<PAGE>
As filed with the Securities and Exchange Commission on November 10, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BOC FINANCIAL CORP.
(Exact Name of Registrant as Specified in its Charter)
NORTH CAROLINA 56- 6511744
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
107 CENTRAL AVENUE, DRAWER 8187
LANDIS, NORTH CAROLINA 28088-8187
(704) 857-7277
(Address, including ZIP Code, and telephone number, including area code, of
registrant's principal executive offices)
BOC Financial Corp. 1999 Management Recognition Plan
(Full title of the plan)
STEPHEN R. TALBERT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BOC FINANCIAL CORP.
107 CENTRAL AVENUE, DRAWER 8187
LANDIS, NORTH CAROLINA 28088-8187
(704) 857-7277
(Name and address of agent for service)
WITH COPIES TO:
--------------
ANTHONY GAETA, JR., ESQ.
ERIK GERHARD, ESQ.
808 SALEM WOODS DRIVE, SUITE 201
RALEIGH, NORTH CAROLINA 27615
(919) 845-2558
CALCULATION OF REGISTRATION FEE (1)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed
Title of Securities Amount Offering Price Maximum Aggregate Amount of
to be Registered to be Registered Per Share Offering Price Registration Fee (1)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 37,029 $9.62 (1) $356,219 (1) $99.03
$1.00 Par Value
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The shares of Common Stock are being granted to certain directors,
officers, and employees of Registrant and its direct and indirect
subsidiaries pursuant to stock grants in accordance with the terms of the
BOC Financial Corp. 1999 Management Recognition Plan (the "Plan") adopted
by Registrant. Pursuant to Rule 457(h), the Aggregate Offering Price and
the Registration Fee have been calculated on the basis of the maximum
number of shares to be issued under the Plan at a price equal to the
average bid and asked price as of November 3, 1999, a date which is five
(5) business days prior to filing this Registration Statement.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Explanatory Note
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I (Items 1 and 2) of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the Plan as
required by Rule 428(b) under the Securities Act of 1933 ("Securities Act").
Such documents are not being filed with the Commission as part of this
Registration Statement or prospectus or prospectus supplements pursuant to Rule
424.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by Registrant with the Commission under the
Securities Act are incorporated herein by reference:
(i) Registrant's Registration Statement on Form SB-2 filed under the
Securities Act on February 18, 1998 (Registration No. 333-42151);
In addition, all documents subsequently filed with the Commission by
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") after the date hereof prior to the
filing of a post-effective amendment which indicates that all securities have
been granted or which deregisters all securities then remaining to be granted
shall be deemed to be incorporated herein by reference and to be a part hereof
from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Registrant is incorporated under the laws of the State of North Carolina.
North Carolina's Business Corporation Act (the "BCA") contains provisions
prescribing the extent to which directors and officers of a corporation shall or
may be indemnified.
The BCA permits a corporation, with certain exceptions, to indemnify a
current or former officer or director against liability if he acted in good
faith and he reasonably believed (i) in the case of conduct in his official
capacity with the corporation, that his conduct was in its best interests, (ii)
in all other cases, that his conduct was at least not opposed to its best
interests, and (iii) with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A corporation may not
indemnify him in connection with a proceeding by or in the right of the
corporation in which he was adjudged liable to the corporation or in connection
with any other proceeding charging improper personal benefit to him, whether or
not involving action in his official capacity, in which he as adjudged liable on
the basis that personal benefit was improperly received by him unless and only
to the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, he is fairly and reasonably entitled
to indemnity for such reasonable expenses incurred which the court shall deem
proper.
The BCA requires a corporation to indemnify an officer or director in the
defense of any proceeding to which he was a party against reasonable expenses to
the extent that he is wholly successful on the merits or otherwise in his
defense. Indemnification under the BCA generally shall be made by the
corporation only upon a determination that indemnification of the director or
officer was proper under the circumstances because he met the applicable
standard of conduct. Such determination may be made by (i) the Board of
Directors by a majority vote of a quorum
2
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consisting of directors who are not parties to such proceeding, (ii) if such a
quorum is not obtainable, by majority vote of a committee duly designated by the
Board of Directors consisting solely of two or more directors not at the time
party to such proceeding; (iii) if such quorum is not obtainable, or, even if
obtainable if a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iv) by the stockholders of the
corporation.
The BCA permits a corporation to provide for indemnification of directors
and officers in its Articles of Incorporation or Bylaws or by contract or
otherwise, against liability in various proceedings, and to purchase and
maintain insurance policies on behalf of these individuals. The Articles of
Incorporation of the Registrant provide for the elimination of the personal
liability for monetary damages for certain breaches of fiduciary duty and the
Bylaws of the Registrant provide for the indemnification of directors and
officers to the maximum extent permitted by North Carolina law.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed herewith or incorporated herein by
reference as a part of the Registration Statement.
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4 Specimen of Registrant's Common Stock certificate (incorporated by reference to
Registration Statement on Form SB-2; Registration No. 333-42151).
5 Opinion of Anthony Gaeta, Jr., P.A. as to the legality of the securities being
registered (filed herewith).
23.1 Consent of Dixon Odom PLLC (filed herewith).
23.2 Consent of Anthony Gaeta, Jr., P.A. (contained in his opinion filed herewith as
Exhibit 5).
24 Power of Attorney (filed herewith).
99 Copy of Registrant's 1999 Management Recognition Plan (incorporated herein by
reference to Registration Statement on Form SB-2 filed February 18, 1999,
Registration No. 333-42151).
</TABLE>
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 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.
3
<PAGE>
(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 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) 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 and 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.
(c) 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.
4
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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 Landis, State of North Carolina, on November 8, 1999.
BOC FINANCIAL CORP.
By: /s/ Stephen R. Talbert
----------------------
Stephen R. Talbert
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------- --------
<S> <C>
/s/ Stephen R. Talbert President, Chief Executive Officer, and
- --------------------------- Director
Stephen R. Talbert
/s/ Lisa Blalock Ashley* Chief Financial Officer
- ---------------------------
Lisa Blalock Ashley
/s/ John A. Drye* Director
- ---------------------------
John A. Drye
/s/ Henry H. Land* Director
- ---------------------------
Henry H. Land
/s/ Susan Linn Norvell* Director
- ---------------------------
Susan Linn NorvelL
/s/ Lynne Scott Safrit* Director
- ---------------------------
Lynne Scott Safrit
</TABLE>
* By: /s/ Stephen R. Talbert
---------------------------
Attorney-in-fact
5
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C> <C>
4 Specimen of Registrant's Common Stock Incorporated by reference to
5 Opinion of Anthony Gaeta, Jr., P.A. as
to the legality of the securities being
registered
23.1 Consent of Dixon Odom PLLC
23.2 Consent of Anthony Gaeta, Jr., P.A. Included in Exhibit 5
24 Power of Attorney
99 Copy of BOC Financial Corp. 1999 Management Incorporated by reference
Recognition Plan
</TABLE>
6
<PAGE>
EXHIBIT 5
November 8, 1999
BOC Financial Corp.
107 Central Avenue, Drawer 8187
Landis, North Carolina 28088-8187
Ladies and Gentlemen:
As counsel for BOC Financial Corp. (the "Company"), I am furnishing the
following opinion in connection with the proposed issuance by the Company of up
to 37,029 shares of its common stock, $1.00 par value (the "Common Stock")
pursuant to the BOC Financial Corp. 1999 Management Recognition Plan (the
"Plan"). These securities are the subject of a Registration Statement to be
filed by the Company with the Securities and Exchange Commission on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act"), to which this opinion is to be attached as an exhibit.
I have examined the Articles of Incorporation and Bylaws of the Company, the
minutes of meetings of its Board of Directors and such other corporate records
of the Company and other documents and have made such examinations of law as I
have deemed relevant for the purposes of this opinion. Based upon such
examination and such certificate, it is my opinion that the 37,029 of Common
Stock of the Company which are being registered pursuant to the Registration
Statement, may be legally issued in accordance with the Company's Articles of
Incorporation and Bylaws, and when so issued and duly delivered pursuant to the
Plan as described in the Registration Statement, such shares of Common Stock
will be legally issued, fully paid and nonassessable.
The opinion expressed herein does not extend to compliance with state and
federal securities laws relating to the sale of these securities.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement that you are about to file with the Securities and Exchange
Commission. Such consent shall not be deemed to be an admission that this firm
is within the category of persons whose consent is required under Section 7 of
the 1933 Act or the regulations promulgated pursuant to the 1933 Act.
Yours very truly,
ANTHONY GAETA, JR., P.A.
By: Anthony Gaeta, Jr.
<PAGE>
EXHIBIT 23.1
[LOGO]
DIXON ODOM PLLC
Certified Public Accountants and Consultants
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
BOC Financial Corp.
Landis, North Carolina
We consent to the incorporation by reference in this Registration Statement of
BOC Financial Corp. on Form S-8 of our report, dated February 18, 1999, on our
audits of the consolidated financial statements of BOC Financial Corp. and
Subsidiary as of and for the years ended December 31, 1998 and 1997.
/s/ Dixon Odom PLLC
Sanford, North Carolina
November 2, 1999
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of BOC Financial Corp., and the
several undersigned Officers and Directors thereof whose signatures appear below
hereby makes, constitutes and appoints Stephen R. Talbert and Lisa Blalock
Ashley, or either of them, its and his or her true and lawful attorneys, with
full power of substitution to execute, deliver and file in its or his or her
name and on its or his or her behalf, and in each of the undersigned Officer's
and Director's capacity or capacities as shown below, (a) Registration Statement
on Form S-8 (or other appropriate form) with respect to the registration under
the Securities Act of 1933, as amended, of the shares of common stock of BOC
Financial Corp., $1.00 par value per share, to be issued in connection with the
grant of shares pursuant to the BOC Financial Corp. 1999 Management Recognition
Plan, all documents in support thereof or supplemental thereto and any and all
amendments, including any and all post-effective amendments, to the foregoing
(hereinafter called the "Registration Statement"), and (b) such registration
statement, petitions, applications, consents to service of process or other
instruments, any and all documents in support thereof or supplemental thereto,
and any and all amendments or supplements to the foregoing, as may be necessary
or advisable to qualify or register the securities covered by said Registration
Statement; and each of BOC Financial Corp. and said Officers and Directors
hereby grants to said attorneys, or any of them, full power and authority to do
and perform each and every act and thing whatsoever as said attorneys may deem
necessary or advisable to carry out fully the intent of this power of attorney
to the same extent and with the same effect as BOC Financial Corp. might or
could do, and as each of said Officers and Directors might or could do
personally in his or her capacity or capacities as aforesaid, and each of BOC
Financial Corp. and said Officers and Directors hereby ratifies and confirms all
acts and things which said attorneys might do or cause to be done by virtue of
this power of attorney and its or his or her signatures as the same may be
signed by said attorneys to any or all of the following (and/or any and all
amendments and supplements to any or all thereof); such Registration Statement
filed under the Securities Act of 1933, as amended, and all such registration
statement, petitions, applications, consents to service of process and other
instruments, and all documents in support thereof or supplemental thereto, filed
under such securities laws, regulations and requirements as may be applicable.
IN WITNESS WHEREOF, BOC Financial Corp. has caused this power of attorney to
be signed on its behalf, and each of the undersigned Officers and Directors in
the capacity or capacities noted has hereunto set his or her hand on the date
indicated below.
BOC Financial Corp.
(Registrant)
By: /s/ Stephen R. Talbert
-----------------------
Stephen R. Talbert, President and Chief Executive
Officer
Dated: October ___, 1999
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------- --------
<S> <C>
/s/ Stephen R. Talbert President, Chief Executive Officer, and
- --------------------------- Director
Stephen R. Talbert
/s/ Lisa Blalock Ashley Chief Financial Officer
- ---------------------------
Lisa Blalock Ashley
/s/ John A. Drye Director
- ---------------------------
John A. Drye
/s/ Henry H. Land Director
- ---------------------------
Henry H. Land
/s/ Susan Linn Norvell Director
- ---------------------------
Susan Linn NorvelL
/s/ Lynne Scott Safrit Director
- ---------------------------
Lynne Scott Safrit
</TABLE>
