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As filed with the Securities and Exchange Commission on August 4, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HABERSHAM BANCORP
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(Exact name of Registrant as specified in its charter)
GEORGIA 58-1563165
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
HIGHWAY 441 NORTH, P.O. BOX 1980, CORNELIA, GEORGIA 30531
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(Address of principal executive offices and zip code)
HABERSHAM BANCORP
OUTSIDE DIRECTORS STOCK OPTION PLAN
(Full Title of the Plan)
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KATHRYN L. KNUDSON, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
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(Name and address of agent for service)
(404) 572-6600
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(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common
Stock, $1.00 350,000 $12.00 (2) $4,200,000.00 (3) $1,449.00
par value shares(1)
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</TABLE>
(1) Representing shares to be issued and sold by the Registrant upon the
exercise of options granted or to be granted under the Habersham Bancorp
Outside Directors Stock Option Plan (the "Plan"). This Registration Statement
also covers such indeterminable number of additional shares as may become
issuable to prevent dilution in the event of a stock split, stock dividend,
reclassification or other similar transaction pursuant to the terms of the
Plan.
(2) The average of the high and low prices of the Registrant's Common
Stock as reported by the Nasdaq National Market for July 31, 1995.
(3) The aggregate offering price is calculated solely for the purpose of
determining the registration fee pursuant to Rule 457(h)(1) under the
Securities Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
participants in the Plan as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1994 (File No. 0-13153);
(2) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1995 (File No. 0-13153);
(3) The Registrant's Current Report on Form 8-K, date of event
reported June 30, 1995 (File No. 0-13153);
(4) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement filed pursuant to Section 12 of the
Securities Exchange Act of 1934 (the "Exchange Act") (File No. 0-13153).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such 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 of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws provide that directors and officers of the
Registrant will be indemnified by the Registrant against all actual expenses
and liabilities reasonably incurred in connection with service for or on behalf
of the Registrant; provided that such director or officer will not be entitled
to indemnification if (i) such director or officer is adjudged guilty of or
liable for gross negligence in the performance of his or her duties; (ii) such
director or officer is adjudged guilty of or liable for willful misconduct or
criminal acts in connection with the performance of his or her duties; and
(iii) the action or suit giving rise to the director's or officer's liability
is settled in a way not meeting the requirements set forth in the Registrant's
Bylaws. The Bylaws also provide that the right of directors and officers to
indemnification is not exclusive of any other right now possessed or hereafter
acquired under any statute, agreement or otherwise.
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
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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) liability arising in connection with a director
taking the types of actions described in Section 14-2-640(c), or any successor
section thereto, of the Official Code of Georgia Annotated (pertaining to
illegal distributions to shareholders); or (iv) any transaction from which a
director derives an improper material tangible personal benefit. The
Registrant's Articles of Incorporation further provide that, should the
Official Code of Georgia Annotated be amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Registrant shall be eliminated or limited to the
fullest extent permitted by the Official Code of Georgia Annotated, as so
amended. This provision applies only to claims against a director arising out
of his or her role as a director and not in any other capacity (such as an
officer or employee of the Registrant).
Subject to certain conditions set forth in the Plan, directors are
entitled, in addition to any other rights of indemnification to which they may
be entitled as directors or as members of the committee administering the Plan,
to be indemnified by the Registrant against reasonable expenses (including
attorneys' fees) they may incur: (i) in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein; or (ii)
in connection with any amounts paid by them in settlement of any action, suit
or proceeding or in satisfaction of any judgment with respect thereto, arising
in connection with their administration of the Plan or any option granted
thereunder. Indemnification will be available to directors except for those
proceedings where the director is judged to be liable for negligence or
misconduct in the performance of his or her duties.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable.
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ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
Exhibit
No. Description
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4(a) Amended and Restated Articles of Incorporation of the
Registrant (incorporated herein by reference to Exhibit
3.1(a) to Amendment No. 1 to the Registrant's Registration
Statement on Form S-4 as filed with the Securities and
Exchange Commission on April 21, 1995 (Reg. No. 33-57915)).
4(b) Bylaws, as amended, of the Registrant (incorporated herein by
reference to Exhibit 3.2 to the Registrant's Form 10-KSB for
the fiscal year ended December 31, 1989, previously filed
with the Securities and Exchange Commission), together with
an amendment thereto (incorporated herein by reference to
Exhibit 3.2 to the Registrant's Form 10-KSB for the fiscal
year ended December 31, 1990, previously filed with the
Securities and Exchange Commission (File No. 0-13153)).
5 Opinion of Counsel, Powell, Goldstein, Frazer & Murphy, with
respect to the securities being registered.
10 Habersham Bancorp Outside Directors Stock Option Plan
(incorporated herein by reference to Appendix A to the
Registrant's Proxy Statement for the 1995 Annual Meeting of
Shareholders, previously filed with the Securities and
Exchange Commission).
23(a) Consent of counsel (included in Exhibit 5).
23(b) Consent of Deloitte & Touche LLP, independent auditors.
24 Power of Attorney (see signature pages to this Registration
Statement).
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;
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(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;
(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
registration statement is on Form S-3, Form S-8 and 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 Exchange Act 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
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.
(h) 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 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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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Atlanta, State of Georgia, on this the 4th day of
August, 1995.
HABERSHAM BANCORP
By: /s/ David D. Stovall
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David D. Stovall
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of David D. Stovall and Edward D. Ariail
as 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, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each of said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing required or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact
and agents, or their substitutes, could lawfully do or cause to be done by
virtue hereof.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons on August 4, 1995 in
the capacities indicated.
/s/ Thomas A. Arrendale, Jr. Chairman of the Board and
- ---------------------------- Director
Thomas A. Arrendale, Jr.
/s/ Thomas A. Arrendale, III Vice Chairman of the Board
- ---------------------------- and Director
Thomas A. Arrendale, III
/s/ David D. Stovall President, Chief Executive
- ------------------------------- Officer and Director (principal
David D. Stovall executive, financial and
accounting officer)
/s/ James Holcomb Director
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James Holcomb
Director
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James A. Stapleton, Jr.
Director
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C. Kenneth White
/s/ Calvin R. Wilbanks Director
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Calvin R. Wilbanks
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EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
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4(a)* Amended and Restated Articles of Incorporation of
the Registrant (incorporated herein by reference
to Exhibit 3.1(a) to Amendment No. 1 to the
Registrant's Registration Statement on Form S-4
as filed with the Securities and Exchange
Commission on April 21, 1995 (Reg. No.
33-57915)).
4(b)* Bylaws, as amended, of the Registrant
(incorporated herein by reference to Exhibit 3.2
to the Registrant's Form 10-KSB for the fiscal
year ended December 31, 1989, previously filed
with the Securities and Exchange Commission),
together with an amendment thereto (incorporated
herein by reference to Exhibit 3.2 to the
Registrant's Form 10-KSB for the fiscal year
ended December 31, 1990, previously filed with
the Securities and Exchange Commission (File No.
0-13153)).
5 Opinion of Counsel, Powell, Goldstein, Frazer &
Murphy, with respect to the securities being
registered.
10* Habersham Bancorp Outside Directors Stock Option
Plan (incorporated herein by reference to
Appendix A to the Registrant's Proxy Statement
for the 1995 Annual Meeting of Shareholders,
previously filed with the Securities and Exchange
Commission).
23(a) Consent of counsel (included in Exhibit 5).
23(b) Consent of Deloitte & Touche LLP, independent
auditors.
24 Power of Attorney (see signature pages to this
Registration Statement).
_________________
* Indicates exhibit incorporated herein by reference to another public filing.
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EXHIBIT 5
August 4, 1995
Habersham Bancorp
Highway 441 North
P.O. Box 1980
Cornelia, Georgia 30531
Re: Registration Statement on Form S-8
Habersham Bancorp
Outside Directors Stock Option Plan
Ladies and Gentlemen:
We have served as counsel for Habersham Bancorp, a Georgia corporation
(the "Company"), in connection with the registration under the Securities Act
of 1933, as amended, pursuant to a Registration Statement on Form S-8 (the
"Registration Statement"), of an aggregate of 350,000 shares (the "Shares") of
common stock, $1.00 par value, of the Company, to be issued and sold by the
Company upon the exercise of options granted to certain directors and employees
of the Company and its subsidiaries pursuant to the Habersham Bancorp Outside
Directors Stock Option Plan (the "Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the authorization of the grants of stock options pursuant to the
Plan as we have deemed necessary and advisable. In such examinations, we have
assumed the genuineness of all signatures on all originals and copies of
documents we have examined, the authenticity of all documents submitted to us
as originals and the conformity to original documents of all certified,
conformed or photostatic copies. As to questions of fact material and relevant
to our opinion, we have relied upon certificates or representations of Company
officials and of appropriate governmental officials.
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate law of the State of Georgia.
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Habersham Bancorp
August 4, 1995
Page 9
Based upon and subject to the foregoing and having regard for such
legal considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares pursuant to the
exercise of options and payment therefor as provided in the
Plan and as contemplated by the Registration Statement, such
Shares will be legally and validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY
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EXHIBIT 23(B)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Habersham Bancorp on Form S-8 of our report dated January 27, 1995, appearing
in the Annual Report on Form 10-KSB of Habersham Bancorp for the year ended
December 31, 1994.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
August 3, 1995
