As filed with the Securities and Exchange Commission on July 12, 2001
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
Form S-8
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 (334) 240-5000
(Address of principal executive offices) (Telephone No.)
The Colonial BancGroup, Inc.
2001 Long-Term Incentive Plan
(Full title of plan)
Copies to:
William A. McCrary Willard H. Henson
Vice President and Miller, Hamilton, Snider & Odom, L.L.C.
Legal Counsel One Commerce Street, Suite 305
Post Office Box 1108 Montgomery, Alabama 36104
Montgomery, Alabama 36101
(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Securities to be Amount to be Registered Prop. Max. Offering Prop. Max. Amount of Fee
Registered Price Per Unit (1) Aggregate Offering
Price (1)
-----------------------------------------------------------------------------------------------------------------------------------
Common Stock, 10,000,000 $14.14 $141,400,000 $35,350
par value $2.50 per
share
====================================================================================================================================
(1) Pursuant to Rule 457 under the Securities Act of 1933, as amended, the
proposed maximum offering price per share and the proposed maximum aggregate
offering price are estimated solely for purposes of calculating the registration
fee and are based upon the average of the high and low prices of the Common
Stock of the registrant on the New York Stock Exchange on July 11, 2001.
EXPLANATORY NOTE
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in The Colonial BancGroup, Inc.'s
("BancGroup") 2001 Long-Term Incentive Plan (the "Plan") as specified by Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"). Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
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. 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 in any
subsequently filed document which also is or 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.
(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, i.e., the Annual Report on Form 10-K for
the fiscal year ending December 31, 2000; and
(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 documents referred to in (a) above, i.e., the Current
Reports on Form 8-K dated January 17, 2001, and April 18, 2001, and the
Quarterly Report on Form 10-Q for the quarter ending March 31, 2001;
and
(c) The registrant's registration statement on Form 8-A dated November
22, 1994, effective February 22, 1995, containing a description of the
BancGroup Common Stock.
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 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
2
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 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
3
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 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
4.1 The Colonial BancGroup, Inc. 2001 Long-
Term Incentive Plan
5.1 Opinion of Miller, Hamilton, Snider &
Odom, L.L.C. as to certain issues
regarding the securities being
registered.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Miller, Hamilton, Snider &
Odom, L.L.C.
24 Power of attorney.
4
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 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
5
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.
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 12th day of July, 2001.
THE COLONIAL BANCGROUP, INC.
BY: /s/ Robert E. Lowder
--------------------------------------
Its Chairman of the Board of Directors
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.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Robert E. Lowder Chairman of the Board **
-----------------------------
Robert E. Lowder of Directors, and Chief
Executive Officer
/s/ W. Flake Oakley, IV Chief Financial Officer, **
-----------------------------
W. Flake Oakley, IV Executive Vice President and
Secretary (Principal Financial
Officer and Principal Accounting
Officer)
* Director **
-----------------------------
Lewis E. Beville
* Director **
-----------------------------
William Britton
* Director **
-----------------------------
Jerry J. Chesser
6
* Director **
-----------------------------
Augustus K. Clements, III
Director
Robert S. Craft
* Director **
-----------------------------
Patrick F. Dye
* Director **
-----------------------------
Clinton O. Holdbrooks
* Director **
-----------------------------
Harold D. King
* 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
7
* Director **
-----------------------------
Simuel Sippial, Jr.
* Director **
-----------------------------
Edward V. Welch
* The undersigned, acting pursuant to a power of attorney, has signed this
registration statement on form S-8 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
**Date: July 12, 2001.
8
EXHIBIT INDEX
EXHIBIT
-------
Exhibit No. Description
4.1 The Colonial BancGroup, Inc. 2001
Long-Term Incentive Plan
5.1 Opinion of Miller, Hamilton, Snider
& Odom, L.L.C. as to certain issues
regarding the securities being
registered.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Miller, Hamilton, Snider &
Odom, L.L.C.
24 Power of attorney.