SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
Registration
Statement Under
The Securities Act of
1933
SUPERIOR BANCORP
(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)
SUPERIOR
BANCORP 2010 INCENTIVE COMPENSATION PLAN
(Full
Title of the Plans)
C.
STANLEY BAILEY
Chief
Executive Officer
Superior
Bancorp
17
North Twentieth Street
Birmingham,
Alabama 35203
(Name and
Address of Agent for Service)
(205) 327-1400
(Telephone
Number, including Area Code, of Agent for Service)
The
Commission is requested to send copies of all notices and other communications
to:
William
H. Caughran
General
Counsel and Corporate Secretary
Superior
Bancorp
17
North Twentieth Street
Birmingham,
Alabama 35203
Tel:
(205) 327-3615
Fax:
(205) 488-3335
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer,"
"accelerated filer" and "smaller reporting company" in Rule 12b-2 of the
Exchange Act. (Check one):
Large
accelerated filer
o
Accelerated
filer
o
Non-accelerated
filer
o
Smaller
reporting company
þ
(Do not
check if a smaller reporting company)
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)(2)
|
|
Registration Fee (2)
|
|
Common
Stock, par value $.001 per
share
|
|
1,500,000
shares
|
|
|
N/A
|
|
$4,365,000
|
|
$311.22
|
|
(1)
|
All
shares of stock that are the subject of this Registration Statement on
Form S-8 will be valued at the closing price of such stock on the deemed
dates of issuance, which will coincide with the dates on which Superior
Bancorp’s Board of Directors or committees thereof hold
meetings.
|
(2)
|
Pursuant
to Rule 457(c), the registration fee has been calculated based on the
average of the high and low sale prices for Superior Bancorp’s Common
Stock reported on the NASDAQ Global Market System on May 20, 2010, or
$2.91 per share.
|
PART
I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
This
Registration Statement registers 1,500,000 shares of common stock par value
$.001 per share of Superior Bancorp (the “Company”) that may be issued under the
Superior Bancorp 2010 Incentive Compensation Plan.
Item
1. Plan Information
The
document(s) containing the information specified in Part I of this Form S-8
will be sent or given to participants in the Plan 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.
Item
2. Registrant Information and Employee Plan Annual
Information
Upon
written or oral request, the Company will provide, without charge, the documents
incorporated by reference in Item 3 of Part II of this Registration
Statement. The documents are incorporated by reference in the Section
10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, all other documents required to be delivered to
participants pursuant to Rule 428(b) of the Securities Act. Requests
for the above-mentioned information should be directed to William H. Caughran at
the address and telephone number on the cover of this Registration
Statement.
PART
II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
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, 2009.
|
|
(b)
|
The
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2010.
|
|
(c)
|
The
Company’s Current Reports on Form 8-K dated as of January 15,
2010, February 9, 2010, April 20, 2010, and May 6,
2010.
|
|
(d)
|
The
description of securities to be registered contained in the Registration
Statement (No. 333-82428) filed with the Commission on Form S-1 under the
Securities Act and declared effective on March 19, 2002, including any
amendment or reports filed for the purpose of updating such
description.
|
|
(e)
|
All
documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act (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.
|
Notwithstanding
any other provision of this Item 3, no portion of any document listed above
which is furnished to, but not filed with, the Securities and Exchange
Commission shall be deemed to be incorporated by reference herein unless such
furnished portion is expressly so incorporated. 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
The
validity of the Common Stock issuable by the Company pursuant to the Plan will
be passed upon for the Company by William H. Caughran, the General Counsel of
the Company.
Item 6.
Indemnification of Directors and Officers
Section 102(b)(7)
of the Delaware General Corporation 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.
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
|
|
|
|
(3)
|
|
Restated
Certificate of Incorporation of Superior Bancorp, filed as Exhibit
(3) to the Company’s Current Report on Form 8-K dated November
19, 2009, is hereby incorporated herein by reference.
|
|
|
|
(4)
|
|
Superior
Bancorp 2010 Incentive Compensation Plan, filed as Annex A to the
Company’s definitive Proxy Statement dated March 19, 2010, is incorporated
herein by reference.
|
|
|
|
(5)
|
|
Opinion
of William H. Caughran as to the legality of the Superior Bancorp Common
Stock being registered.
|
|
|
|
(23)-1
|
|
Consent
of Grant Thornton LLP.
|
|
|
|
(23)-2
|
|
Consent
of William H. Caughran (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:
(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. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar volume of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
a prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in 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.
Provided,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(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 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.
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 May 21, 2010.
|
SUPERIOR
BANCORP
|
|
|
|
|
By
|
/
s/ C. Stanley Bailey
|
|
|
C.
Stanley Bailey
|
|
|
Chairman
and Chief Executive
Officer
|
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints C. Stanley Bailey, Rick D. Gardner and James A. White,
and each or any 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
|
|
Chairman
and Chief Executive Officer
|
|
May
21, 2010
|
C.
Stanley Bailey
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
/s/
James A. White
|
|
Chief
Financial Officer
|
|
|
James
A. White
|
|
(Principal
Financial Officer)
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
James C. Gossett
|
|
Chief
Accounting Officer
|
|
|
James
C. Gossett
|
|
(Principal
Accounting Officer)
|
|
|
|
|
|
|
|
/s/
Roger D. Barker
|
|
Director
|
|
|
Roger
D. Barker
|
|
|
|
|
|
|
|
|
|
/s/
Thomas E. Dobbs, Jr.
|
|
Director
|
|
|
Thomas
E. Dobbs, Jr.
|
|
|
|
|
|
|
|
|
|
/s/
Rick D. Gardner.
|
|
Vice
Chairman and Director
|
|
|
Rick
D. Gardner
|
|
|
|
|
|
|
|
|
|
/s/
Thomas E. Jernigan, Jr.
|
|
Director
|
|
|
Thomas
E. Jernigan, Jr.
|
|
|
|
|
|
|
|
|
|
/s/
James Mailon Kent, Jr.
|
|
Director
|
|
|
James
Mailon Kent, Jr.
|
|
|
|
|
|
|
|
|
|
/s/
Mark A. Lee
|
|
Director
|
|
|
Mark
A. Lee
|
|
|
|
|
|
|
|
|
|
/s/
Peter L. Lowe
|
|
Director
|
|
|
Peter
L. Lowe
|
|
|
|
|
|
|
|
|
|
/s/
D. Dewey Mitchell
|
|
Director
|
|
|
D.
Dewey Mitchell
|
|
|
|
|
|
|
|
|
|
/s/
Robert R. Parrish, Jr.
|
|
Director
|
|
|
Robert
R. Parrish, Jr.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Charles W. Roberts, III
|
|
Director
|
|
|
Charles
W. Roberts, III
|
|
|
|
|
|
|
|
|
|
/s/
C. Marvin Scott
|
|
Vice
Chairman and Director
|
|
|
C.
Marvin Scott
|
|
|
|
|
|
|
|
|
|
/s/
James C. White, Sr.
|
|
Director
|
|
|
James
C. White, Sr.
|
|
|
|
|
EXHIBIT INDEX
|
|
|
Exhibit
|
|
|
Number
|
|
Description
of Exhibit
|
|
|
|
(3)
|
|
Restated
Certificate of Incorporation of Superior Bancorp, filed as Exhibit
(3) to the Company’s Current Report on Form 8-K dated November
19, 2009, is hereby incorporated herein by reference.
|
|
|
|
(4)
|
|
Superior
Bancorp 2010 Incentive Compensation Plan, filed as Annex A to the
Company’s definitive Proxy Statement dated March 19, 2010, is incorporated
herein by reference.
|
|
|
|
(5)
|
|
Opinion
of William H. Caughran as to the legality of the Superior Bancorp Common
Stock being registered.
|
|
|
|
(23)-1
|
|
Consent
of Grant Thornton LLP.
|
|
|
|
(23)-2
|
|
Consent
of William H. Caughran (included in Exhibit 5).
|
|
|
|
(24)
|
|
Powers
of Attorney (set forth on the signature page of this Registration
Statement).
|