As filed with the Securities and Exchange Commission on November 22, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BOC FINANCIAL CORP.
(Exact Name of Registrant as Specified in its Charter)
NORTH CAROLINA 56- 6511744
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
107 CENTRAL AVENUE, DRAWER 8187
LANDIS, NORTH CAROLINA 28088-8187
(704) 857-7277
(Address, including ZIP Code, and telephone number, including area code, of
registrant's principal executive offices)
BOC Financial Corp. 1999 Incentive Stock Option Plan
BOC Financial Corp. 1999 Nonstatutory Stock Option Plan
(Full title of the plans)
STEPHEN R. TALBERT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BOC FINANCIAL CORP.
107 CENTRAL AVENUE, DRAWER 8187
LANDIS, NORTH CAROLINA 28088-8187
(704) 857-7277
(Name and address of agent for service)
WITH COPIES TO:
--------------
ANTHONY GAETA, JR. , ESQ.
ERIK GERHARD, ESQ.
808 SALEM WOODS DRIVE, SUITE 201
RALEIGH, NORTH CAROLINA 27615
(919) 845-2558
CALCULATION OF REGISTRATION FEE (1)
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Proposed Maximum Proposed
Title of Securities Amount to be Offering Price Maximum Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee (1)
- ---------------------------------------------------------------------------------------------------------------
Common Stock 92,574 $6.625(1) $613,302.75(1) $170.50
$1.00 Par Value
- ---------------------------------------------------------------------------------------------------------------
(1) The shares of Common Stock are being offered to eligible employees and
directors of Registrant and its direct and indirect subsidiaries pursuant
to options granted to them in accordance with the terms of the BOC
Financial Corp. 1999 Incentive Stock Option Plan and the 1999 Nonstatutory
Stock Option Plan (the "Plans") adopted by Registrant. Pursuant to Rule
457(h), the Aggregate Offering Price and the Registration Fee have been
calculated on the basis of the maximum number of shares to be issued under
the Plans and an Offering Price equal to the price at which the shares may
be purchased pursuant to the Plans upon the exercise of the options.
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Explanatory Note
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I (Items 1 and 2) of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the Plans as
required by Rule 428(b) under the Securities Act of 1933 ("Securities Act").
Such documents are not being filed with the Commission as part of this
Registration Statement or prospectuses or prospectus supplements pursuant to
Rule 424.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by Registrant with the Commission under the
Securities Act are incorporated herein by reference:
(i) Registrant's Registration Statement on Form SB-2 filed under the
Securities Act on February 18, 1998 (Registration No. 333-42151);
In addition, all documents subsequently filed with the Commission by
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") after the date hereof prior to the
filing of a post-effective amendment which indicates that all securities being
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated herein by reference and to be a part hereof
from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Registrant is incorporated under the laws of the State of North Carolina.
North Carolina's Business Corporation Act (the "BCA") contains provisions
prescribing the extent to which directors and officers of a corporation shall or
may be indemnified.
The BCA permits a corporation, with certain exceptions, to indemnify a
current or former officer or director against liability if he acted in good
faith and he reasonably believed (i) in the case of conduct in his official
capacity with the corporation, that his conduct was in its best interests, (ii)
in all other cases, that his conduct was at least not opposed to its best
interests, and (iii) with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A corporation may not
indemnify him in connection with a proceeding by or in the right of the
corporation in which he was adjudged liable to the corporation or in connection
with any other proceeding charging improper personal benefit to him, whether or
not involving action in his official capacity, in which he as adjudged liable on
the basis that personal benefit was improperly received by him unless and only
to the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, he is fairly and reasonably entitled
to indemnity for such reasonable expenses incurred which the court shall deem
proper.
The BCA requires a corporation to indemnify an officer or director in the
defense of any proceeding to which he was a party against reasonable expenses to
the extent that he is wholly successful on the merits or otherwise in his
defense. Indemnification under the BCA generally shall be made by the
corporation only upon a determination that indemnification of the director or
officer was proper under the circumstances because he met the applicable
standard of conduct. Such determination may be made by (i) the Board of
Directors by a majority vote of a quorum consisting of directors who are not
parties to such proceeding, (ii) if such a quorum is not obtainable, by majority
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vote of a committee duly designated by the Board of Directors consisting solely
of two or more directors not at the time party to such proceeding; (iii) if such
quorum is not obtainable, or, even if obtainable if a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or (iv)
by the stockholders of the corporation.
The BCA permits a corporation to provide for indemnification of directors
and officers in its Articles of Incorporation or Bylaws or by contract or
otherwise, against liability in various proceedings, and to purchase and
maintain insurance policies on behalf of these individuals. The Articles of
Incorporation of the Registrant provide for the elimination of the personal
liability for monetary damages for certain breaches of fiduciary duty and the
Bylaws of the Registrant provide for the indemnification of directors and
officers to the maximum extent permitted by North Carolina law.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed herewith or incorporated herein by
reference as a part of the Registration Statement.
Exhibit Number Description
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4 Specimen of Registrant's Common Stock certificate (incorporated by reference to
Registration Statement on Form SB-2; Registration No. 333-42151).
5 Opinion of Anthony Gaeta, Jr., P.A. as to the legality of the securities being
registered (filed herewith).
23.1 Consent of Dixon Odom PLLC (filed herewith).
23.2 Consent of Anthony Gaeta, Jr., P.A. (contained in his opinion filed herewith as
Exhibit 5).
24 Power of Attorney (filed herewith).
99 Copy of Registrant's 1999 Incentive Stock Option Plan and 1999 Nonstautory
Stock Option Plan (incorporated herein by reference to Registration Statement
on Form SB-2 filed February 18, 1998, Registration No. 333-42151).
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:
(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
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
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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 Securities Exchange Act of 1934
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 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities and Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Landis, State of North Carolina, on October __, 1999.
BOC FINANCIAL CORP.
By: /s/ Stephen R. Talbert
--------------------------------------
Stephen R. Talbert
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE CAPACITY
- --------- --------
/s/ Stephen R. Talbert President, Chief Executive Officer, and
- --------------------------- Director
Stephen R. Talbert
/s/ Lisa Blalock Ashley* Chief Financial Officer
- ---------------------------
Lisa Blalock Ashley
/s/ John A. Drye* Director
- ---------------------------
John A. Drye
/s/ Henry H. Land* Director
- ---------------------------
Henry H. Land
/s/ Susan Linn Norvell* Director
- ---------------------------
Susan Linn Norvell
/s/ Lynne Scott Safrit* Director
- ---------------------------
Lynne Scott Safrit
* By: /s/ Stephen R. Talbert
---------------------------
Attorney-in-fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4 Specimen of Registrant's Common Stock Incorporated by reference
5 Opinion of Anthony Gaeta, Jr., P.A. as to
the legality of the securities being registered
23.1 Consent of Dixon Odom PLLC
23.2 Consent of Anthony Gaeta, Jr., P.A. Included in Exhibit 5
24 Power of Attorney
99 Copy of BOC Financial Corp. 1999 Incentive Stock Incorporated by reference
Option Plan and 1999 Nonstatutory Stock Option Plan
6