<PAGE>
As filed with the Securities and Exchange Commission on June 25, 1999.
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 BancCorp, Inc. 1999 Stock Option Plan
(Full title of Plan)
----------------
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.
----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
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 361,000 Not Applicable $4,828,375 $1342.89
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Computed in accordance with Rule 457(c) and (h) based upon the market value
of Registrant's common stock at June 22, 1999, of $13-3/8 per share.
================================================================================
<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, 1998, 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 BancCorp, Inc. 1999 Stock Option Plan.
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).
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");
<PAGE>
(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.
(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 June 25, 1999.
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
--------- ----- ----
/s/ Gregory B. Faison Chief Executive Officer and
- ------------------------- Director (Principal Executive *
Gregory B. Faison Officer)
/s/ John Burns Chief Financial Officer *
- -------------------------
John Burns
/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
* June 25, 1999
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description of Exhibits
- -------- -----------------------
4.1 Eufaula BancCorp, Inc., 1999 Stock Option Plan.
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 4.1
EUFAULA BANCCORP, INC.
1999 STOCK OPTION PLAN
ARTICLE I
PURPOSE, SCOPE AND ADMINISTRATION OF THE PLAN
1.1 Purpose
The purpose of the Plan is to promote the long-term success of the Company
by providing financial incentives to employees and directors who are in
positions to make significant contributions toward such success, to attract
individuals of outstanding ability to employment with the Company and to
encourage employees and directors to acquire a proprietary interest in the
Company.
1.2 Definitions
Unless the context clearly indicates otherwise, for purposes of this Plan
the following terms have the respective meanings set forth below:
(a) "Board of Directors" means the Board of Directors of Eufaula BancCorp,
Inc.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means a committee of the Board of Directors (or any
successor committee thereto), which shall be composed of not less than
two members of the Board of Directors who are "non-employee directors"
within the meaning of Rule 16b-3 of the Securities Exchange Act of
1934, or any successor thereto.
(d) "Common Stock" means the common stock of the Company, par value $1.00
per share, or such other class of shares or other securities to which
the provisions of the Plan may be applicable by reason of the operation
of Section 3.1 hereof.
(e) "Company" means Eufaula BancCorp, Inc. and its majority owned
subsidiaries, including subsidiaries which become such after the date
of adoption of this Plan.
(f) "Fair Market Value" of a share of Common Stock on any particular date
means the closing price quoted on such date by the National Daily
Quotation Service, or on the National Association of Securities Dealers
Automated Quotation ("NASDAQ") System or a registered securities
exchange, if listed thereon. In the event that the closing price is not
so quoted, then the Fair Market Value shall be the price determined by
the National Association of Securities Dealers, Inc. ("NASD") local
quotations committee as most recently published in The Wall Street
Journal. In the
<PAGE>
event that no such price is published, then Fair Market Value shall be
the fair market value as determined by the Board of Directors.
(g) "Grant Date," as used with respect to a particular Option means the
date as of which such Option, right or award is granted by the
Committee pursuant to the Plan.
(h) "Grantee" means the person to whom an Option is granted by the
Committee pursuant to the Plan.
(i) "Incentive Stock Option" means an Option that qualifies as an incentive
stock option as described in Section 422(b) of the Code.
(j) "Option" means an option granted by the Committee pursuant to Article
II.
(k) "Option Agreement" means the agreement between the Company and a
Grantee under which the Grantee is granted an Option pursuant to the
Plan.
(l) "Option Period" means the period fixed by the Committee during which an
Option may be exercised, which period may be determined by the
Committee in its sole discretion, provided that no Incentive Stock
Option shall, under any circumstances, be exercisable more than ten
years after the Grant Date.
(m) "Plan" means this 1999 Stock Option Plan, as amended from time to time.
(n) "Retirement," as applied to a Grantee, means the Grantee's termination
of employ ment in a manner which qualifies the Grantee to receive
immediately payable retirement benefits under any retirement plan
hereafter adopted by the Company, or which in the absence of any such
retirement plan is determined by the Committee to constitute
retirement.
(o) "Supplemental Stock Option" means any Option granted under this Plan,
other than an Incentive Stock Option.
(p) "Total and Permanent Disability," as applied to a Grantee, means that
the Grantee (1) has established to the satisfaction of the Committee
that the Grantee is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to last for a continuous period of not
less than 12 months (all within the meaning of Section 22(e)(3) of the
Code), and (2) has satisfied any requirement imposed by the Committee
in regard to evidence of such disability.
2
<PAGE>
1.3 Shares Available Under the Plan
(a) The number of shares of Common Stock with respect to which Options may
be granted shall be 361,000 shares of Common Stock, subject to
adjustment in accordance with the remainder of this Section 1.3 and
Section 3.1, provided that it is the intention of the Company to have
no more than 361,000 shares of its Common Stock subject to stock
options under any existing plans.
(b) In the event that any Option expires or otherwise terminates prior to
being fully exercised, the Committee may, without decreasing the number
of shares authorized above in this Section 1.3, grant new Options
hereunder to any eligible Grantee for the shares with respect to which
the expired or terminated Option was not exercised.
(c) Any shares of Common Stock to be delivered by the Company upon the
exercise of Options shall, at the discretion of the Board of Directors,
be issued from the Company's authorized but unissued shares of Common
Stock or be transferred from any available treasury stock.
1.4 Administration of the Plan
(a) Except as provided in Section 1.4 (c), the Plan shall be administered
by the Committee which shall have the authority:
(1) To determine those employees of the Company to whom, and the times
at which, Options shall be granted and the number of shares of
Common Stock to be subject to each such Option and/or award, taking
into consideration the nature of the services rendered by the
particular employee, the employee's potential contribution to the
long term success of the Company and such other factors as the
Committee in its discretion shall deem relevant;
(2) To interpret and construe the provisions of the Plan and to
establish rules and regulations relating to it;
(3) To prescribe the terms and conditions of the Option Agreements for
the grant of Options (which need not be identical) in accordance
and consistent with the requirements of the Plan; and
(4) To make all other determinations necessary or advisable to
administer the Plan in a proper and effective manner.
(b) All decisions and determinations of the Committee in the administration
of the Plan and in response to questions or in connection with other
matters concerning the Plan or any Option shall (whether or not so
stated in the particular instance in the Plan)
3
<PAGE>
be final, conclusive and binding on all persons, including, without
limitation, the Company, the shareholders and directors of the Company
and any persons having any interest in any Options which may be granted
under the Plan.
(c) In all cases in this Plan in which the Committee is authorized or
directed to take action, such action may be taken instead by the Board
of Directors as a whole. It is the intention of this Plan that the
Committee may be appointed by the Board of Directors for convenience
and efficiency of administration, but such appointment is not a
requirement of this Plan.
1.5 Eligibility for Awards
The Committee shall designate from time to time the employees of the
Company who are to be granted Options. All salaried employees of the
Company are eligible to receive Options. Members of the Board of Directors
who are not employees may only be granted Supplemental Stock Options.
1.6 Effective Date of Plan
Subject to the receipt of all required regulatory approvals, the Plan shall
become effective upon its adoption by the Board of Directors, provided
that any grant of Options under the Plan prior to approval of the Plan by
the shareholders of the Company is subject to such shareholder approval
within twelve months of adoption of the Plan by the Board of Directors.
ARTICLE II
STOCK OPTIONS
2.1 Grant of Options
(a) The Committee may from time to time, subject to the provisions of the
Plan, grant Options to employees or directors under appropriate Option
Agreements to purchase shares of Common Stock.
(b) The Committee may designate any Option which satisfies the requirements
of Section 2.3 hereof as an Incentive Stock Option and may designate
any Option granted hereunder as a Supplemental Stock Option, or the
Committee may designate a portion of an Option as an Incentive Stock
Option (so long as that portion satisfies the requirements of Section
2.3 hereof) and the remaining portion as a Supplemental Stock Option.
Any portion of an Option that is not designated as an Incentive Stock
Option shall be a Supplemental Stock Option. A Supplemental Stock
Option must satisfy the requirements of Section 2.2 hereof, but shall
not be subject to the requirements of Section 2.3.
4
<PAGE>
2.2 Option Requirements
(a) An Option shall be evidenced by an Option Agreement specifying the
number of shares of Common Stock that may be purchased upon its
exercise and containing such terms and conditions not inconsistent with
the Plan and based on such factors as the Committee shall determine, in
its sole discretion, to be applicable to that particular Option.
(b) An Option shall be exercisable at such time or times and subject to
such terms and conditions as shall be determined by the Committee and
stated in the Option Agreement; provided, however, that an Option shall
become immediately exercisable upon the death of an employee or upon
employment with the Company ceasing because of Total and Permanent
Disability or upon the application of any change in control provisions
which may be contained in the Option Agreement. If the Committee
provides that any Option is exercisable only in installments or
provides other vesting requirements, the Committee may waive such
provisions at any time, in whole or in part, based on such factors as
the Committee shall, in its sole discretion, determine.
(c) An Option shall expire by its terms at the expiration of the Option
Period and shall not be exercisable thereafter; provided, however, that
an Option may be exercised immediately upon the death of the Grantee
and for a period of up to 365 days after the death of the Grantee
despite the expiration during that time of the Option Period, except
that an Incentive Stock Option can never be exercised more than 10
years after its Grant Date.
(d) The Committee may provide in the Option Agreement for the expiration or
termination of the Option prior to the expiration of the Option Period,
upon the occurrence of any event specified by the Committee.
(e) The option price per share of Common Stock shall be determined by the
Committee at the time of grant but shall be not less than 100% of the
Fair Market Value of a share of Common Stock on the Grant Date.
(f) An Option shall not be transferable other than by will or the laws of
descent and distribution and, during the Grantee's lifetime, an Option
shall be exercisable only by the Grantee, or if the Grantee is disabled
and the Option remains exercisable, by his or her duly appointed
guardian or other legal representative.
(g) An option, to the extent that it has not previously been exercised,
shall terminate upon the earliest to occur of (1) the expiration of the
applicable Option Period as set forth in the Option Agreement granting
such Stock Option, (2) the expiration of 90 days after the Grantee's
Retirement, (3) the expiration of one year after the Grantee
5
<PAGE>
ceases to be an employee or director of the Company due to Total and
Permanent Disability, (4) subject to the application of the provisions
of subsection (c) above the expiration of one year after the Grantee
ceases to be an employee or director of the Company due to the death of
the Grantee, or (5) thirty days after the date on which a Grantee
ceases to be an employee or director of the Company for any reason
other than Retirement, Total and Permanent Disability or death, unless
the Option Agreement provides for earlier termination.
(h) A person electing to exercise an Option shall give written notice of
such election to the Company, in such form as the Committee may
require, accompanied by payment in cash or in such other manner as may
be approved by the Committee, of the full purchase price of the shares
of Common Stock for which the election is made. As determined by the
Committee, in its sole discretion, whether before or after the Grant
Date, payment in full or in part may be made in the form of
unrestricted Common Stock already owned by the Grantee or in the form
of a withholding of sufficient shares of Common Stock otherwise
issuable upon the exercise of the Option to constitute payment of the
purchase price based, in each case, on the Fair Market Value of the
Common Stock on the date the Option is exercised; provided that an
election to make such payment in Common Stock or to have shares so
withheld, in addition to being subject to the approval of the
Committee, shall be irrevocable.
Further, upon written request and authorization of the Grantee and to
the extent permitted by applicable law, the Committee may allow
arrangements whereby an Option may be exercised and the exercise price
(together with any tax withholding obligations of the Grantee) paid
pursuant to arrangements with brokerage firms permitted under
Regulation T of the Board of Governors of the Federal Reserve System
(or successor regulations or statutes). In no event, however, may such
transaction or arrangement take place if a violation by the Grantee of
the provisions of Section 16(b) of the Securities Exchange Act of 1934
("Section 16(b)"), if applicable, would result therefrom.
2.3 Incentive Stock Option Requirements
(a) An Option designated by the Committee as an Incentive Stock Option is
intended to qualify as an "incentive stock option" within the meaning
of Section 422(b) of the Code and shall satisfy, in addition to the
conditions of Section 2.2 above, the conditions set forth in this
Section 2.3.
(b) An Incentive Stock Option shall not be granted to an individual who, on
the Grant Date, owns stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company,
unless the Committee provides in the Option Agreement with any such
individual that the option price per share of Common Stock will not be
less than 110% of the Fair Market Value of a share of
6
<PAGE>
Common Stock on the Grant Date and that the Option Period will not
extend beyond five years from the Grant Date.
(c) The aggregate Fair Market Value, determined on the Grant Date, of the
shares of Common Stock as to which Incentive Stock Options are
exercisable for the first time by any Grantee with respect to the Plan
and incentive stock options (within the meaning of Section 422(b) of
the Code) under any other plan of the Company or any parent or
subsidiary thereof, in any calendar year shall not exceed $100,000.00.
ARTICLE III
GENERAL PROVISIONS
3.1 Adjustment Provisions
(a) In the event of (1) any dividend payable in shares of Common Stock; (2)
any recapitalization, reclassification, split-up or consolidation of,
or other change in, the Common Stock; or (3) an exchange of the
outstanding shares of Common Stock, in connection with a merger,
consolidation or other reorganization of or involving the Company or a
sale by the Company of all or a portion of its assets, for a different
number or class of shares of stock or other securities of the Company
or for shares of the stock or other securities of any other corporation
(whether issued to the Company or to its shareholders); the number of
shares of Common Stock available under the Plan pursuant to Section 1.3
shall be adjusted to appropriately reflect the occurrence of the event
specified in clauses (1), (2) or (3) above and the Committee shall, in
such manner as it shall determine in its sole discretion, appropriately
adjust the number and class of shares or other securities which shall
be subject to Options or the purchase price per share which must be
paid thereafter upon exercise of any Option. Any such adjustments made
by the Committee shall be final, conclusive and binding upon all
persons, including, without limitation, the Company, the sharehold ers
and directors of the Company and any persons having any interest in any
Options which may be granted under the Plan.
(b) Except as provided in paragraph (a) immediately above, issuance by the
Company of shares of stock of any class or securities convertible into
shares of stock of any class shall not affect the Options.
3.2 Additional Conditions
(a) Any shares of Common Stock issued or transferred under any provision of
the Plan may be issued or transferred subject to such conditions, in
addition to those specifically provided in the Plan, as the Committee
or the Company may impose.
7
<PAGE>
(b) If prior to the time a Grantee has exercised all Options, the Committee
or the Corporate Secretary of the Company receives from the Company
notice of suspected dishonesty of the Grantee, or of suspected conduct
by the Grantee which causes or reasonably may be expected to cause
substantial damage to the Company or one or more of its subsidiaries,
each Option, to the extent not previously exercised, shall terminate
immediately and neither the Grantee nor any one claiming under him
shall have any rights thereto.
3.3 No Rights as Shareholder or to Employment
No Grantee or any other person authorized to purchase Common Stock upon
exercise of an Option shall have any interest in or shareholder rights with
respect to any shares of Common Stock which are subject to any Option until
such shares have been issued and delivered to the Grantee or any such
person pursuant to the exercise of such Option. Furthermore, the Plan
shall not confer upon any Grantee any rights of employment with the
Company, including without limitation any right to continue in the employ
of the Company, or affect the right of the Company to terminate the
employment of a Grantee at any time, with or without cause.
3.4 General Restrictions
Each award under the Plan shall be subject to the requirement that, if at
any time the Committee shall determine that (a) the listing, registration
or qualification of the shares of Common Stock subject or related thereto
upon any securities exchange or under any state or federal law, or (b) the
consent or approval of any government regulatory body, or (c) an agreement
by the recipient of an award with respect to the disposition of shares of
Common Stock, is necessary or desirable as a condition of, or in connection
with, the granting of such award or the issue or purchase of shares of
Common Stock thereunder, such award may not be consummated in whole or in
part unless such listing, registration, qualification, consent, approval or
agreement shall have been effected or obtained free of any conditions not
acceptable to the Committee. A participant shall agree, as a condition of
receiving any award under the Plan, to execute any documents, make any
representations, agree to restrictions on stock transferability and take
any actions which in the opinion of legal counsel to the Company are
required by any applicable law, ruling or regulation. The Company is in no
event obligated to register any such shares, to comply with any exemption
from registration requirements or to take any other action which may be
required in order to permit, or to remedy or remove any prohibition or
limitation on, the issuance or sale of such shares to any Grantee or other
authorized person.
3.5 Rights Unaffected
(a) The existence of the Options shall not affect: the right or power of
the Company or its shareholders to make adjustments, recapitalization,
reorganizations or other
8
<PAGE>
changes in the Company's capital structure or its business; any issue
of bonds, debentures, preferred or prior preference stocks affecting
the Common Stock or the rights thereof; the dissolution or liquidation
of the Company, or sale or transfer of any part of its assets or
business; or any other corporate act, whether of a similar character or
otherwise. As a condition of grant, exercise or lapse of restrictions
on any Option, the Company may, in its sole discretion, withhold or
require the Grantee to pay or reimburse the Company for any taxes which
the Company determines are required to be withheld (including, without
limitation, any required FICA or AMT payments), in connection with the
grant of or any exercise of an Option. Whenever payment or withholding
of such taxes is required, the Grantee may satisfy the obligation, in
whole or in part, by electing to deliver to the Company shares of
Common Stock already owned by the Grantee or electing to have the
Company withhold shares of Common Stock which would otherwise be
delivered to the Grantee, in each case having a value equal to the
amount required to be withheld., and provided that such shares may be
surrendered only at the minimum statutory rate. For these purposes, the
value of the shares to be withheld is the Fair Market Value on the date
that the amount of tax to be withheld is to be determined (the "Tax
Date").
(b) An election by a Grantee to deliver shares of Common Stock already
owned by the Grantee or to have shares withheld for purposes of
subsection (a) of this section (an "Election") must meet the following
requirements in order to be effective:
(1) the Election must be made prior to the Tax Date;
(2) the Election is irrevocable;
(3) the Election may be disapproved by the Committee in its sole
discretion.
3.6 Choice of Law
The validity, interpretation and administration of the Plan, the Option
Agreement, and of any rules, regulations, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively in
accordance with the laws of the State of Alabama, except as the Delaware
General Corporation Law may apply to corporate law requirements imposed on
the Plan.
Without limiting the generality of the foregoing, the period within which
any action in connection with the Plan must be commenced shall be governed
by the Laws of the State of Alabama, without regard to the place where the
act or omission complained of took place, the residence of any party to
such action or the place where the action may be brought or maintained.
9
<PAGE>
3.7 Amendment, Suspension and Termination or Plan
(a) The Plan may be terminated, suspended or amended, from time to time, by
the Board of Directors in such respects as it shall deem advisable;
provided, however, that (i) any such amendment that would require
shareholder approval in order to ensure compliance with Rule 16b-3
under the Securities Exchange Act of 1934, or any successor rule
thereto, or any other applicable rules or regulations, shall be subject
to approval by the shareholders of the Company and (ii) any amendment
that would change the maximum aggregate number of shares for which
Options may be granted under the Plan (except as required under any
adjustments pursuant to Sections 1.3 and 3.1 hereof) shall be subject
to approval of the shareholders of the Company.
(b) Notwithstanding any other provision herein contained, no Incentive
Stock Options shall be granted on or after the tenth anniversary of the
approval of the Plan by the Board of Directors and the Plan shall
terminate and all Options previously granted shall terminate, in the
event and on the date of liquidation or dissolution of the Company.
(c) Whether before or after termination of the Plan, the Board of Directors
has full authority in accordance with Section 3.7(a) to amend the Plan,
effective for Options which remain outstanding under the Plan.
3.8 Loans
The Company may at any time, consistent with applicable regulations,
including Regulation 0 of the Federal Reserve Board and any Company policy
restricting or prohibiting loans to executive officers, lend to a Grantee
any funds required in connection with any aspect of the Plan, including
without limitation the exercise price and any taxes that must be paid or
withheld.
10
<PAGE>
Exhibit 5
June 25, 1999
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 1999 Stock Option Plan (the "Plan").
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 Plan. In this connection we
have reviewed the Plan 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 Plan, 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>
June 25, 1999
Page 2
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 OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report, dated February 3, 1999, included in the
Annual Report on Form 10KSB of Eufaula Bancorp, Inc. and subsidiaries for the
year ended December 31, 1998. We also consent to the reference to our Firm
under the caption "Experts" in the aforementioned Registration Statement.
/s/ Mauldin & Jenkins, LLC
--------------------------
Mauldin & Jenkins, LLC
Albany, Georgia
June 25, 1999
