<PAGE> 1
Registration No. 333-14883
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D. C. 20549
---------------------------------
POST-EFFECTIVE AMENDMENT NO. 2
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
THE COLONIAL BANCGROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 63-0661573
(State of Incorporation) (I.R.S. Employer Identification No.)
ONE COMMERCE STREET, SUITE 800
MONTGOMERY, ALABAMA 36104
(Address of principal executive offices)
(334) 240-5000
(Telephone No.)
---------------------------------
TOMOKA BANCORP, INC.
KEY EMPLOYEE STOCK OPTION PLAN
AND 1994 DIRECTORS' STOCK OPTION PLAN
(FULL TITLE OF PLAN)
Copies to:
W. Flake Oakley, IV Michael D. Waters, Esquire
Chief Financial Officer, Treasurer Miller, Hamilton, Snider & Odom
and Secretary One Commerce Street, Suite 802
Post Office Box 1108 Montgomery, Alabama 36104
Montgomery, Alabama 36102
(Name and address of agent for service)
<PAGE> 2
The Colonial BancGroup, Inc. ("BancGroup") registered 632,209 shares of
its Common Stock on Form S-4, registration no. 333-14883, pursuant to the
acquisition by merger of Tomoka Bancorp, Inc., ("Tomoka"), a Florida
corporation, including shares of BancGroup Common Stock to be issued pursuant to
the exercise of employee stock options under Tomoka's stock option plans (the
"Tomoka Options") following the merger. A total of 330,996 shares were issued in
the merger on January 3, 1997 and 66,915 shares will be issued upon the exercise
of Tomoka Options following the merger.
BancGroup has assumed the Tomoka Options and this Post Effective Amendment
No. 2 on Form S-8 to the Form S-4 relates to the issuance of BancGroup Common
Stock upon the exercise of Tomoka Options assumed by BancGroup.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this registration
statement. All documents subsequently filed by the registrant pursuant to
sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities 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:
(a) The registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act that contains audited financial
statements for the registrant's latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
registrant's annual report referred to in (a) above.
(c) The description of the registrant's Common Stock contained in
the registrant's registration statement on Form 8-A dated November
22, 1994, effective February 22, 1995.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Certain legal issues respecting the shares of Common Stock of the
registrant to be issued are being passed upon by the law firm of Miller,
Hamilton, Snider & Odom, L.L.C., Post Office Box 46, Mobile, Alabama 36601. John
C. H. Miller, Jr., a member of such firm, is a director of the registrant. Mr.
Miller's firm performs legal services for the registrant. Mr. Miller currently
owns 10,158 shares of registrant's Common stock and may acquire 10,000 shares
pursuant to stock options. Other attorneys in such firm own shares of BancGroup
Common Stock, but such shares are immaterial in amount.
ITEM 6. Indemnification of Directors and Officers.
Pursuant to Section 145 of the Delaware General Corporation Law, officers,
directors, employees and agents of the registrant are entitled to
indemnification against
3
<PAGE> 4
liabilities incurred while acting in such capacities on behalf of the
registrant, including reimbursement of certain expenses. In addition, the
registrant maintains an officer's and director's insurance policy and separate
indemnification agreements (the "Indemnification Agreements") pursuant to which
officers and directors of the registrant would be entitled to indemnification
against certain liabilities, including reimbursement of certain expenses.
The Indemnification Agreements are intended to provide additional
indemnification to directors and officers of BancGroup beyond the specific
provisions of the Delaware General Corporation Law. Under the Delaware General
Corporation Law, a company may indemnify its directors and officers in
circumstances other than those under which indemnification and the advance of
expenses are expressly permitted by applicable statutory provisions.
Under the Delaware General Corporation Law, a director, officer, employee
or agent of a corporation (i) must be indemnified by the corporation for all
expenses incurred by him (including attorneys' fees) when he is successful on
the merits or otherwise in defense of any action, suit or proceeding brought by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, (ii) may be indemnified by the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement of
any such proceeding (other than a proceeding by or in the right of the
corporation) even if he is not successful on the merits if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interest of the corporation (and, in the case of a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful), and (iii) may be
indemnified by the corporation for expenses (including attorneys' fees) incurred
by him in the defense or settlement of a proceeding brought by or in the right
of the corporation, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation;
provided that no indemnification may be made under the circumstances described
in clause (iii) if the director, officer, employee or agent is adjudged liable
to the corporation, unless a court determines that, despite the adjudication of
liability but in view of all of the circumstances, he is fairly and reasonably
entitled to indemnification for the expenses which the court shall deem proper.
The indemnification described in clauses (ii) and (iii) above (unless ordered by
a court) may be made only as authorized in a specific case upon determination by
(i) a majority of a quorum of disinterested directors, (ii) independent legal
counsel in a written opinion, or (iii) the stock holders, that indemnification
is proper in the circumstances because the applicable standard of conduct has
been met. Expenses (including attorneys' fees) incurred by an officer or
director in defending a proceeding may be advanced by the corporation prior to
the final disposition of the proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay the advance if it is ultimately
determined that he is not entitled to be indemnified by the corporation.
Expenses (including attorneys' fees) incurred by other employees and agents may
be advanced by the corporation upon terms and conditions deemed appropriate by
the board of directors.
The indemnification provided by the Delaware General Corporation Law has
at least
4
<PAGE> 5
two limitations that are addressed by the Indemnification Agreements: (i)
BancGroup is under no obligation to advance expenses to a director or officer,
and (ii) except in the case of a proceeding in which a director or officer is
successful on the merits or otherwise, indemnification of a director or officer
is discretionary rather than mandatory.
The Indemnification Agreements, therefore, cover any and all expenses
(including attorneys' fees and all other charges paid or payable in connection
therewith) incurred in connection with investigating, defending, being a witness
or participating in (including an appeal), or preparing to defend, be a witness
in or participate in, any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation, whether civil, criminal,
administrative or otherwise, related to the fact that such director or officer
is or was a director, officer, employee or agent of BancGroup or is or was
serving at the request of BancGroup as a director, officer, employee, agent,
partner, committee member or fiduciary of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise, or by reason of
anything done or not done by such director or officer in any such capacity.
The Indemnification Agreements also provide for the prompt advancement of
all expenses incurred in connection with any proceeding and obligate the
director or officer to reimburse BancGroup for all amounts so advanced if it is
subsequently determined, as provided in the Indemnification Agreements, that the
director or officer is not entitled to indemnification.
The Indemnification Agreements further provide that the director or
officer is entitled to indemnification for, and advancement of, all expenses
(including attorneys' fees) incurred in any proceeding seeking to collect from
BancGroup an indemnity claim or advancement of expenses under the
Indemnification Agreements, BancGroup's Certificate of Incorporation, or the
Delaware General Corporation Law, regardless of whether the director or officer
is successful in such proceeding.
The Indemnification Agreements impose upon BancGroup the burden of proving
that the director or officer is not entitled to indemnification in any
particular case, and the Indemnification Agreements negate certain presumptions
which might otherwise be drawn against a director or officer in certain
circumstances. Further, the Indemnification Agreements provide that if BancGroup
pays a director or officer pursuant to an Indemnification Agreement, BancGroup
will be subrogated to such director's or officer's rights to recover from third
parties.
The Indemnification Agreements stipulate that a director's or officer's
rights under such contracts are not exclusive of any other indemnity rights a
director or officer may have; however, the Indemnification Agreements prevent
double payment. The Indemnification Agreements require the maintenance of
directors' and officers' liability insurance if such insurance can be maintained
on terms, including rates, satisfactory to BancGroup.
5
<PAGE> 6
The benefits of the Indemnification Agreements would not be available if
(i) the action with respect to which indemnification is sought was initiated or
brought voluntarily by the officer or director (other than an action to enforce
the right to indemnification under the Indemnification Agreements); (ii) the
officer or director is paid for such expense or liability under an insurance
policy; (iii) the proceeding is for an accounting of profits pursuant to Section
16(b) of the Securities Exchange Act of 1934, as amended; (iv) the conduct of
the officer or director is adjudged as constituting an unlawful personal
benefit, or active or deliberate dishonesty or willful fraud or illegality; or
(v) a court determines that indemnification or advancement of expenses is
unlawful under the circumstances.
The Indemnification Agreements would provide indemnification for
liabilities arising under the Securities Act of 1933, as amended. BancGroup has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such act and is,
therefore, unenforceable.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4 Tomoka Bancorp, Inc. Key Employee
Stock Option Plan and 1994 Directors'
Stock Option Plan included at Exhibit
2(B) to the Registrant's Registration
Statement on Form S-4, registration no.
333-14883, and incorporated herein by
reference.
5 Opinion of Messrs. Miller, Hamilton,
Snider & Odom, L.L.C.
23.1 Consent of Messrs. Miller,
Hamilton, Snider & Odom, L.L.C.
23.2 Consent of independent accountants,
Coopers & Lybrand L.L.P.
24 Power of Attorney, filed as Exhibit 24 to
the registrant's Registration Statement on
Form S-4, Registration no. 333-20291, and
incorporated herein by reference.
</TABLE>
6
<PAGE> 7
ITEM 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers of 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or in the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs, (a)(1)(i) and (a)(1)(ii) do not apply
if the 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 of 1933, each such post-effective amendment shall be deemed to be
a new registration 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 undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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 of 1933 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
7
<PAGE> 8
the opinion of the Securities and Exchange commission such indemnification is
against public policy as expressed in the 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 Act and
will be governed by the final adjudication of such issue.
8
<PAGE> 9
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 Montgomery, Alabama, on the 27th day of February,
1997.
THE COLONIAL BANCGROUP, INC.
BY: /s/ Robert E. Lowder
-----------------------------------
Its Chairman of the Board
of Directors, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
/s/ Robert E. Lowder Chairman of the Board **
- --------------------------- of Directors, President
Robert E. Lowder and Chief Executive
Officer
/s/ W. Flake Oakley, IV Chief Financial **
- --------------------------- Officer, Secretary
W. Flake Oakley, IV and Treasurer (Principal
Financial Officer and
Principal Accounting
Officer)
</TABLE>
9
<PAGE> 10
<TABLE>
<S> <C> <C>
* Director **
- --------------------------
Young J. Boozer
* Director **
- --------------------------
William Britton
* Director **
- --------------------------
Jerry J. Chesser
* Director **
- --------------------------
Augustus K. Clements, III
* Director **
- --------------------------
Robert C. Craft
* Director **
- --------------------------
Patrick F. Dye
* Director **
- --------------------------
Clinton O. Holdbrooks
* Director **
- --------------------------
D. B. Jones
* Director **
- --------------------------
Harold D. King
</TABLE>
10
<PAGE> 11
<TABLE>
<S> <C> <C>
* Director **
- --------------------------
John Ed Mathison
* Director **
- --------------------------
Milton E. McGregor
* Director **
- --------------------------
John C. H. Miller, Jr.
* Director **
- --------------------------
Joe D. Mussafer
* Director **
- --------------------------
William E. Powell
* Director **
- --------------------------
Donald J. Prewitt
* Director **
- --------------------------
Jack H. Rainer
* Director **
- --------------------------
Frances E. Roper
* Director **
- --------------------------
Ed V. Welch
</TABLE>
11
<PAGE> 12
* The undersigned, acting pursuant to a power of attorney, has signed
this Registration Statement on Form S-4 for and on behalf of the
persons indicated above as such persons' true and lawful
attorney-in-fact and in their names, places and stead, in the
capacities indicated above and on the date indicated below.
/s/ W. Flake Oakley, IV
- --------------------------
W. Flake Oakley, IV
Attorney-in-Fact
** Dated: February 27, 1997
12
<PAGE> 13
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
Registration Statement
Under
The Securities Act of 1933
THE COLONIAL BANCGROUP, INC.
(Exact name of registrant as specified in its charter)
13
<PAGE> 14
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4 Tomoka Bancorp, Inc. Key Employee
Stock Option Plan and 1994 Directors'
Stock Option Plan included at Exhibit
2(B) to the Registrant's Registration
Statement on Form S-4, registration no.
333-14883, and incorporated herein by
reference.
5 Opinion of Messrs. Miller, Hamilton,
Snider & Odom, L.L.C.
23.1 Consent of Messrs. Miller,
Hamilton, Snider & Odom, L.L.C.
23.2 Consent of independent accountants,
Coopers & Lybrand L.L.P.
24 Power of Attorney, filed as Exhibit 24
to the registrant's Registration
Statement on Form S-4, Registration no.
333-20291, and incorporated herein by
reference.
</TABLE>
14
<PAGE> 1
Exhibit 5
Opinion of Counsel
<PAGE> 2
February 27, 1997
Montgomery Office
The Colonial BancGroup, Inc.
Post Office Box 1108
Montgomery, Alabama 36101
RE: Post-Effective Amendment No. 1 on Form S-8 to Form S-4
Registration Statement relating to the issuance of shares of
Common Stock of The Colonial BancGroup, Inc., in connection
with stock option plans (the "Plan") of Tomoka Bancorp, Inc.
assumed by Merger.
Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by The
Colonial BancGroup, Inc., a Delaware corporation (the "Company"), in connection
with the proposed issuance by the Company of up to 66,915 shares of its Common
Stock, par value of $2.50 per share, in connection with the Plan, as defined
above. On January 3, 1997, Tomoka Bancorp, Inc. ("Tomoka") was merged with the
Company, and the Company assumed Tomoka's obligations respecting 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, as amended, of the Post-Effective Amendment No. 2 on Form S-8 to Form
S-4 Registration Statement referred to in the caption above. In this connection
we have reviewed such documents and matters of law as we have deemed relevant
and necessary as a basis for the opinions expressed herein.
16
<PAGE> 3
The Colonial BancGroup, Inc.
February 27, 1997
Page 2
In all such examinations, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to the original documents of documents submitted to us as
certified or photostatic copies. We have relied on certificates issued to us by
the secretaries of state and other appropriate government officials of the
various states in which the Company is incorporated or qualified and, except as
expressly set forth in any such documents or hereinafter, we have assumed the
authority of the person or persons who have executed any such documents on
behalf of any person or persons, state or any other entity.
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 pursuant to the Plan, will be duly and validly authorized
and issued and will be fully paid and nonassessable 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.
We give no opinion as to the laws of any jurisdiction other than the
general corporation law of the State of Delaware and the laws of the United
States and the State of Alabama. We are licensed to practice law only in the
State of Alabama.
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,
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
BY:/s/ Michael D. Waters
--------------------------------------
Michael D. Waters
MDW/mfm
17
<PAGE> 1
Exhibit 23.1
Consent of Counsel
18
<PAGE> 2
Miller, Hamilton, Snider & Odom, L.L.C., consents to the use of its name
in the Prospectus, which is a part of the Registration Statement on Form S-8,
under the heading "LEGAL OPINIONS," and to the inclusion of its opinion as an
exhibit to the registration statement.
MILLER, HAMILTON, SNIDER & ODOM, L.L.C.
BY: /s/ Michael D. Waters
--------------------------------------
Michael D. Waters
DATED: February 27, 1997
19
<PAGE> 1
Exhibit 23.2
Consent of Independent Public Accountants
20
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 11, 1997, on our audits of the
consolidated financial statements of The Colonial BancGroup, Inc. as of December
31, 1995 and 1994, and for each of the three years in the period ended December
31, 1995, and our report dated February 11, 1997 on our audits of the
supplemental consolidated financial statements of The Colonial BancGroup, Inc.
as of December 31, 1995 and 1994 and for each of the three years in the period
ended December 31, 1995, which reports are included in The Colonial BancGroup,
Inc.'s Annual Report on Form 8-K for the year ended December 31, 1995.
/s/ Coopers & Lybrand L.L.P.
Birmingham, Alabama
February 27, 1997
