As filed with the Securities and Exchange Commission on October 18, 2001
Registration No. 333-39283
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 (334) 240-5000
Montgomery, Alabama 36104 (Telephone No.)
(Address of principal executive offices)
_________________________________
South Florida Banking Corp.
Incentive Stock Option Plan
(Full title of plan)
Copies to:
William A. McCrary Willard H. Henson, Esquire
Vice President and Legal Counsel Miller, Hamilton, Snider & Odom
Post Office Box 1108 One Commerce Street, Suite 305
Montgomery, Alabama 36101-1108 Montgomery, Alabama 36104
(Name and address of agent for service)
The Colonial BancGroup, Inc. ("BancGroup") registered 2,481,395 shares of
its Common Stock on Form S-4, registration no. 333-39283, in connection with the
acquisition of South Florida Banking Corp. ("South Florida"), a Florida
corporation, including shares of BancGroup Common Stock to be issued pursuant to
the exercise of options of South Florida following the merger. Such registration
was declared effective on December 29, 1997.
A total of 1,932,229 shares were issued in the merger on February 12, 1998,
and 36,858 shares were reserved for issuance upon the exercise of South Florida
options. Subsequent to the merger, BancGroup issued a 2 for 1 stock split,
effected in the form of a 100% stock dividend (the "Stock Split"). In accordance
with SEC Rule 416(b), the registration statement is deemed to cover the
additional shares resulting from the Stock Split. Accordingly, the Form S-4,
registration no. 333-39283, is deemed to register a total of 4,962,790 shares of
BancGroup common stock. Giving effect to the Stock Split, a total of 3,928,726
shares would be deemed to have been issued in the merger and pursuant to the
exercise of stock options after the merger, and 9,448 shares remain available
for issuance pursuant to South Florida options.
BancGroup filed a post effective amendment to the Registration Statement on
Form S-4 on March 16, 2001. The post effective amendment deregistered 1,024,616
shares.
BancGroup has assumed the South Florida 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 South Florida options assumed by BancGroup.
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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 has beneficial ownership of 83,810 shares of registrant's Common
stock. 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 liabilities incurred
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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 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
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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.
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
5
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.
--------
Exhibit No. Description
----------- -----------
4 South Florida Banking Corp. Incentive
Option Plan and Non-Qualified Stock Option
Plan for Directors (Non-Employees) included
at Exhibit 2.2 to the Registrant's
Registration Statement on Form S-4,
registration no. 333-39283, and incorporated
herein by reference.
5 Opinion of Miller, Hamilton, Snider & Odom,
L.L.C. as to certain Delaware law issues of
the securities being registered, filed as
Exhibit 5 to the registrant's Registration
Statement on Form S-4, Registration No.
33-39283, and incorporated herein by
reference.
23.1 Consent of Messrs. Miller,
Hamilton, Snider & Odom, L.L.C.
23.2 Consent of independent accountants,
PricewaterhouseCoopers LLP
24 Power of Attorney, filed as Exhibit 24 to
the registrant's Registration Statement on
Form S-4, Registration no. 333-39283, and
incorporated herein by reference.
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:
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(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 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
----------
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 Post-Effective
Amendment No. 2 on Form S-8 to this Registration Statement on Form S-4 to be
signed on its behalf by the undersigned, thereunto duly authorized in the City
of Montgomery, Alabama, on the 16th day of October, 2001.
THE COLONIAL BANCGROUP, INC.
BY: /s/ Robert E. Lowder
-----------------------
Its Chairman of the Board
of Directors, President and
Chief Executive Officer
BY: /s/ W. Flake Oakley, IV
--------------------------
Its Chief Financial Officer (Principal
Financial Officer and Principal Accounting
Officer) and Executive Vice President
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.
SIGNATURES TITLE DATE
---------- ----- ----
/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)
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* Director **
____________________________
Lewis E. Beville
* 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 **
____________________________
Harold D. King
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* Director **
____________________________
John Ed Mathison
* Director **
____________________________
Milton E. McGregor
* Director **
____________________________
John C. H. Miller, Jr.
* Director **
____________________________
Joe D. Mussafer
* Director **
____________________________
William E. Powell, III
* Director **
____________________________
James W. Rane
* Director **
____________________________
Frances E. Roper
* Director **
____________________________
Simuel Sippial
* Director **
____________________________
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Edward V. Welch
* The undersigned, acting pursuant to a power of attorney, has signed this
Post-Effective Amendment No. 2 on Form S-8 to 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: October 16, 2001
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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)
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4 South Florida Banking Corp. Incentive
Option Plan and Non-Qualified Stock Option
for Directors (Non-Employees) included at
Exhibit 2.2 to the Registrant's Registration
Statement on Form S-4, registration no. 333-
39283, and incorporated herein by reference.
5 Opinion of Miller, Hamilton, Snider & Odom,
L.L.C. as to certain Delaware law issues of
the securities being registered, filed as
Exhibit 5 to the registrant's Registration
Statement on Form S-4, Registration No. 33-
39283, and incorporated herein by reference.
23.1 Consent of Messrs. Miller,
Hamilton, Snider & Odom, L.L.C.
23.2 Consent of independent accountants,
PricewaterhouseCoopers LLP
24 Power of Attorney, filed as Exhibit 24 to
the registrant's Registration Statement on
Form S-4, Registration no. 333-39283, and
incorporated herein by reference.
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