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As filed with the Securities and Exchange Commission on January _____, 1999
REGISTRATION NO. 333-_______________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ALABAMA NATIONAL BANCORPORATION
(Exact Name of Issuer as Specified in Its Charter)
DELAWARE 63-1114426
(State of incorporation) (I.R.S. Employer Identification No.)
1927 FIRST AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
(Address of Principal Executive Offices)
COMMUNITY FINANCIAL CORPORATION
1996 STOCK INCENTIVE PLAN
(Full Title of the Plan)
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JOHN H. HOLCOMB, III
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
1927 FIRST AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
(205) 583-3600
(Name and Address of Agent for Service)
With a Copy to:
GREGORY S. CURRAN
MAYNARD, COOPER & GALE, P.C.
1901 SIXTH AVENUE NORTH
SUITE 2400
BIRMINGHAM, ALABAMA 35203
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PART I
EXPLANATORY NOTE
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This Registration Statement is being filed in order to register 56,641
shares of common stock, $1.00 par value per share ("Company Stock"), of Alabama
National Bancorporation (the "Registrant"), which may be sold pursuant to the
terms and conditions of the Community Financial Corporation 1996 Stock Incentive
Plan (the "Plan").
A prospectus meeting the requirements of Part I of Form S-8 and containing
the statement required by Item 2 of Form S-8 has been prepared. Such prospectus
is not included in this Registration Statement but will be delivered to all
participants in the Plan pursuant to Rule 428(b)(1) under the Securities Act of
1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents filed by the Registrant with the with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") are incorporated into this
Registration Statement by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997.
2. All other reports of the Registrant filed pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1997.
3. The description of the Registrant's shares of Common Stock, par value
$1.00 per share (the "Common Stock"), contained in the Registration Statement
filed by the Registrant to register such securities under the Exchange Act,
including all amendments and reports filed for the purpose of updating such
description prior to the termination of the offering of the Common Stock offered
hereby.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all 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 such documents.
Any statement contained herein, or in a document all or a portion of which
is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
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Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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The Certificate of Incorporation, as amended, of the Registrant contains a
provision which, subject to certain exceptions described below, eliminates the
liability of a director to the Registrant or its stockholders for monetary
damages for any breach of duty as a director. This provision does not eliminate
the liability of the director (i) for violations of his duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law (the "DGCL") relating to
unlawful dividends and distributions, or (iv) for any transaction from which the
director derived an improper personal benefit.
The Bylaws of the Registrant require the Registrant to indemnify any person
who was, is or is threatened to be made a named defendant or respondent in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of service by such person
as a director of the Registrant or any other corporation, including the
subsidiary banks of the Registrant, for which he served as such at the request
of the Registrant. Directors are entitled to be indemnified against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by the
director in connection with the proceeding, except that no payments may be made
with respect to liability which is not eliminated pursuant to the provision of
the Registrant's Certificate of Incorporation described in the preceding
paragraph. Directors are also entitled to have the Registrant advance any such
expenses prior to final disposition of the proceeding, upon delivery of a
written affirmation by the director of his good faith belief that the standard
of conduct necessary for indemnification has been met and a written undertaking
to repay the amounts advanced if it is ultimately determined that the standard
of conduct has not been met.
In addition to the Bylaws of the Registrant, Section 145(c) of the DGCL
requires the Registrant to indemnify any director who has been successful on the
merits or otherwise in defending any proceeding described above which has arisen
prior to July 1, 1997. The DGCL also provides that a court may order
indemnification of a director if it determines that the director is fairly and
reasonably entitled to such indemnification.
The Board of Directors of the Registrant also has the authority to extend
to officers, employees and agents the same indemnification rights held by
directors, subject to all of the accompanying conditions and obligations. The
Board of Directors has extended indemnification rights to all of its executive
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not Applicable.
ITEM 8. EXHIBITS.
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The following exhibits are filed herewith or incorporated by reference
herein as part of this Registration Statement:
5 Opinion and Consent of Maynard, Cooper & Gale, P.C.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Maynard, Cooper & Gale, P.C. (included in Exhibit 5
hereto).
24 Power of Attorney of the Officers and Directors of the Registrant.
2
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ITEM 9. UNDERTAKINGS.
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(a) The undersigned Registrant hereby undertakes 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 of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represents a fundamental change in the information set forth in
this Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided however, that such undertakings set forth in
(i) and (ii) above do not apply to the extent the information required to be
included in a post-effective amendment is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
The undersigned Registrant further undertakes, 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 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.
The undersigned Registrant further undertakes 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
(c) The undersigned Registrant hereby undertakes to transmit or cause to be
transmitted to all employees participating in the Plan who do not otherwise
receive such material as stockholders of the Registrant, at the time and in the
manner such material is sent to its stockholders, copies of all reports, proxy
statements and other communications distributed to its stockholders generally.
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 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.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, the
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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 Birmingham, State of Alabama, on January 5, 1999.
ALABAMA NATIONAL BANCORPORATION
By: /s/ John H. Holcomb, III
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John H. Holcomb, III
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ John H. Holcomb, III Chairman, Chief Executive January 5, 1999
- -------------------------- Officer, and Director
John H. Holcomb, III (Principal Executive Officer)
/s/ Victor E. Nichol, Jr. President, Chief Operating January 5, 1999
- -------------------------- Officer, and Director
Victor E. Nichol, Jr.
/s/ William E. Matthews, V Executive Vice President and January 5, 1999
- -------------------------- Chief Financial Officer
William E. Matthews, V (Principal Financial Officer)
/s/ James S. Parks, Jr. Senior Vice President-Finance, January 5, 1999
- -------------------------- Treasurer (Principal Accounting
James S. Parks, Jr. Officer)
* Director January 5, 1999
- --------------------------
W. Ray Barnes
* Vice Chairman and Director January 5, 1999
- --------------------------
Dan M. David
* Director January 5, 1999
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T. Morris Hackney
4
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Signature Title Date
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* Director January 5, 1999
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John D. Johns
* Director January 5, 1999
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John J. McMahon, Jr.
* Director January 5, 1999
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C. Phillip McWane
* Director January 5, 1999
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William D. Montgomery
* Director January 5, 1999
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Drayton Nabors, Jr.
* Director January 5, 1999
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C. Lloyd Nix
* Director January 5, 1999
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G. Ruffner Page, Jr.
* Director January 5, 1999
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William E. Sexton
* Director January 5, 1999
- --------------------------
W. Stancil Starnes
*By /s/ John H. Holcomb, III Attorney-in-Fact January 5, 1999
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John H. Holcomb, III
5
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INDEX TO EXHIBITS
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Exhibit Description Page
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5 Opinion and Consent of Maynard,
Cooper & Gale, P.C.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Maynard, Cooper & Gale, P.C.
(included in Exhibit 5 hereto).
24 Power of Attorney of the Officers and
Directors of the Registrant.
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EXHIBIT 5
[Letterhead of Maynard, Cooper & Gale]
January 5, 1999
Alabama National BanCorporation
1927 First Avenue North
Birmingham, Alabama 35203
Dear Sirs:
We are counsel to Alabama National BanCorporation, a Delaware corporation
(the "Company") in connection with the registration on Form S-8 under the
Securities Act of 1933 (the "Act") of 56,641 shares (the "Shares") of Common
Stock, par value $1.00 per share, of the Company, to be issued in accordance
with the terms of the Community Financial Corporation 1996 Stock Incentive Plan
(the "Plan"). We have examined such corporate records, certificates and other
documents as we have considered necessary or appropriate for the purposes of
this opinion. In our opinion, when the Registration Statement on Form S-8
relating to the Shares (the "Registration Statement") has become effective under
the Act, and the Shares have been duly issued as contemplated by the
Registration Statement and the Plan, the Shares will be validly issued, fully
paid and nonassessable.
The foregoing opinion is limited to the Federal laws of the United States
and the General Corporation Law of the State of Delaware, and we are expressing
no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
MAYNARD, COOPER & GALE, P.C.
By: /s/ Gregory S. Curran
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GSC/ch
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Community Financial Corporation 1996 Stock Incentive Plan
assumed by Alabama National BanCorporation of our report dated February 29,
1996, with respect to the 1995 consolidated financial statements of Alabama
National BanCorporation (not presented separately in the 1996 Annual Report on
Form 10-K) which report is included in Alabama National BanCorporation's Annual
Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Birmingham, Alabama
January 5, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated January 15, 1998, except for Notes 8 and 19 as to
which the dates are January 19, 1998 and March 5, 1998, respectively, on our
audits of the consolidated financial statements of Alabama National
BanCorporation as of December 31, 1997 and 1996, and for each of the two years
in the period ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
Birmingham, Alabama
January 5, 1999
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POWER OF ATTORNEY
WHEREAS, Alabama National Bancorporation (the "Company") proposes to file
one or more registration statements and amendments thereto under the Securities
Act of 1933 with respect to the issuance of shares of common stock of the
Company, from time to time, under or pursuant to (i) the Company's Performance
Share Plan, (ii) the Deferred Compensation Plan for Directors Who Are Not
Employees of the Company, (iii) the Company's Deferred Compensation Plan for Key
Employees, (iv) the Company's Deferred Compensation Plan for Non-Employee
Directors of the Subsidiary Banks, (v) the Performance Share Plan for Certain
Directors of Citizens & Peoples Bank, N.A., (vi) the First American BanCorp
Stock Option Plan, dated October 20, 1992, (vii) the First American BanCorp 1994
Stock Option Plan, (viii) the Commerce Bankshares, Inc. Long Term Incentive
Plan, (ix) options to purchase shares of common stock of the Company held by
certain executive officers of First American Bank, (x) the First American
BanCorp 401(k) Plan, (xi) the Community Financial Corporation 1994 Stock Option
Plan, (xii) the Community Financial Corporation 1996 Stock Incentive Plan, and
(xiii) the Community Bank of Naples, N.A. 1996 Stock Option Plan.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that the Company and the
undersigned directors and officers of said Company, individually as a director
and/or as an officer of the Company, hereby make, constitute and appoint each of
John H. Holcomb, III and Victor E. Nichol, Jr. their true and lawful attorney-
in-fact for each of them and in each of their names, places and steads to sign
and cause to be filed with the Securities and Exchange Commission said
registration statements and any appropriate amendments thereto, together with
all necessary exhibits.
The Company hereby authorizes said persons or any one of them to execute
said registration statements and amendments thereto on its behalf as attorney-
in-fact for it and its authorized officers, and to file the same as aforesaid.
The undersigned directors and officers of the Company hereby authorize said
persons or any one of them to sign said registration statements on their behalf
as attorney-in-fact and to amend or remedy any deficiencies with respect to said
registration statements by appropriate amendment or amendments and to file the
same as aforesaid.
Dated as of December 17, 1998.
ALABAMA NATIONAL BANCORPORATION
By: /s/ John H. Holcomb, III
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John H. Holcomb, III
Its Chief Executive Officer
Page 1 of 3
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/s/ W. Ray Barnes
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W. Ray Barnes
/s/ Dan M. David
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Dan M. David
/s/ T. Morris Hackney
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T. Morris Hackney
/s/ John H. Holcomb, III
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John H. Holcomb, III
/s/ John D. Johns
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John D. Johns
/s/ William W. Matthews, V
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William E. Matthews, V
/s/ John J. McMahon, Jr.
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John J. McMahon, Jr.
/s/ William D. Montgomery, Sr.
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William D. Montgomery, Sr.
Page 2 of 3
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/s/ C. Phillip McWane
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C. Phillip McWane
/s/ Drayton Nabers, Jr.
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Drayton Nabers, Jr.
/s/ Victor E. Nichol, Jr.
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Victor E. Nichol, Jr.
/s/ C. Lloyd Nix
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C. Lloyd Nix
/s/ G. Ruffner Page, Jr.
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G. Ruffner Page, Jr.
/s/ James S. Parks, Jr.
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James S. Parks, Jr.
/s/ William E. Sexton
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William E. Sexton
/s/ W. Stancil Starnes
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W. Stancil Starnes
Page 3 of 3
