As filed with the Securities and Exchange Commission on March 17, 2005
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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THE BANC CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 63-1201350
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
17 NORTH TWENTIETH STREET
BIRMINGHAM, ALABAMA 35203
(Address of Principal Executive Offices)
(Zip Code)
STOCK OPTIONS GRANTED UNDER EMPLOYMENT AGREEMENTS WITH
C. STANLEY BAILEY, C. MARVIN SCOTT AND RICK D. GARDNER
(Full Title of the Plans)
C. STANLEY BAILEY
CHIEF EXECUTIVE OFFICER
THE BANC CORPORATION
17 NORTH TWENTIETH STREET
BIRMINGHAM, ALABAMA 35203
(Name and Address of Agent for Service)
(205) 326-2265
(Telephone Number, including Area Code, of Agent for Service)
The Commission is requested to send copies of all notices and
other communications to:
F. HAMPTON McFADDEN, JR., ESQ.
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
THE BANC CORPORATION
17 NORTH TWENTIETH STREET
BIRMINGHAM, ALABAMA 35203
TEL: (205) 326-2265
FAX: (205) 327-3479
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share(1) Price (1) Registration Fee (1)
------------------- ---------------- ---------------- ------------------ --------------------
Common Stock, par value $.001
per share 1,423,940 shares $8.17 $ 11,633,589.80 $ 1,369.27
================ ===== ================== ====================
(1) All stock options covering the stock that is the subject of this
Registration Statement on Form S-8 have an exercise price of $8.17 per
share, representing the fair market value of the shares of stock on the
date the options were granted.
INTRODUCTORY NOTE
This Registration Statement on Form S-8 is filed to register
shares of Common Stock, par value $.001 per share, of The Banc Corporation, a
Delaware corporation (the "Company"), underlying employee stock options issued
to C. Stanley Bailey, C. Marvin Scott and Rick D. Gardner pursuant to their
Employment Agreements with the Company. Each of such Employment Agreements
constitutes an "employee benefit plan", as such term is defined in Rule 405 of
Regulation C.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to specified officers and employees pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). The
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II below, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Banc Corporation, a Delaware corporation (the "Company"), incorporates
by reference into this Registration Statement on Form S-8 (the "Registration
Statement") the following documents which have previously been filed by the
Company with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2004.
(b) The Company's Current Report on Form 8-K dated as of January 24,
2005.
(c) The description of securities to be registered contained in the
Registration Statement filed with the Commission on Form 8-A under
the Securities Exchange Act of 1934 ( the "Exchange Act") and
declared effective on November 4, 1998, including any amendment or
reports filed for the purpose of updating such description.
(d) 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 have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the
date of filing of such documents.
Any statements contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
which is also incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the validity of the shares of
Company Common Stock offered hereby will be passed upon for the Company by
Haskell Slaughter Young & Rediker, LLC, Birmingham, Alabama. Attorneys with
Haskell Slaughter Young & Rediker, LLC beneficially own 21,100 shares of
Company's Common Stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporate Law ("DGCL") permits a
Delaware corporation in its certificate of incorporation to limit or eliminate,
subject to certain statutory limitations, the personal liability of their
directors in certain circumstances. The Company's Restated Certificate of
Incorporation (the "Certificate") contains a provision eliminating or limiting
director liability to the Company and its stockholders for monetary damages
arising from acts or omissions in the director's capacity as a director. The
provision does not, however, eliminate or limit the personal liability of a
director (i) for any breach of such director's fiduciary duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL making directors personally liable, under a negligence
standard, for unlawful dividends or unlawful stock purchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. This provision offers persons who serve on the Board of Directors of
the Company protection against awards of monetary damages resulting from
breaches of their duty of care (except as indicated above). As a result of this
provision, the ability of the Company or a stockholder thereof to successfully
prosecute an action against a director for a breach of his duty of care is
limited. However, this provision does not affect the availability of equitable
remedies such as an injunction or rescission based upon a director's breach of
his duty of care. The SEC has taken the position that the provision will have no
effect on claims arising under the federal securities laws.
Section 145 of the DGCL grants corporations the right to indemnify their
directors, officers, employees and agents in accordance with its provisions.
Section 9.2 of the Company's Certificate provides for mandatory indemnification
rights, subject to limited exceptions, to any director, officer, employee, or
agent of the Company who, by reason of the fact that he or she is a director,
officer, employee, or agent of the Company, is involved in a legal proceeding of
any nature. Such indemnification rights include reimbursement for expenses
incurred by such director, officer, employee, or agent in advance of the final
disposition of such proceeding in accordance with the applicable provisions of
the DGCL.
The Company has entered into agreements with some of its directors and
executive officers pursuant to which the Company has agreed to indemnify such
directors and executive officers against liability incurred by them by reason of
their services as a director or officer to the fullest extent allowable under
applicable law. In addition, the Company has purchased insurance containing
customary terms and conditions as permitted by Delaware law on behalf of its
directors and executive officers, which may cover liabilities under the
Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Description of Exhibit
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(4)-1 The Banc Corporation Restated Certificate of Incorporation, filed as
Exhibit (3)-1 to the Company's Registration Statement on Form S-4
(Registration No. 333-58493), is hereby incorporated herein by
reference.
(4)-2 Employment Agreement, dated January 24, 2005, by and between The
Banc Corporation,
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The Bank and C. Stanley Bailey, filed as Exhibit 10-5 to The Banc
Corporation's Current Report on Form 8-K dated January 24, 2005, is
hereby incorporated herein by reference.
(4)-3 Employment Agreement, dated January 24, 2005, by and between The
Banc Corporation, The Bank and C. Marvin Scott, filed as Exhibit
10-6 to The Banc Corporation's Current Report on Form 8-K dated
January 24, 2005, is hereby incorporated herein by reference.
(4)-4 Employment Agreement, dated January 24, 2005, by and between The
Banc Corporation, The Bank and Rick D. Gardner, filed as Exhibit
10-7 to The Banc Corporation's Current Report on Form 8-K dated
January 24, 2005, is hereby incorporated herein by reference.
(5) Opinion of Haskell Slaughter Young & Rediker, LLC as to the legality
of The Banc Corporation Common Stock being registered.
(23)-1 Consent of Carr, Riggs & Ingram, LLC.
(23)-2 Consent of Ernst & Young LLP.
(23)-5 Consent of Haskell Slaughter Young & Rediker, LLC (included in
Exhibit 5).
24 Powers of Attorney (set forth on the signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this 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;
(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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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.
(c) 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 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 payment by the Registrant of expenses
incurred or paid by a
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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 Securities 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Birmingham, State of Alabama, on March 17, 2005.
THE BANC CORPORATION
By /s/ C. STANLEY BAILEY
-----------------------------------
C. Stanley Bailey
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints C. Stanley Bailey and David R. Carter, and each
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any subsequent
registration statements relating to the offering to which this Registration
Statement relates, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or either of them, or their or his
substitutes or substitute, 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 and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ C. Stanley Bailey Chief Executive Officer
----------------------------- (Principal Executive Officer) March 17, 2005
C. Stanley Bailey
Executive Vice President,
/s/ David R. Carter Chief Financial Officer and Director
----------------------------- (Principal Financial and
David R. Carter Accounting Officer) March 17, 2005
/s/ James A. Taylor Chairman of the Board March 17, 2005
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James A. Taylor
/s/ James Mailon Kent, Jr. Vice Chairman March 17, 2005
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James Mailon Kent, Jr.
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/s/ Larry D. Striplin, Jr. Vice Chairman March 17, 2005
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Larry D. Striplin, Jr.
/s/ K. Earl Durden Vice Chairman March 17, 2005
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K. Earl Durden
/s/ James R. Andrews, M.D. Director March 17, 2005
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James R. Andrews, M.D.
/s/ Roger Barker Director March 17, 2005
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Roger Barker
/s/ W. T. Campbell, Jr. Director March 17, 2005
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W. T. Campbell, Jr.
/s/ Thomas E. Jernigan, Jr. Director March 17, 2005
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Thomas E. Jernigan, Jr.
/s/ Randall E. Jones Director March 17, 2005
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Randall E. Jones
/s/ Ronald W. Orso, M.D. Director March 17, 2005
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Ronald W. Orso, M.D.
/s/ Harold W. Ripps Director March 17, 2005
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Harold W. Ripps
/s/ Jerry M. Smith Director March 17, 2005
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Jerry M. Smith
/s/ Michael E. Stephens Director March 17, 2005
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Michael E. Stephens
/s/ Marie Swift Director March 17, 2005
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Marie Swift
/s/ James A. Taylor, Jr. Director March 17, 2005
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James A. Taylor, Jr.
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
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(4)-1 The Banc Corporation Restated Certificate of Incorporation, filed
as Exhibit (3)-1 to the Company's Registration Statement on
Form S-4 (Registration No. 333-58493), is hereby incorporated
herein by reference.
(4)-2 Employment Agreement, dated January 24, 2005, by and between The
Banc Corporation, The Bank and C. Stanley Bailey, filed as Exhibit
10-5 to The Banc Corporation's Current Report on Form 8-K dated
January 24, 2005, is hereby incorporated herein by reference.
(4)-3 Employment Agreement, dated January 24, 2005, by and between The
Banc Corporation, The Bank and C. Marvin Scott, filed as Exhibit
10-6 to The Banc Corporation's Current Report on Form 8-K dated
January 24, 2005, is hereby incorporated herein by reference.
(4)-4 Employment Agreement, dated January 24, 2005, by and between The
Banc Corporation, The Bank and Rick D. Gardner, filed as Exhibit
10-7 to The Banc Corporation's Current Report on Form 8-K dated
January 24, 2005, is hereby incorporated herein by reference.
(5) Opinion of Haskell Slaughter Young & Rediker, LLC as to the
legality of The Banc Corporation Common Stock being registered.
(23)-1 Consent of Carr, Riggs & Ingram, LLC.
(23)-2 Consent of Ernst & Young LLP.
(23)-3 Consent of Haskell Slaughter Young & Rediker, LLC (included in
Exhibit 5).
24 Powers of Attorney (set forth on the signature page of this
Registration Statement).
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