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As filed with the Securities and Exchange Commission on March 24, 1998
Registration No. 333-_____________
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
1996 INCENTIVE STOCK OPTION PLAN
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(Full Title of the Plan)
KATHRYN L. KNUDSON, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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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, $1.00 250,000 $19.50(2) $4,875,000(3) $1,439
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 1996
Incentive 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 March 18, 1998.
(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
employees of the Registrant 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, 1996 (File No. 0-13153);
(2) The Registrant's Quarterly Reports on Form 10-QSB for the quarters
ended March 30, 1997, June 30, 1997 and September 30, 1997; and
(3) The description of the Company's Common stock contained in the
Company's Registration Statement filed pursuant to Section 12 of 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
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
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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. 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:
<TABLE>
<CAPTION>
Exhibit
No. Description
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<S> <C>
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 LLP,
with respect to the securities being registered.
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).
</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;
(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
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amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information setforth 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 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 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 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 Cornelia, State of Georgia, on this the 23rd day of
March, 1998.
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 on March 23, 1998 by the following persons in
the capacities indicated.
<TABLE>
<S> <C>
/s/ Thomas A. Arrendale, Jr. Chairman of the Board and Director
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Thomas A. Arrendale, Jr.
/s/ Thomas A. Arrendale, III Vice Chairman of the Board and Director
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Thomas A. Arrendale, III
/s/ David D. Stovall President, Chief Executive Officer and
- ------------------------------- Director (principal executive, financial and
David D. Stovall accounting officer)
/s/ James Holcomb Director
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James Holcomb
/s/ James A. Stapleton, Jr. Director
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James A. Stapleton, Jr.
/s/ Kenneth White Director
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C. Kenneth White
/s/ Calvin R. Wilbanks Director
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Calvin R. Wilbanks
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
No. -----------
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<S> <C>
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, LLP
with respect to the securities being registered.
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).
</TABLE>
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* Indicates exhibit incorporated herein by reference to another public filing.
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EXHIBIT 5
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E.
SIXTEENTH FLOOR
ATLANTA, GEORGIA 30303
(404) 572-6600
March 23, 1998
Habersham Bancorp
Highway 441 North
P.O. Box 1980
Cornelia, Georgia 30531
Re: Registration Statement on Form S-8
Habersham Bancorp
Amended and Restated Incentive 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 250,000 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 selected officers and employees
of the Company and its subsidiaries pursuant to the Habersham Bancorp 1996
Incentive 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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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,
/s/ POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
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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 17, 1997, appearing in
the Annual Report on Form 10-KSB of Habersham Bancorp for the year ended
December 31, 1996.
Deloitte & Touche LLP
Atlanta, Georgia
March 17, 1998
