<PAGE>
As filed with the Securities and Exchange Commission on ______________, 1998.
Registration No. 333-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------
EUFAULA BANCCORP, INC.
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
DELAWARE 6711 63-0989868
(State of Incorporation) (Primary Standard Industrial (IRS Employer
Classification Code Number) Identification No.)
218-220 Broad Street
Eufaula, Alabama 36072
(334)687-3581
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Eufaula Bank & Trust Company Employee Stock Purchase Plan
Eufaula BancCorp, Inc. Stock Option Plan of 1994
Eufaula BancCorp, Inc. Director Stock Purchase Plan
Eufaula BancCorp, Inc. Non-Employee Director Fee Arrangement
(Full title of Plans)
------------------------------
Gregory B. Faison
President and Chief Executive Officer
Eufaula BancCorp, Inc.
218-220 Broad Street
Eufaula, Alabama 36072
(334)687-3581
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
-----------------------------------
Copies to:
Michael D. Waters
Balch & Bingham LLP
No. 2 Dexter Avenue
Montgomery, Alabama 36104-3515
(334)834-6500
------------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable following the effective date of this Registration Statement.
------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================
Title of each class Proposed Maximum Proposed Maximum Amount
of Securities Amount to be Offering Price Aggregate of
to be Registered Registered Per Share Offering Price Registration Fee(1)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$1.00 par value 364,000(2) Not Applicable $5,969,500 $1,758.35
- ---------------------------------------------------------------------------------------------------------
(1) Computed in accordance with Rule 457(c) and (h) based upon the market value of Registrant's common
stock at April 20, 1998.
(2) 25,000 shares are registered pursuant to the Employee Stock Purchase Plan, 289,000 shares are
registered pursuant to the Stock Option Plan of 1994, 25,000 shares are registered pursuant to the
Director Stock Purchase Plan and 25,000 shares are registered pursuant to the Non-Employee Director
Fee Arrangement.
The Registration 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 said Section 8(a), may determine.
=========================================================================================================
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Eufaula BancCorp, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1997, filed pursuant to Section 13 of the Securities Exchange Act
of 1934 (the "Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year referred to in (a) above; and
(c) The description of the Company's common stock contained in the
Company's Form 10-SB/A filed October 30, 1997.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
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.
The Company's Restated Certificate of Incorporation, subject to
certain exceptions, eliminates the potential personal liability of a director
for monetary damages to the Company or its shareholders for breach of duty as a
director. There is no elimination of liability for (1) any breach of the
director's duty of loyalty to the corporation or its stockholders, (2) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) under Section 174 of Title 8 of the Delaware Code, or (4)
any transaction from which the director derived an improper personal benefit.
The Company's Restated Certificate of Incorporation does not eliminate or limit
the right of the Company or its shareholders to seek injunctive or other
equitable relief not involving monetary damages.
<PAGE>
The Company's Restated Certificate of Incorporation and By-Laws provide
that the Company shall indemnify its officers, directors, employees and agents
to the extent permitted by the Delaware General Corporation Law (the "DGCL").
Section 145 of the DGCL permits a corporation to indemnify any person who was or
is a party or is threatened to be made a party or any threatened, pending or
completed claim, action, suit or proceeding by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, against expenses
(including attorney's fees), judgments, fines and settlements incurred by him in
connection with any such suit or proceeding, if he acted in good faith and in
manner reasonably believed to be in or not opposed to the best interest of the
corporation, and, in the case of a derivative action on behalf of the
corporation, permits a corporation to indemnify any such action only against
expenses and then only if such person is not adjudged liable for negligence or
misconduct.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as a part of this Registration Statement:
Exhibit
Number Description of Exhibits
------- -----------------------
4.1 Eufaula Bank & Trust Company Employee Stock
Purchase Plan (filed as Exhibit 10.1 to the Registrant's
Annual Report on Form 10-KSB (File Number 33-
23062), filed with the Commission on April 29, 1994 and
incorporated herein by reference.)
4.2 Registrant's Stock Option Agreement (filed as Exhibit
10.3 to the Registrant's Annual Report on Form 10-KSB
(File Number 33-23062), filed with the Commission on
April 29, 1994 and incorporated herein by reference).
4.3 Registrant's Director Stock Purchase Plan (filed as
Exhibit 10.4 to the Registrant's Annual Report on Form
10-KSB (File Number 33-23062), filed with the
Commission on March 19, 1998, and incorporated by
reference.)
4.4 Registrant's Non-Employee Director Fee Arrangement.
5 Opinion of Balch & Bingham LLP regarding certain legal
matters.
<PAGE>
23.1 Consent of Mauldin & Jenkins, LLC.
23.2 Consent of Balch & Bingham LLP (contained in their
legal opinion at Exhibit 5 above).
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
(1) To file, during any period in which it offers or sells securities,
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 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the Registration Statement; and
(iii) To include any additional or changed material
information on the plan of distribution.
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 with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or 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.
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the
Company 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
Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
<PAGE>
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 the
requirements for the 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 Eufaula, Alabama, on April 21, 1998.
EUFAULA BANCCORP, INC.
By: /s/ Gregory B. Faison
------------------------
Gregory B. Faison
Chief Executive Officer
We, the undersigned directors of Eufaula BancCorp, Inc., do hereby
constitute and appoint Gregory E. Faison our true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for us and in our
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement on Form S-8 and to file the same, with all
exhibits thereto, and other documents in connection therewith, including any
amendments thereto, with the Securities and Exchange Commission and to file such
notices, reports or registration statements and amendments thereto with any
state securities authority or securities exchange or market, and we do hereby
ratify and confirm all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates stated.
SIGNATURE TITLE DATE
--------- ----- ----
Chief Executive Officer and
/s/ Gregory B. Faison Director (Principal Executive *
- ------------------------- Officer)
Gregory B. Faison
Treasurer (Principal Financial
/s/ Gloria Hagler Officer and Principal Accounting *
- ------------------------- Officer)
Gloria Hagler
/s/ Michael C. Dixon Director *
- -------------------------
Michael C. Dixon
<PAGE>
/s/ Robert M. Dixon *
- ------------------------- Director
Robert M. Dixon
/s/ James J. Jaxon, Jr. Director *
- -------------------------
James J. Jaxon, Jr.
/s/ Janis Biggers Director *
- -------------------------
Janis Biggers
/s/ Thomas Harris Director *
- -------------------------
Thomas Harris
/s/ Frank McRight Director
- -------------------------
Frank McRight
* April 21, 1998
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description of Exhibits
------- -----------------------
4.1 Eufaula Bank & Trust Company Employee Stock
Purchase Plan (filed as Exhibit 10.1 to the Registrant's
Annual Report on Form 10-KSB (File Number 33-23062),
filed with the Commission on April 29, 1994 and
incorporated herein by reference.)
4.2 Registrant's Stock Option Agreement (filed as Exhibit
10.3 to the Registrant's Annual Report on Form 10-KSB
(File Number 33-23062), filed with the Commission on
April 29, 1994 and incorporated herein by reference).
4.3 Registrant's Director Stock Purchase Plan (filed as
Exhibit 10.4 to the Registrant's Annual Report on Form
10-KSB (File Number 33-23062), filed with the
Commission on March 19, 1998, and incorporated by
reference.)
4.4 Registrant's Non-Employee Director Fee Arrangement.
5 Opinion of Balch & Bingham LLP regarding certain
legal matters.
23.1 Consent of Mauldin & Jenkins, LLC.
23.2 Consent of Balch & Bingham, LLP (contained in their
legal opinion at Exhibit 5 above)
<PAGE>
EXHIBIT 4.4
EUFAULA BANCCORP, INC.
NON-EMPLOYEE DIRECTOR FEE ARRANGEMENT
ELECTION TO RECEIVE
COMPANY STOCK
I. OVERVIEW AND PURPOSE.
The Board of Directors of Eufaula BancCorp, Inc. (the "Company") on March
20, 1998 approved the Eufaula BancCorp, Inc. Non-Employee Director Fee
Arrangement (the "Fee Arrangement") which allows each Non-Employee Director to
elect to receive shares of the Company's $1.00 par value common stock (the
"Common Stock") in lieu of all or a portion of such Non-Employee Director's
annual retainer fee paid in respect of service on the Company's Board of
Directors. For purposes of this Fee Arrangement, the term "Non-Employee
Director" shall mean each member of the Board of Directors of the Company or any
subsidiary of the Company who is not an employee of the Company or any of its
subsidiaries at the date of each grant of Common Stock under this Fee
Arrangement. Pursuant to the Fee Arrangement, Non-Employee Directors may elect
to receive some or all of their regular director fees in Company stock, rather
than in cash. The Company stock under this Fee Arrangement will be purchased
for the director on the open market at the Company's expense.
An election by a Non-Employee Director to receive stock under this Fee
Arrangement shall be made by completing and signing the following election form
and will be effective as of the next regular payment date on which the Company
pays director fees following the date of the election. Such an election shall
continue in effect until receipt by the Company of a subsequent written election
by the Non-Employee Director to discontinue receiving common stock in lieu of
cash or to change the amount of such election, or until such Non-Employee
Director's termination as a director for the Company.
II. TERMS AND CONDITIONS OF THE FEE ARRANGEMENT.
The following election and all awards of Common Stock received pursuant to
such election, including the determination of the number of shares to be
received by the undersigned Non-Employee Director based on the election
contained herein, will be subject to the following terms and conditions:
(a) Administration. This Fee Arrangement and all elections hereunder
--------------
shall be administered by the Compensation Committee (the "Committee") of
the Board of Directors of the Company. The amount of Common Stock
purchased under the Fee Arrangement shall be determined pursuant to the
following election by the Non-Employee Director. However, the Committee
shall have full authority to
<PAGE>
promulgate such rules and regulations with respect to the Fee Arrangement
as it deems desirable, and to make all other determinations necessary or
appropriate for the administration of the Fee Arrangement and such
determinations shall be final and binding upon all persons having an
interest in the Fee Arrangement.
(b) Elections. Each Non-Employee Director may elect, pursuant to the
---------
following written irrevocable election, to receive Common Stock in lieu of
part or all of such non-employee director's director fee. Such election
shall be effective beginning on the next regular payment date for director
fees following the date of such election. Such an election shall continue
in effect until receipt by the Company of a subsequent written election by
the Non-Employee Director to discontinue receiving common stock in lieu of
cash or to change the amount of such election, or until such Non-Employee
Director's termination as a director for the Company. The number of shares
of Common Stock granted to a Non-Employee Director pursuant to such
election shall be equal to the dollar amount of the annual retainer fee
which the Non-Employee Director has elected not to receive, divided by the
Fair Market Value of the Common Stock as of each applicable payment date;
provided, however, that no fractional shares of Common Stock shall be
awarded under the Fee Arrangement. "Fair Market Value" for purposes of the
Fee Arrangement shall mean the average of the closing bid and asked prices
for the date of determination if the Common Stock is publicly traded or, if
the stock is not publicly traded, the fair market value of such Common
Stock as determined in good faith by the Board of Directors of the Company
using such methodology as the Board in its sole discretion may deem
appropriate.
All such shares of Common Stock purchased under this Fee Arrangement
shall be purchased by the Company on behalf of the Non-Employee Director on
the open market. Such shares shall be purchased at the Company's expense
and shall not be subject to any restrictions on the Non-Employee Director's
sale, transfer, pledge or assignment of such shares. Furthermore, each
Non-Employee Director shall be immediately vested in such shares and shall
have full rights with respect to ownership of such shares of Common Stock
received under this Fee Arrangement.
(c) Termination or Amendment of the Fee Arrangement. The Board of
-----------------------------------------------
Directors of the Company may suspend or terminate this Fee Arrangement or
any portion thereof at any time, and the Board may amend this Fee
Arrangement from time to time as may be deemed in the best interests of the
Company; provided, however, that no such amendment, alteration or
discontinuation shall be made that would in any way impair shares of Common
Stock previously awarded under this Fee Arrangement.
(d) No Right of Continued Service. Nothing in this Fee Arrangement
-----------------------------
shall be deemed to create any obligation on the part of the Board of
Directors of the Company to nominate any Non-Employee Director for
reelection by the Company's Stockholders.
<PAGE>
(e) Payment of Taxes. Each Non-Employee Director shall be responsible
----------------
for payment of any taxes required by law with respect to the purchase or
delivery of any shares of Common Stock pursuant to the Fee Arrangement.
The Company shall have the right, prior to delivery of any Common Stock
under this Fee Arrangement, to require the Non-Employee Director to pay any
taxes in cash.
(f) Governing Law. This Fee Arrangement and all actions taken
-------------
thereunder shall be governed by and construed in accordance with the laws
of the State of Delaware (other than its law affecting choice of law). The
Fee Arrangement shall be construed to comply with all applicable law, and
to avoid liability to the Company or a Non-Employee Director, including
without limitation or liability under Section 16(b) of the Securities
Exchange Act of 1934, as amended. If any provision of the Fee Arrangement
or any award hereunder would disqualify the Fee Arrangement or such award
or would otherwise not comply with Rule 16b-3, such provision or award
shall be construed or deemed amended to conform to Rule 16b-3.
(g) Successors and Assigns. This Fee Arrangement shall inure to the
----------------------
benefit of and be binding upon each successor and assign of the Company.
All obligations imposed upon a non-employee director, and all rights
granted to the Company hereunder, shall be binding upon the Non-Employee
Director's heirs, legal representative and successors.
III. ELECTION TO RECEIVE STOCK IN LIEU OF CASH.
In accordance with this Fee Arrangement, the undersigned Non-Employee
Director of the Company hereby elects to receive shares of the Company's Common
Stock, as set forth below, in lieu of the director fees to which the undersigned
director is entitled to receive in respect of his service as a member of the
Company's Board of Directors:
[_] a. All director fees to which the undersigned Non-Employee Director
is entitled to receive
[_] b. ___________ % of director fees to which the undersigned Non-
Employee Director is entitled to receive
[_] c. $__________ per year of director fees to which the undersigned
Non-Employee Director is entitled to receive
Such election to receive Common Stock in lieu of director fees shall be
effective beginning on the next regular payment date for director fees following
the date of this election and shall continue until the Company receives a
subsequent election from the undersigned Non-Employee Director terminating or
amending this election or until such Non-Employee Director's termination with
the Company.
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
_______________________, 199____.
______________________________
Director
<PAGE>
EXHIBIT 5
April 20, 1998
Eufaula BancCorp, Inc.
218-220 Broad Street
Eufaula, Alabama 36027
Re: Registration Statement on Form S-8 relating to the issuance
of shares of common stock of Eufaula BancCorp, Inc.
Ladies and Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by
Eufaula BancCorp, Inc., a Delaware corporation (the "Company") in connection
with the proposed issuance by the Company of shares of its common stock, par
value of $1.00 per share, pursuant to its Employee Stock Purchase Plan, its
Stock Option Plan of 1994, its Director Stock Purchase Plan and its Non-Employee
Director Fee Arrangement (collectively the "Plans"). We have also acted as
counsel for the Company in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, of the
Registration Statement on Form S-8 referred to in the caption above relating to
shares to be sold pursuant to the Plans. In this connection we have reviewed
the Plans and such documents and matters of law as we have deemed relevant and
necessary as a basis for the opinions expressed herein.
Upon the basis of the foregoing, we are of the opinion that:
(i) The Company is a corporation duly organized and existing under
the laws of the State of Delaware;
(ii) The shares of common stock of the Company referred to above, to
the extent actually issued by the Company pursuant to the Plans, will, when so
issued, be duly and validly authorized and issued and will be fully paid and
non-assessable shares of common stock of the Company;
(iii) Under the laws of the State of Delaware, no personal
liability attaches to the ownership of the shares of common stock of the
Company.
<PAGE>
The opinion expressed above is limited by the following assumptions,
qualifications and exceptions:
(a) We are licenced to practice law only in the State of Alabama;
(b) The opinion stated herein is based upon statutes, regulations, rules,
court decisions and other authorities existing and effective as of the date of
this opinion, and we undertake no responsibility to update or supplement such
opinion in the event of or in response to any subsequent changes in the law or
such authorities, or upon the occurrence after the date hereof of events or
circumstances that, if occurring prior to the date hereof, might have resulted
in a different opinion;
(c) This opinion has been rendered solely for the benefit of Eufaula
BancCorp, Inc., and no other person or entity shall be entitled to rely hereon
without our express written consent; and
(d) This opinion is limited to the legal matters expressly set forth
herein, and no opinion is to be implied or inferred beyond the legal matters
expressly so addressed.
We hereby consent to the filing of this opinion as an exhibit to the above-
referenced registration statement. In consenting to the inclusion of our
opinion in the Registration Statement, we do not thereby admit that we are a
person whose consent is required pursuant to Section 7 of the Securities Act of
1933, as amended.
Sincerely yours,
BALCH & BINGHAM LLP
By:/s/ Michael D. Waters
---------------------
Michael D. Waters
MDW/trh
<PAGE>
EXHIBIT 23.1
CONSENT
We consent to the incorporation by reference in this registration statement
on Form S-8 of our opinion dated February 4, 1998 relating to the financial
statements of Eufaula BancCorp, Inc.
/s/ Mauldin & Jenkins, LLC
--------------------------
Mauldin & Jenkins, LLC
April 14, 1998
