<PAGE> 1
As Filed With the Securities And Exchange Commission on May 8, 1995;
Registration No. 33-57915
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HABERSHAM BANCORP
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(Exact name of registrant as specified in its charter)
Georgia 6025 58-1563165
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(State of other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Classi- Identification No.)
incorporation) fication Code No.)
Highway 441 North
P. O. Box 1980
Cornelia, Georgia 30531
(706) 778-1000
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(Address, including ZIP Code, and telephone number, including
area code, of registrant's principal executive offices)
Kathryn L. Knudson, Esq.
Powell, Goldstein, Frazer & Murphy
Sixteenth Floor, 191 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 572-6600
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(Name, address, including ZIP Code, and telephone
number, including area code, of agent for service)
Approximate date of commencement of the proposed sale of the securities to the
public: As soon as practicable after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G check the following box.
----
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
Exhibit Index on page 6. Page 1 of 10 pages.
<PAGE> 2
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of each class maximum maximum Amount of
of securities Amount to be offering aggregate Registration
to be registered registered price per unit offering price Fee
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<S> <C> <C> <C> <C>
Common stock 828,975(1) shares $10.25(2) $8,496,994(2) $2,930(2)(3)
</TABLE>
(1) The number of shares being registered assumes that each holder of Security
Bancorp, Inc. common stock elects to receive shares of the Registrant's common
stock in the merger described herein. It also takes into account the effects
of the Registrant's five-for-one stock split (to be effected in the form of a
400% stock dividend) with respect to the Registrant's common stock that will be
paid on May 15, 1995 to the holders of its outstanding common stock as of a
record date of May 1, 1995. The Registrant will deregister any shares that are
not issued in the merger.
(2) In accordance with Rule 457(f)(2), the registration fee is based upon the
book value ($10.25) at December 31, 1994 of the shares of Security common stock
to be received by the Registrant in connection with the merger.
(3) Previously paid.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Except as set forth herein, information contained in Part II of the
Registration Statement as previously filed is unchanged and remains a part of
the Registration Statement.
II-1
<PAGE> 4
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits (See exhibit index immediately preceding the exhibits for
the page number where each exhibit can be found)
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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<S> <C> <C>
2(a) -- Agreement and Plan of Merger, dated as of January 16, 1995, by and between Habersham and Security (included in
Appendix A to the Proxy Statement/Prospectus and incorporated by reference herein)*
2(b) -- Form of Letter Agreement Regarding Stock Options, dated as of January 16, 1995, among Habersham, Security and the
Security Option Holders named therein (included in Appendix B to the Proxy Statement/Prospectus and incorporated by
reference herein)*
3(a) -- Amended and Restated Articles of Incorporation, as amended*
3(b) -- Bylaws (included as Exhibit 3.2 to the Registrant's Form 10-K for the fiscal year ended December 31, 1989, previously
filed with the Commission and incorporated by reference herein), together with an amendment thereto (included as Exhibit
3.2 to the Registrant's Form 10-K for the fiscal year ended December 31, 1990, previously filed with the Commission and
incorporated by reference herein) (Commission File No. 0-13153)
4(a) -- See Exhibits 3(a) and 3(b) for provisions of the Articles of Incorporation and Bylaws of the Registrant defining rights
of holders of Common Stock of the Registrant
5 -- Opinion of Powell, Goldstein, Frazer & Murphy, including consent*
8 -- Opinion of Powell, Goldstein, Frazer & Murphy, including consent
11 -- Statement regarding computation of per share earnings*
23(a) -- Consent of Powell, Goldstein, Frazer & Murphy (included in Exhibits 5 and 8)
23(b) -- Consent of Deloitte & Touche LLP*
23(c) -- Consent of Joseph Decosimo and Company*
23(d) -- Consent of Alex Sheshunoff & Co. Investment Banking*
24 -- Power of Attorney (see signature page to the Registration Statement)*
27 -- Financial Data Schedule*
99 -- Form of Proxy (included in Appendix E to the Proxy Statement/Prospectus and incorporated by reference herein)*
- -------------------
</TABLE>
*Previously filed.
(b) Financial Statement Schedules
Schedules are omitted because they are not required or are not
applicable, or the required information is shown in the financial statements or
notes thereto.
II-2
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement Amendment to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Atlanta, State of Georgia, on May 5, 1995.
HABERSHAM BANCORP
By: /s/ David D. Stovall
--------------------------------
David D. Stovall
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement Amendment has been signed by the following persons in
the capacities indicated on May 5, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
* Chairman of the Board and Director
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Thomas A. Arrendale, Jr.
* Vice Chairman of the Board and Director
----------------------------
Thomas A. Arrendale, III
/s/ David D. Stovall President, Chief Executive Officer and Director
----------------------------
David D. Stovall (Principal Executive, Financial and Accounting Officer)
* Director
----------------------------
James Holcomb
* Director
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James A. Stapleton, Jr.
* Director
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Calvin R. Wilbanks
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*By: /s/ David D. Stovall
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David D. Stovall
Attorney-in-Fact
</TABLE>
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF
NUMBER EXHIBITS
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<S> <C>
2(a) Agreement and Plan of Merger, dated as of January 16, 1995,
by and between Habersham and Security (included in Appendix A
to the Proxy Statement/Prospectus and incorporated by
reference herein)*
2(b) Form of Letter Agreement Regarding Stock Options, dated as of January 16,
1995, among Habersham, Security and the Security Option Holders
named therein (included in Appendix B to the Proxy Statement/Prospectus
and incorporated by reference herein)*
3(a) Amended and Restated Articles of Incorporation, as amended*
3(b) Bylaws, as amended (included as Exhibit 3.2 to the Registrant's Form 10-K
for the fiscal year ended December 31, 1989, previously filed with
the Commission and incorporated by reference herein), together with an
amendment thereto (included as Exhibit 3.2 to the Registrant's Form 10-K
for the fiscal year ended December 31, 1990, previously filed with the
Commission and incorporated by reference herein) (Commission File No. 0-13153)
4(a) See Exhibits 3(a) and 3(b) for provisions of the Articles of Incorporation
and Bylaws of the Registrant defining rights of holders of Common Stock
of the Registrant
5 Opinion of Powell, Goldstein, Frazer & Murphy, including consent*
8 Opinion of Powell, Goldstein, Frazer & Murphy, including consent
11 Statement regarding computation of per share earnings*
23(a) Consent of Powell, Goldstein, Frazer & Murphy (included in Exhibits 5 and 8)
23(b) Consent of Deloitte & Touche LLP*
23(c) Consent of Joseph Decosimo and Company*
23(d) Consent of Alex Sheshunoff & Co. Investment Banking*
24 Power of Attorney (see signature page to the Registration Statement)*
27 Financial Data Schedule*
99 Form of Proxy (included in Appendix E to the Proxy Statement/Prospectus and
incorporated by reference herein)*
</TABLE>
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*Previously filed.
<PAGE> 1
POWELL, GOLDSTEIN, FRAZER & MURPHY EXHIBIT 8
ATTORNEYS AT LAW
<TABLE>
<CAPTION>
<S> <C> <C>
Sixteenth Floor Sixth Floor
191 Peachtree Street, N.E. 101 Pennsylvania Avenue, N.W.
Atlanta, Georgia 30303 PLEASE RESPOND Atlanta Address Washington, D.C. 20004
404 572-6600 202 347-0066
Facsimile 404 572-6999 Facsimile 202 624-7222
</TABLE>
May 3, 1995
Habersham Bancorp
Highway 441 North
Cornelia, GA 30531
Security Bancorp, Inc.
1600 Marietta Highway
Canton, GA 30114
Ladies and Gentlemen:
You have requested our opinion with respect to certain federal income
tax consequences of the proposed merger of Security Bancorp, Inc. a Georgia
corporation ("SBI") with and into Habersham Bancorp, a Georgia corporation
("HB"). For purposes of rendering this opinion, we have reviewed the Agreement
and Plan of Merger between SBI and HB, dated as of January 16, 1995 (the
"Merger Agreement"), the Form S-4 Registration Statement filed with the
Securities and Exchange Commission on March 2, 1995 (the "S- 4"), the
certificates attached hereto, and such other documents as we have considered
appropriate. Unless otherwise indicated, terms used in this opinion have the
same meaning as in the S-4.
For purposes of this opinion, we have assumed that the Merger will be
consummated at the Effective Time pursuant to the terms and conditions set
forth in the Merger Agreement. We have assumed that the portion of the Maximum
Cash Value paid pursuant to the Merger plus the value of any shares of SBI
Common Stock sold, redeemed or otherwise disposed of (other than pursuant to a
shareholder's statutory right to dissent) prior to and in contemplation of the
Merger does not exceed more than fifty percent (50%) of the value of all shares
of Common Stock of SBI outstanding as of the Effective Date plus the value of
any shares of SBI Common Stock sold, redeemed or disposed of prior to and in
contemplation of the Merger. Also, we have assumed that there is no plan or
intention on the part of the shareholders of SBI to sell, exchange or otherwise
dispose of a number of shares of HB Common Stock received in the Merger that
would reduce SBI shareholders' ownership of HB Common Stock to a number of
shares having a value, as of the Effective Date, of less than fifty percent
(50%) of the value of all of the formerly outstanding Common Stock of SBI as of
the Effective Date plus the value of any shares of SBI Common Stock sold,
redeemed or disposed of prior to and in contemplation of the Merger.
In addition, we have assumed with your permission that the facts
certified to us in writing by SBI and HB, which are set forth in the
certificates attached hereto, apply as of the Effective
<PAGE> 2
POWELL, GOLDSTEIN, FRAZER & MURPHY
Habersham Bancorp
Security Bancorp, Inc.
May 3, 1995
Page 2
Time. Copies of such certificates are attached hereto and incorporated herein
by reference. We have neither investigated nor verified the accuracy of any of
the facts which have been certified to us, upon which this opinion is based.
This opinion is based on the Code, Treasury Regulations, Internal
Revenue Service rulings, judicial decisions, and other applicable authority,
all as in effect on the date of this opinion. The legal authorities on which
this opinion is based may be changed at any time. Any such changes may be
retroactively applied and could modify the opinions expressed herein. This
opinion does not address any tax considerations under foreign, state, or local
laws, or the tax considerations to certain SBI shareholders in light of their
particular circumstances, including persons who are not United States persons,
dealers in securities, tax-exempt entities, shareholders who do not hold SBI
Common Stock as "capital assets" within the meaning of Section 1221 of the
Code, and shareholders who acquired their shares of SBI Common Stock pursuant
to the exercise of SBI options or otherwise as compensation.
Based upon and subject to the foregoing, we are of the opinion that
the Merger will constitute a reorganization within the meaning of Section
368(a)(1)(A) of the Code, and the following federal income tax consequences
will result:
(a) Under Section 354 of the Code, no gain or loss will
be recognized for federal income tax purposes by SBI shareholders upon
the exchange of their shares of SBI Common stock for HB Common Stock.
(b) Under Section 358 of the Code, the basis of the
shares of HB Common Stock to be received by SBI shareholders will be
the same as the basis of SBI Common Stock surrendered in exchange
therefor.
(c) Under Section 1223 of the Code, the holding period of
the HB Common Stock to be received by each SBI shareholder will
include the period during which the shares of SBI Common Stock
surrendered in exchange therefor had been held, provided such shares
were held by such shareholders as a capital asset at the Effective
Time.
(d) The payment of cash in lieu of fractional shares of
HB Common Stock will be treated as if the fractional shares were
issued as part of the exchange and then redeemed by HB. These cash
payments will be treated as having been received as distributions in
full payment for the fractional shares of HB Common Stock redeemed as
provided in Section 302(a) of the Code. See Revenue Ruling 66-365,
1966-2 C.B. 116. Each affected SBI shareholder should consult such
shareholder's own tax advisor for the tax effect of such redemption
(i.e. exchange treatment or dividend).
<PAGE> 3
POWELL, GOLDSTEIN, FRAZER & MURPHY
Habersham Bancorp
Security Bancorp, Inc.
May 3, 1995
Page 3
(e) SBI shareholders who elect to receive cash in
exchange for their shares of SBI Common Stock or who receive cash
pursuant to their statutory right to dissent will be treated as having
received such payment in redemption, as provided in Section 302(a) of
the Code, of shares of HB Common Stock which would have otherwise been
received by such SBI shareholders. See
Commissioner v. Clark, 489 U.S. 726 (1989). Each
affected SBI shareholder should consult such shareholder's own tax
advisor for the tax effect of such redemption (i.e. exchange treatment
or dividend).
(f) Under Sections 361 and 1032 of the Code, no gain or
loss will be recognized for federal income tax purposes by SBI or HB
as a consequence of the Merger except for deferred gain or loss
recognized pursuant to Treasury Regulations issued under Section 1502
of the Internal Revenue Code.
This opinion is being rendered solely to the parties to whom it is
addressed and may be relied upon by them and their respective shareholders.
This opinion may not be relied upon by any other party without the express
written permission of our Firm. We hereby consent to the reference to our Firm
in, and to the filing of this opinion as an exhibit to, any registration
statement or offering statement made with respect to the Merger.
Very truly yours,
/s/ POWELL, GOLDSTEIN, FRAZER & MURPHY
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POWELL, GOLDSTEIN, FRAZER & MURPHY
<PAGE> 4
CERTIFICATE OF
HABERSHAM BANCORP
In connection with the merger of Security Bancorp, Inc.
("SBI") with and into Habersham Bancorp ("HB") with HB as the surviving entity,
and in accordance with the Agreement and Plan of Merger by and between SBI and
HB dated as of January 16, 1995 (the "Agreement"), David D. Stovall and Edward
D. Ariail, President and Vice President/Corporate Secretary, respectively, of
HB, make the following certifications. Unless otherwise indicated, terms used
in this certificate have the same meaning as in the Form S-4 Registration
Statement filed with the Securities and Exchange Commission on or about March
2, 1995, as amended.
1. The undersigned are the President and Vice
President/Corporate Secretary, respectively, of HB, a corporation organized and
existing under the laws of the State of Georgia, and in such capacities have
access to the information contained herein.
2. To the best knowledge and belief of such officers,
the following facts and representations made on behalf of the management of HB,
presented to Powell, Goldstein, Frazer & Murphy in connection with rendering
the Tax Opinion referred to in the Agreement, are on the date hereof true,
correct, and complete.
3. The Merger is expected to (i) expand HB's market
share by providing it with a presence in Cherokee County, Georgia, which is a
region of strategic importance to HB, and (ii) strengthen the franchise and
thereby make a long-term contribution to earnings per share.
4. The payment of cash in lieu of fractional shares of
HB Common Stock is solely for the purpose of avoiding the expense and
inconvenience to HB of issuing fractional shares and is not separately
bargained-for consideration. The total cash consideration that will be paid in
the Merger to the SBI shareholders in lieu of issuing fractional shares of HB
stock will not exceed one percent (1%) of the total consideration that will be
issued in the Merger to the SBI shareholders in exchange for their shares of
SBI stock. The fractional share interests of each SBI shareholder will be
aggregated, and no SBI shareholder will receive cash in an amount equal to or
greater than the value of one full share of HB stock.
5. The fair market value of the HB Common Stock and
cash, if any, received by the shareholders of SBI will be, in each instance,
approximately equal to the fair market value of the SBI Common Stock
surrendered in exchange therefor.
6. HB has no present plan or intention to reacquire any
of its Common Stock issued in the Merger. HB knows of no plan or intention by
any shareholders of SBI to sell, exchange, or otherwise dispose of any of the
shares of HB Common Stock received by them in the Merger. In addition, HB is
not aware of any transfers of SBI Common Stock by any of SBI's shareholders
prior to the Effective Time of the Merger which were made in contemplation
-1-
<PAGE> 5
of the Merger, nor is HB aware of SBI having redeemed any stock or of having
made any distribution with respect to any of its stock in anticipation of, or
as part of a plan involving, the acquisition of SBI by HB other than pursuant
to shareholder statutory dissenter's rights.
7. Following the Effective Time, it is HB's plan that it
will either (i) continue the historic business of SBI's wholly-owned
subsidiary, Security State Bank ("SSB"), or (ii) use, as a going concern, a
significant portion of SSB's business assets. HB has no plan or intention to
sell or otherwise dispose of any of the assets of SBI acquired in the
transaction except for dispositions made in the ordinary course of business, or
transfers to a corporation controlled by HB. For purposes of the foregoing, HB
is considered to control a corporation in which it holds at least eighty
percent (80%) of the total combined voting power of all classes of stock
entitled to vote and at least eighty percent (80%) of the total number of all
other classes of stock.
8. HB has paid or will pay expenses it incurred in
connection with the Merger. HB did not and will not pay the expenses of SBI or
any shareholder of SBI incurred in connection with the Merger.
9. There is no indebtedness outstanding between SBI and
HB, which was issued, acquired, or will be settled at a discount.
10. Not more than twenty-five percent (25%) of the fair
market value of HB's total assets consist of stock and securities of any one
issuer, and not more than fifty percent (50%) of the fair market value of its
total assets consists of stock and securities of five or fewer issuers. For
purposes of the preceding sentence, (a) a corporation's total assets exclude
cash, cash items (including accounts receivable and cash equivalents), and
United States government securities, (b) a corporation's total assets exclude
stock and securities issued by any subsidiary at least fifty percent (50%) of
the voting power or fifty percent (50%) of the total fair market value of the
stock of which is owned by the corporation, but the corporation is treated as
owning directly a ratable share (based on the percentage of the fair market
value of the subsidiary's stock owned by the corporation) of the assets owned
by any such subsidiary, and (c) all corporations that are members of the same
"controlled group" within the meaning of section 1563(a) of the Code are
treated as a single issuer.
11. The fair market value of the assets of SBI
transferred to HB equalled or exceeded the sum of the liabilities assumed by HB
plus the amount of the liabilities, if any, to which the transferred assets are
subject.
12. None of the compensation received by any
shareholder-employees of SBI was or will be separate consideration for, or
allocable to, any of their shares of SBI Common Stock; none of the shares of HB
Common Stock or cash, if any, received by any shareholder-employees of SBI is
separate consideration for, or allocable to, any employment agreement; and the
compensation paid to any shareholder-employees of SBI is or will be for
services actually rendered and was or will be commensurate with amounts paid to
third parties bargaining at arm's length for similar services.
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<PAGE> 6
13. The liabilities of SBI, if any, assumed by HB and the
liabilities to which the transferred assets of SBI are subject were incurred by
SBI in the ordinary course of its business.
14. The transfer of assets pursuant to the Merger
Agreement does not constitute a transfer in a "title 11 or similar case" as
such term is defined in Section 368(a)(3) of the Code.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands as of this 18th day of April, 1995.
David D. Stovall
----------------
David D. Stovall
Edward D. Ariail
----------------
Edward D. Ariail
-3-
<PAGE> 7
CERTIFICATE OF
SECURITY BANCORP, INC.
In connection with the merger of Security Bancorp, Inc.
("SBI") with and into Habersham Bancorp ("HB") with HB as the surviving entity,
and in accordance with the Agreement and Plan of Merger by and between SBI and
HB dated as of January 16, 1995 (the "Agreement"), C. Mickle Moye, President,
of SBI, makes the following certifications. Unless otherwise indicated, terms
used in this certificate have the same meaning as in the Form S-4 Registration
Statement filed with the Securities and Exchange Commission on or about March
2, 1995, as amended.
1. The undersigned is the President and Chief Financial
Officer of SBI, a corporation organized and existing under the laws of the
State of Georgia, and in such capacities has access to the information
contained herein.
2. To the best knowledge and belief of such officer, the
following facts and representations made on behalf of the management of SBI,
presented to Powell, Goldstein, Frazer & Murphy in connection with rendering
the Tax Opinion referred to in the Agreement, are on the date hereof, true,
correct, and complete.
3. SBI has paid or will pay the expenses it incurred in
connection with the Merger. SBI did not and will not pay the expenses of HB or
any shareholder of SBI incurred in connection with the Merger.
4. There is no indebtedness outstanding between SBI and
HB which was issued, acquired or will be settled at a discount.
5. Not more than 25 percent of the fair market value of
SBI's total assets consist of stock and securities of any one issuer, and not
more than 50 percent of the fair market value of its total assets consists of
stock and securities of five or fewer issuers. For purposes of the preceding
sentence, (a) a corporation's total assets exclude cash, cash items (including
accounts receivable and cash equivalents), and United States government
securities, (b) a corporation's total assets exclude stock and securities
issued by any subsidiary at least 50 percent of the voting power or 50 percent
of the total fair market value of the stock of which is owned by the
corporation, but the corporation is treated as owning directly a ratable share
(based on the percentage of the fair market value of the subsidiary's stock
owned by the corporation) of the assets owned by any such subsidiary, and (c)
all corporations that are members of the same "controlled group" within the
meaning of section 1563(a) of the Code are treated as a single issuer.
6. SBI is not aware of any transfers of SBI Common Stock
by any of its shareholders prior to the Effective Date of the Merger which were
made in contemplation of the Merger, nor did SBI redeem any of its stock in
anticipation of, or as part of a plan involving, the acquisition of SBI by HB
other than pursuant to shareholder statutory dissenter's rights.
<PAGE> 8
7. No holders of SBI Common Stock who receive shares of
HB Common Stock pursuant to the Merger Agreement, plan or intend to sell,
exchange, or otherwise dispose of a number of shares of HB Common Stock
received pursuant to the Merger such that the ownership of HB Common Stock by
the holders of SBI Common Stock would be reduced to a number of shares having a
value, as of the Effective Time, which was less than fifty percent (50%) of the
fair market value of the outstanding SBI Common Stock as of the Effective Time.
For purposes hereof, shares of SBI Common Stock exchanged for cash or other
property, surrendered by dissenters, or exchanged for cash in lieu of HB
fractional shares, shall be deemed to be outstanding SBI Common Stock as of the
Effective Time. Moreover, all shares of SBI Common Stock and shares of HB
Common Stock held by SBI shareholders and otherwise sold, redeemed or disposed
of prior or subsequent to the Merger have been considered in making this
representation.
8. The liabilities of SBI, if any, assumed by HB and the
liabilities to which the transferred assets of SBI are subject were incurred by
SBI in the ordinary course of its business.
9. The fair market value of assets of SBI transferred to
HB equalled or exceeded the sum of the liabilities assumed by HB plus the
amount of liabilities, if any, to which the transferred assets were subject.
10. The fair market value of the HB Common Stock and
cash, if any, received by each SBI shareholder approximately equalled the fair
market value of the SBI Common Stock surrendered in the Merger.
11. The transfer of assets pursuant to the Merger
Agreement does not constitute a transfer in a "title 11 or similar case" as
such term is defined in Section 368(a)(3) of the Code.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
as of this 20th day of April, 1995.
/s/ C. Mickle Moye
------------------
C. Mickle Moye
-2-
