF THE OZARKS, INC.
401(k) RETIREMENT SAVINGS PLAN
By: /s/ Paul Moore
--------------------
Paul Moore
Trustee
8
<PAGE>
INDEX TO EXHIBITS
Number Exhibit
- ------ -------
5.1 Opinion of Kutak Rock (filed herewith).
23.1 Consent of Kutak Rock (included in the opinion in Exhibit 5).
23.2 Consent of Moore Stephens Frost (filed herewith).
23.3 Consent of Ernst & Young LLP (filed herewith).
24.1 Powers of Attorney (filed herewith).
9
<PAGE>
Exhibit 5.1
March 16, 1999
Bank of the Ozarks, Inc.
12615 Chenal Parkway
Little Rock, Arkansas 72211
Re: REGISTRATION ON FORM S-8 OF SHARES OF COMMON STOCK
PAR VALUE $0.01 PER SHARE, OFFERED PURSUANT TO BANK
OF THE OZARKS, INC. 401(K) RETIREMENT SAVINGS PLAN
Ladies and Gentlemen:
We are acting as counsel to Bank of the Ozarks, Inc., an Arkansas
corporation (the "Company") in connection with the registration under the
Securities Act of 1933, as amended, of 200,000 shares (the "Shares") of common
stock, par value $0.01 per share, of the Company to be issued pursuant to the
Bank of the Ozarks, Inc. 401(k) Retirement Savings Plan (the "Plan").
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and on
the assumptions set forth below, we are of the opinion that the Shares to be
offered and sold, when issued and delivered in accordance with the terms and
provisions of the Plan against receipt of the consideration provided for
therein, will be validly issued, fully paid, and nonassessable.
In rendering this opinion, we have (i) assumed and have not independently
verified (a) the due authorization, execution and delivery of the Plan, (b) that
all signatures on all certificates and other documents examined by us are
genuine, and that, where any such signature purports to have been made in a
corporate, governmental or other capacity, the person who affixed such signature
to such certificate or other document had authority to do so, and (c) the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all documents submitted to us as copies, and (ii) as to
certain factual matters, relied upon certificates of public officials and of the
Company and its officers and have not independently checked or verified the
accuracy of the factual statements contained therein. In addition, our
examination of matters of law has been limited to the laws of the State of
Arkansas and the federal laws of the United States of America, in each case in
effect on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Kutak Rock
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8, pertaining to the registration of 200,000 shares of Bank of the
Ozarks, Inc.'s (the "Company") Common Stock to be issued under the Bank of the
Ozarks, Inc. 401(k) Retirement Savings Plan, of the consolidated financial
statements of the Company for the years ended December 31, 1997 and 1996,
incorporated by reference into the Company's Annual Report on Form 10-K for the
year ended December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Moore Stephens Frost
Moore Stephens Frost
Little Rock, Arkansas
March 15, 1999
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to Bank of the Ozarks, Inc. 401(k) Retirement Savings Plan
of our report dated January 20, 1999, with respect to the consolidated financial
statements of Bank of the Ozarks, Inc. incorporated by reference in its Annual
Report (Form 10-K) for the year ended December 31, 1998 filed with the
Securities and Exchange Commission.
/s/ Ernst & Young, LLP
Little Rock, Arkansas
March 15, 1999
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a director or
officer, or both, of Bank of the Ozarks, Inc. ("Ozark"), acting pursuant to
authorization of the Board of Directors of the Corporation, hereby appoints
George Gleason, attorney-in-fact and agent for me and in my name and on my
behalf, individually and as a director or officer, or both, of Ozark, to sign
one or more Registration Statements on Form S-8, together with all necessary
exhibits, and any amendments (including post effective amendments) and
supplements thereto, to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), with respect to (i)
the merger of the Stock Ownership Plan and Trust of Bank of the Ozarks, Inc.
with and into the Bank of the Ozarks, Inc. 401(k) Retirement Savings Plan and
(ii) the issuance and sale of shares of common stock, $0.01 par value, of Ozark
to be issued or delivered in accordance with the Bank of the Ozarks, Inc. 401(k)
Retirement Savings Plan, and generally to do and perform all things necessary to
be done in connection with the foregoing as fully in all respects as I could do
personally.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th day of January,
1999.
Signed: /s/ Jerry W. Davis
------------------
Name: JERRY W. DAVIS
Signed: /s/ C. E. Dougan
----------------
Name: C. E. DOUGAN
Signed: /s/ Robert C. East
------------------
Name ROBERT C. EAST
Signed: /s/ Linda D. Gleason
--------------------
Name: LINDA D. GLEASON
Signed: /s/ Porter Hillard
------------------
Name: PORTER HILLARD
Signed: /s/ Henry Mariani
-----------------
Name: HENRY MARIANI
Signed: /s/ R. L. Qualls
----------------
Name: R. L. QUALLS
Signed: /s/ Kennith Smith
-----------------
Name: KENNITH SMITH
