sv3za
As
filed with the Securities and Exchange Commission on May 28, 2010
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Registration No. 333-161769 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
SUPERIOR BANCORP
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
(State or Other Jurisdiction of Incorporation or Organization)
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63-1201350
(I.R.S. Employer Identification Number) |
17
North
20th Street
Birmingham, Alabama 35203
(205) 327-1400
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
C. Stanley Bailey
Chairman and Chief Executive Officer
Superior Bancorp
17 North
20th
Street
Birmingham, Alabama 35203
(205) 327-1400
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
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Robert E. Lee Garner
Haskell Slaughter Young & Rediker, LLC
1400 Park Place Tower
2001 Park Place North
Birmingham, Alabama 35203
(205) 251-1000
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William H. Caughran
General Counsel
Superior Bancorp
17 North
20th Street
Birmingham, Alabama 35203
(205) 327-1400 |
Approximate date of commencement of proposed sale to the public: from time to time after the
effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box.
þ
If this form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to rule 413(b) under the Securities Act, check the following box. o
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):
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Large accelerated filer o
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Accelerated
filer o
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Non-accelerated filer o
(Do not check if a smaller reporting company)
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Smaller
reporting company þ |
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Title of each class of |
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Amount to |
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Proposed Maximum |
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Aggregate Offering |
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Amount of |
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securities to be registered |
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be Registered |
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offering price per unit |
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Price |
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Registration Fee |
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Warrant to Purchase Common
Stock, $.001 par value per
share, and underlying
shares of Common Stock(1)
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1,000,000 |
(1) |
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$ |
7.53 |
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7,530,000 |
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420.17 |
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Represents shares of the registrants common stock underlying the
warrant issued on September 17, 2008 to the selling securityholders.
The warrant is exercisable for an aggregate amount of 1,000,000 shares
of common stock of the Company at an exercise price of $7.53 per
share. The warrant will expire on September 15, 2013. Pursuant to Rule
416(a) of the Securities Act of 1933, as amended, this registration
statement also registers such additional shares of the registrants
common stock as may become issuable to prevent dilution as a result of
stock splits, stock dividends or similar transactions. |
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Calculated in accordance with Rule 457(i) with respect
to the per share exercise price of the warrant of $7.53. |
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(3) |
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Previously paid. |
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The Registrant hereby amends this registration statement on such date or dates as may be necessary
to delay its effective date until the Registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. The selling
securityholders may not sell these securities until the registration statement filed with the
Securities and Exchange Commission relating to these securities is effective. This prospectus is
not an offer to sell these securities, and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 28, 2010
PROSPECTUS
SUPERIOR BANCORP
Warrant to Purchase 1,000,000 shares of common stock
1,000,000 shares of common stock
This prospectus relates to the potential resale from time to time by selling securityholders
identified in this prospectus and any accompanying prospectus and their transferees of a warrant to
purchase 1,000,000 shares of our common stock, $0.001 par value per share and any shares of common
stock issuable from time to time upon exercise of the warrant. In this prospectus, we refer to the
warrant and the shares of common stock issuable upon exercise of the warrant, collectively, as the
securities, and individually, as the warrant and shares of common stock. We originally issued the
warrant pursuant to the Agreement to Purchase Subordinated Notes, dated September 17, 2008 (the
Agreement) pursuant to which Durden Enterprises, LLC purchased subordinated debt issued by our
wholly owned principal bank subsidiary Superior Bank, in a transaction exempt from the registration
requirements of the Securities Act of 1933, as amended, or the Securities Act. We refer to Durden
Enterprises, LLC as our initial selling securityholder. Although we will receive the exercise price
of the warrant that is exercised by the initial selling securityholder, we will not receive any of
the proceeds from the disposition of the shares by the initial selling securityholder, but we will
incur expenses in connection with the registration of such shares.
The initial selling securityholder and its successors, including transferees, which we
collectively refer to as the selling securityholders, may offer the securities from time to time
directly or through underwriters, broker-dealers or agents and in one or more public or private
transactions and at fixed prices, prevailing market prices, at prices related to prevailing market
prices or at negotiated prices. If these securities are sold through underwriters, broker-dealers
or agents, the selling securityholders will be responsible for underwriting discounts or
commissions or agents commissions.
Our
common stock is traded on the NASDAQ Global Market under the symbol
SUPR. On May 26, 2010 the closing price of our
common stock on the NASDAQ Global Market was $2.99 per share. You
are urged to obtain current market quotations of the common stock.
Investing in our securities involves a high degree of risk. See Risk Factors
beginning on page 2.
Our principal executive offices are located at 17 North 20th Street, Birmingham,
Alabama 35203, and our telephone number is (205) 327-1400.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal offense.
These securities are not deposits, savings accounts or other obligations of any bank or
savings association and are not insured by the Federal Deposit Insurance Corporation or any other
governmental agency.
The
date of this prospectus is May ___ , 2010.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the Securities and Exchange
Commission, or the SEC, using a shelf registration process. Under this shelf registration
process, the selling securityholders may, from time to time, offer and sell, in one or more
offerings, the securities described in this prospectus.
We may provide a prospectus supplement containing specific information about the terms of a
particular offering by the selling securityholders. The prospectus supplement may also add, update
or change information in this prospectus. If the information in this prospectus is inconsistent
with a prospectus supplement, you should rely on the information in that prospectus supplement. You
should read both this prospectus and, if applicable, any prospectus supplement. See Where You Can
Find More Information for more information.
In this prospectus, Superior, we, our, ours, and us refer to Superior Bancorp, and
its subsidiaries, unless the context otherwise requires. References to Superior Bank mean
Superior Bank, which is our principal bank subsidiary.
SUMMARY
The following summary highlights selected information contained elsewhere in this prospectus
and does not contain all of the information that you should consider before investing in our
securities. You should read the entire prospectus carefully including the Risks Factors and the
documents that we refer to or incorporate by reference.
Superior Bancorp is a Delaware-chartered thrift holding company headquartered in Birmingham,
Alabama. We offer a broad range of banking and related services in 73 locations in Alabama and
Florida through Superior Bank, our principal subsidiary. Superior Banks consumer finance
subsidiaries operate an additional 24 consumer finance offices in
North Alabama, doing business as
1st
Community Credit and Superior Financial Services. We had assets of
approximately $3.34 billion, loans of approximately
$2.505 billion, deposits of approximately $2.753
billion and stockholders equity of approximately
$187.2 million at March 31, 2010.
Our principal executive offices are located at 17 North 20th Street, Birmingham, Alabama
35203, and our telephone number is (205) 327-1400. Our common stock is listed on the NASDAQ Global
Market under the symbol SUPR.
On September 17, 2008, we entered into the Agreement with Superior Bank and Durden
Enterprises, LLC, pursuant to which: (1) Superior Bank agreed to issue and sell up to $20,000,000
in aggregate principal amount of its 9.5% Subordinated Notes due September 15, 2018 (the
Subordinated Notes); (2) Durden Enterprises, LLC agreed to purchase from Superior Bank the
aggregate principal amount of $10,000,000 in Subordinated Notes; and (3) we agreed to issue to
Durden Enterprises, LLC, in consideration of Durden Enterprises, LLCs agreement to purchase the
Subordinated Notes, a warrant to purchase 1,000,000 shares of our common stock, par value $.001, at
a price per share equal to the greater of (i) $7.00 or (ii) the average closing price per share of
our common stock on the NASDAQ Global Market for the ten trading days immediately preceding the
closing of the Agreement. The average closing price per share of our common stock on the NASDAQ
Global Market for the ten trading days immediately preceding the closing of the Agreement was
$7.53; therefore, the warrant has an exercise price of $7.53. The warrant is exercisable at any
time prior to 5:00 p.m., Birmingham, Alabama time, on September 15, 2013.
We are registering the warrant sold to Durden Enterprises, LLC pursuant to the transaction
described above and elsewhere in this prospectus, as well as the shares of our common stock to be
issued upon the exercise of the warrant.
FORWARD-LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides a safe harbor for
forward-looking statements made by us or on our behalf. Some of the disclosures in this prospectus
and the documents incorporated by reference, including any statements preceded by, followed by or
which include the words may, could, should, will, would, hope, might, believe,
expect, anticipate, estimate, intend, plan, assume or similar expressions constitute
forward-looking statements.
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These forward-looking statements, implicitly and explicitly, include the assumptions
underlying the statements and other information with respect to our beliefs, plans, objectives,
goals, expectations, anticipations, estimates, intentions, financial condition, results of
operations, future performance and business, including our expectations and estimates with respect
to our revenues, expenses, earnings, return on equity, return on assets, efficiency ratio, asset
quality, the adequacy of our allowance for loan losses and other financial data and capital and
performance ratios.
Although we believe that the expectations reflected in our forward-looking statements are
reasonable, these statements involve risks and uncertainties which are subject to change based on
various important factors (some of which are beyond our control). The following factors, among
others, could cause our financial performance to differ materially from our goals, plans,
objectives, intentions, expectations and other forward-looking statements: (1) the strength of the
United States economy in general and the strength of the regional and local economies in which we
conduct operations; (2) the effects of, and changes in, trade, monetary and fiscal policies and
laws, including interest rate policies of the Board of Governors of the Federal Reserve System; (3)
increases in FDIC deposit insurance premiums and assessments;
(4) inflation, interest rate, market and monetary fluctuations; (5) our ability to successfully
integrate the assets, liabilities, customers, systems and management we acquire or merge into our
operations; (6) our timely development of new products and services in a changing environment,
including the features, pricing and quality compared to the products and services of our
competitors; (7) the willingness of users to substitute competitors products and services for our
products and services; (8) changes in loan underwriting, credit
review or loss reserve policies associated with economic conditions,
examination conclusions, or regulatory developments; (9) the impact of changes in financial services policies, laws and
regulations, including laws, regulations and policies concerning taxes, banking, securities and
insurance, and the application thereof by regulatory bodies;
(10) our focus on lending to small to mid-size community-based
businesses, which may increase our credit risk; (11) our ability to resolve any legal
proceeding on acceptable terms and its effect on our financial condition or results of operations;
(12) technological changes; (13) changes in consumer
spending and savings habits; (14) the effect of
natural or environmental disasters, such as, amongst others,
hurricanes and oil spills, in our geographic markets; (15) regulatory, legal or
judicial proceedings; (16) the continuing instability in the domestic and international capital
markets; (17) the effects of new and proposed laws relating to financial institutions and credit
transactions; and (18) the effects of policy initiatives that
may be introduced by the Presidential administration or Congress and
related regulatory actions; and (19) our success in any new
capital financing activities we may undertake.
If one or more of the factors affecting our forward-looking information and statements proves
incorrect, then our actual results, performance or achievements could differ materially from those
expressed in, or implied by, forward-looking information and statements contained in this annual
report. Therefore, we caution you not to place undue reliance on our forward-looking information
and statements.
We do not intend to update our forward-looking information and statements, whether written or
oral, to reflect change. All forward-looking statements attributable to us are expressly qualified
by these cautionary statements.
RISK FACTORS
An investment in our securities involves significant risks. You should carefully consider the
risks and uncertainties and the risk factors set forth herein under Forward Looking Statements
and in the documents and reports filed with the SEC that are incorporated by reference into this
prospectus, as well as any risks described in any applicable prospectus supplement, before you make
an investment decision regarding the securities. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also affect our business operations.
USE OF PROCEEDS
The selling securityholders will make offers and sales of the securities pursuant to this
prospectus and any applicable prospectus supplement. We will not receive any of the proceeds of
offerings of the securities. The selling securityholders will pay any underwriting discounts and
commissions and expenses they incur for brokerage, accounting or tax or any other expenses they
incur in disposing of the shares of common stock. We will incur certain expenses in connection with
the registration with the Securities and Exchange Commission (SEC) of the securities to be sold
by the selling securityholders and preparation of any applicable prospectus supplement pursuant to
the terms of our agreement with the selling securityholders, as described below.
We will receive proceeds from the issuance of shares of our common stock upon the exercise of
the warrant. We intend to use any proceeds from the cash exercise of the warrant for general
corporate purposes. If the entire warrant is exercised, we would receive aggregate gross proceeds
of approximately $7,530,000.
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DESCRIPTION OF WARRANT TO PURCHASE COMMON STOCK
The following is a brief description of the terms of the warrant that may be resold by the
selling securityholders. This summary does not purport to be complete in all respects. This
description is subject to and qualified in its entirety by reference to the warrant, a copy of
which has been filed with the SEC and is also available upon request from us.
Shares of Common Stock Subject to the Warrant
The warrant is initially exercisable for 1,000,000 shares of our common stock. If we sell or
transfer all or substantially all of our assets, or we are acquired by another entity by means of a
merger, consolidation or other transaction or series of related transactions, resulting in an
exchange of the outstanding shares of our common stock such that our stockholders prior to such
transaction own, directly or indirectly, less the 50% of the voting power of the surviving entity,
the warrant shall, on the date of such event, no longer be exercisable and become null and void. In
the event of a proposed transaction of the kind described above, we shall notify securityholders of
the warrant at least fifteen (15) days prior to the consummation of such event or transaction. The
number of shares subject to the warrant are subject to the further adjustments described below
under the heading Adjustments to the Warrant.
Exercise of the Warrant
The initial exercise price applicable to the warrant is the greater of (i) $7.00 or (ii) the
average closing price per share of our common stock on the NASDAQ Global Market for the ten trading
days immediately preceding the closing of the Agreement. The average closing price per share of our
common stock on the NASDAQ Global Market for the ten trading days immediately preceding the closing
of the Agreement was $7.53; therefore, the warrant has an exercise price of $7.53.
The warrant, which may be exercised in whole or in part, was immediately exercisable upon its
issuance and will expire at 5:00 p.m., Birmingham, Alabama time, on September 15, 2013 by surrender
of the warrant and a completed and executed Subscription Form attached as an annex to the warrant
and delivery of a certified or cashiers check in an amount equal to (i) the number of shares of
common stock being purchased, multiplied by (ii) $7.53. The exercise price applicable to the
warrant is subject to the further adjustments described below under the heading Adjustments to
the Warrant.
Upon exercise of the warrant, certificates for the shares of common stock issuable upon
exercise will be issued to the warrantholder. If the warrant is exercised for less than the full
number of shares, the warrant will be surrendered and we shall issue a new warrant of the same
tenor and for the purchase of the warrant shares not purchased upon such exercise to the
warrantholder. We will not issue fractional shares upon any exercise of the warrant. Instead, the
warrantholder will be entitled to a cash payment equal to the market price of our common stock on
the last day preceding the exercise of the warrant (less the pro-rated exercise price of the
warrant) for any fractional shares that would have otherwise been issuable upon exercise of the
warrant. We will at all times reserve the aggregate number of shares of our common stock for which
the warrant may be exercised. We have listed the shares of common stock issuable upon exercise of
the warrant with the NASDAQ Global Market.
Rights as a Shareholder
The securityholder shall have no rights or privileges of the holders of our common stock,
including any voting rights, until (and then only to the extent) the warrant has been exercised.
Transferability
The initial selling securityholder may not offer, sell or otherwise dispose of the warrant
except under circumstances which will not result in a violation of the Securities Act. Upon
exercise of the warrant, the securityholder shall confirm in writing that the shares of common
stock so purchased are being acquired for investment and not with a view toward distribution or
resale. The warrant, and all rights under the warrant may not be assigned, disposed of, encumbered,
or otherwise transferred, except (i) to an Affiliate (as that term is defined in Rule 405 as
promulgated under the Securities Act), or any officer of the securityholder, or (ii) to any
underwriter in connection with an effective registration statement filed under the Securities Act
used in connection with a public offering of our common stock.
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Adjustments to the Warrant
Adjustments in Connection with Stock Splits, Subdivisions, Reclassifications and Combinations.
The number of shares for which the warrant may be exercised and the exercise price applicable to
the warrant will be proportionately adjusted in the event we pay dividends or make distributions of
our common stock, subdivide, combine or reclassify outstanding shares of our common stock.
Anti-dilution Adjustment. We will not, by amendment of our restated certificate of
incorporation or through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of the warrant, but will at all times assist in the carrying out of
all such terms and in the taking of all such action as may be necessary or appropriate in order to
protect the rights of the securityholders against dilution or other impairment.
Adjustments for Dividends in Common Stock. If we declare any dividend on common stock both the
number of shares issuable upon exercise of the warrant and the exercise price will be adjusted.
Business Combinations. In the event of a merger, consolidation or similar transaction
involving Superior and requiring shareholder approval, the warrantholders right to receive shares
of our common stock upon exercise of the warrant shall be converted into the right to exercise the
warrant for the consideration that would have been payable to the warrantholder with respect to the
shares of common stock for which the warrant may be exercised, as if the warrant had been exercised
immediately prior to such merger, consolidation or similar transaction.
DESCRIPTION OF COMMON STOCK
The following is a brief description of our common stock. This summary does not purport to be
complete in all respects. This description is subject to and qualified in its entirety by
reference to our restated certificate of incorporation, a copy of which has been filed with the SEC
and which is also available upon request from us.
General
We
have 200,000,000 shares of authorized common stock, $.001 par value per share, of which
12,560,457 shares were outstanding as of May 7, 2010.
Holders of our common stock are entitled to one vote for each share that they hold for the
election of directors and on all matters to be submitted to a vote of the stockholders and have no
pre-emptive rights. Shares of our common stock are not redeemable or convertible.
Holders of our common stock are entitled to receive dividends and other distributions if, as
and when declared by our board of directors out of any funds legally available for dividends. Upon
our liquidation or dissolution, holders of our common stock are also entitled to receive pro rata
our net assets, if any, remaining after payment of all our creditors and preferred liquidation
payments to holders of any outstanding class or series of
preferred stock.
Our preferred stock has preference over our common stock with respect to the payment of dividends and the
distribution of assets in the event of our liquidation or dissolution. Our preferred stock also has
such other preferences as currently, or as may be, fixed by our board of directors.
Our common stock is listed on the NASDAQ Global Market. Outstanding shares of our common
stock are validly issued, fully paid and non-assessable. Holders of our common stock are not, and
will not be, subject to any liability as shareholders.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Registrar and Transfer Company.
Restrictions on Ownership
Federal law generally provides that no person or company, acting directly or indirectly or
through or in concert with one or more other persons, may acquire control of a savings and loan
holding company, such as Superior, without the prior approval of the OTS. Generally, a person or a
company will be deemed to control a savings and loan holding company if it (i) acquires more than
25% of any class of the voting securities of the
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savings and loan holding company or (ii) controls the election of a majority of the directors
of the savings and loan holding company. A person or company will be deemed to control, subject to
rebuttal, a savings and loan holding company if it (i) acquires more than 10% of any class of
voting stock of the savings and loan holding company or (ii) acquires more than 25% of any class of
stock (voting or non-voting) of the savings and loan holding company and in each case is subject to
any of the control factors established by the OTS. In addition, a person or company will be deemed
to control, subject to rebuttal, a savings and loan holding company if it holds any combination of
voting stock and proxies representing more than 25% of any class of voting stock of the savings and
loan holding company that enables it to: (i) elect one-third or more of the savings and loan
holding companys board of directors; (ii) cause the savings and loan holding companys
stockholders to approve an acquisition or corporate reorganization; or (iii) exert a continuing
influence on a material aspect of the business operations of the savings and loan holding company.
SELLING SECURITYHOLDERS
On September 17, 2008, in a transaction exempt from the registration requirements of the
Securities Act, we issued a warrant to Durden Enterprises, LLC, the initial selling securityholder,
pursuant to which the holder of the warrant may purchase 1,000,000 shares of our common stock, on
or prior to 5:00 p.m., Birmingham, Alabama time, September 15, 2013, at an exercise price per share
equal to $7.53. The warrant was issued pursuant to the terms of the Agreement.
The number of shares of our common stock issuable upon exercise of the warrant may be adjusted
if events specified in the warrant occur. Instead of issuing fractional shares upon exercise of the
warrant, we will pay an amount in cash equal to the current market value of the fractional shares.
The securities offered by this prospectus shall be adjusted to cover any additional securities as
may become issuable to prevent dilution resulting from stock splits, stock dividends,
reorganizations, consolidations, mergers, or similar transactions. Notwithstanding the foregoing,
in the event of we cease operations or sell or transfer all or substantially all of our assets, or
we are acquired by another entity by means of merger, consolidation or other transaction or series
of related transactions, resulting in the exchange of our outstanding shares such that our
shareholders prior to such transaction own, directly or indirectly, less the 50% of the voting
power of the surviving entity, the warrant shall, on the date of such event, no longer be
exercisable and become null and void. Although we will receive the exercise price of the warrant,
we will not receive any proceeds from the sale of the securities offered by the selling
securityholders.
Pursuant to the Agreement, we agreed to file with the SEC a registration statement covering
the resale of all of the securities covered by this prospectus pursuant to Rule 415(a)(iii) of the
Securities Act. Accordingly, we initially filed a registration statement on Form S-3 on September 4, 2009, with respect to the resale of these securities from
time to time.
We do not know when or in what amounts the selling securityholders may offer the securities
for sale. The selling securityholders might not sell any or all of the securities registered under
this prospectus. Because the selling securityholders may offer all or some of the securities
pursuant to this offering, and because currently no sale of any of the securities is subject to any
agreements, arrangements or understandings, we cannot estimate the number of securities that will
be held by the selling securityholders after completion of the offering. For the purposes of the
table below we have assumed that after termination of this offering none of the securities covered
by this prospectus will be held by the selling securityholders.
The following table sets forth the name and address of the initial selling securityholder, the
securities beneficially owned by the initial selling securityholder and the securities that may be
disposed of by the initial selling securityholder or its transferees under this prospectus. The
information is based on information provided by or on behalf of the initial selling securityholder
to us and is as of the date of this prospectus. Beneficial ownership is determined in accordance
with the rules of the SEC and includes voting or investment power with respect to the securities.
To our knowledge, the initial selling securityholder has sole voting and investment power with
respect to the securities.
The applicable percentages of ownership are based on an
aggregate of 12,560,457 shares of our
common stock issued and outstanding on May 7, 2010.
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Offering |
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Number of Shares |
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Offering |
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Being Offered (2) |
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Percent |
Durden Enterprises, LLC
2605 Thomas Drive, Suite 150
Panama City Beach, Florida 32408 |
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1,031,250 |
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8.21 |
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1,000,000 |
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31,250 |
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.25 |
% |
Any pledgees, assignees, transferees
and other successors in
interest of the Selling Stockholders(3) |
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(1) |
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Consists of 31,250 shares owned by Durden Enterprises, LLC and
1,000,000 shares of common stock issuable upon exercise of the
warrant. Does not include 84,019 shares owned by the beneficiaries of
the late K. Earl Durden. K. Earl Durden was the principal
of Durden Enterprises, LLC and was a director of Superior Bancorp
from October 2009 to April 2010. |
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(2) |
|
Includes shares of common stock issuable pursuant to anti-dilution and related provisions of the warrant. |
|
(3) |
|
Assumes that any pledgees, assignees, transferees and other successors
in interest do not beneficially own any of our common stock other than
common stock issuable or issued upon exercise of the warrant. |
Information concerning the selling securityholders may change from time to time and any such
changed information will be set forth in supplements to this prospectus if and when necessary. The
names of any additional selling securityholders and information about their holdings and any
offering of securities by them will be set forth in one or more supplements to this prospectus.
PLAN OF DISTRIBUTION
The selling securityholders and their successors, including their transferees, may sell the
securities directly to purchasers or through underwriters, broker-dealers or agents, who may
receive compensation in the form of discounts, concessions or commissions from the selling
securityholders or the purchasers of the securities. These discounts, concessions or commissions as
to any particular underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved.
The securities may be sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of sale or at negotiated
prices. These sales may be effected in transactions, which may involve crosses or block
transactions:
|
|
|
on any national securities exchange or quotation service on which the
common stock may be listed or quoted at the time of sale, including,
as of the date of this prospectus, the NASDAQ Global Market; |
|
|
|
|
in the over-the-counter market; |
|
|
|
|
in transactions otherwise than on these exchanges or services or in the over-the-counter market; or |
|
|
|
|
through the writing of options, whether the options are listed on an options exchange or otherwise. |
In addition, any securities that qualify for sale pursuant to Rule 144 under the Securities
Act may be sold under Rule 144 rather than pursuant to this prospectus.
In connection with the sale of the securities or otherwise, the selling securityholders may
enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the
common stock issuable upon exercise of the warrant in the course of hedging the positions they
assume. The selling securityholders may also sell short the common stock issuable upon exercise of
the warrant and deliver common stock to close out short positions, or loan or pledge the common
stock issuable upon exercise of the warrant to broker-dealers that in turn may sell these
securities.
The aggregate proceeds to the selling securityholders from the sale of the securities will be
the purchase price of the securities less discounts and commissions, if any.
In effecting sales, broker-dealers or agents engaged by the selling securityholders may
arrange for other broker-dealers to participate. Broker-dealers or agents may receive commissions,
discounts or concessions from the selling securityholders in amounts to be negotiated immediately
prior to the sale.
6
In offering the securities covered by this prospectus, the selling securityholders and any
broker-dealers who execute sales for the selling securityholders may be deemed to be underwriters
within the meaning of Section 2(a)(11) of the Securities Act in connection with such sales. Any
profits realized by the selling securityholders and the compensation of any broker-dealer may be
deemed to be underwriting discounts and commissions. Selling securityholders who are underwriters
within the meaning of Section 2(a)(11) of the Securities Act will be subject to the prospectus
delivery requirements of the Securities Act and may be subject to certain statutory and regulatory
liabilities, including liabilities imposed pursuant to Sections 11, 12 and 17 of the Securities Act
and Rule 10b-5 under the Securities Exchange Act of 1934, or the Exchange Act.
In order to comply with the securities laws of certain states, if applicable, the securities
must be sold in such jurisdictions only through registered or licensed brokers or dealers. In
addition, in certain states the securities may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of
securities pursuant to this prospectus and to the activities of the selling securityholders. In
addition, we will make copies of this prospectus available to the selling securityholders for the
purpose of satisfying the prospectus delivery requirements of the Securities Act, which may include
delivery through the facilities of the NASDAQ Global Market pursuant to Rule 153 under the
Securities Act.
At the time a particular offer of securities is made, if required, a prospectus supplement
will set forth the number and type of securities being offered and the terms of the offering,
including the name of any underwriter, dealer or agent, the purchase price paid by any underwriter,
any discount, commission and other item constituting compensation, any discount, commission or
concession allowed or reallowed or paid to any dealer, and the proposed selling price to the
public.
LEGAL MATTERS
The validity of the warrant and the common stock offered hereby will be passed upon for us by
Haskell Slaughter Young & Rediker, LLC.
EXPERTS
The consolidated financial statements
and managements assessment of the effectiveness of internal control over financial reporting
incorporated by reference in this prospectus and elsewhere in the registration statement have been so
incorporated by reference in reliance upon the reports of Grant Thornton LLP, independent registered
public accountants, upon the authority of said firm as experts in accounting and auditing in giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
SEC. Our SEC filings are available to the public over the Internet at the SECs website at
http:/www.sec.gov. Copies of certain information filed by us with the SEC are also available on our
website at http://www.superiorbank.com. Our website is not a part of this prospectus. You may also
read and copy any document we file at the SECs public reference room, 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the public reference room.
Because our common stock is listed on the NASDAQ Global Market, you may also inspect reports,
proxy statements and other information at the offices of the NASDAQ Global Market.
The SEC allows us to incorporate by reference information we file with it, which means that
we can disclose important information to you by referring you to other documents. The information
incorporated by reference is considered to be a part of this prospectus, and information that we
file later with the SEC will automatically update and supersede this information. In all cases, you
should rely on the later information over different information included in this prospectus.
7
We incorporate by reference the documents listed below and all future filings we make with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the
offering, except to the extent that any information contained in such filings is deemed furnished
in accordance with SEC rules:
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|
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|
Annual Report on Form 10-K for the year ended
December 31, 2009; |
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|
|
|
|
Definitive Proxy Statement on Schedule 14A; |
|
|
|
|
|
Quarterly Report on Form 10-Q for the quarter ended
March 31, 2010; |
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|
|
|
Current Reports on Form 8-K filed on January 22, 2010,
February 9, 2010; April 20, 2010, May 6, 2010 and
May 6, 2010; and |
|
|
|
|
|
Registration Statement on Form 8-A (relating to our common stock) filed on November 5, 1998. |
You may request a copy of these filings, at no cost, by writing or telephoning us at the
following address:
Superior Bancorp
17 North Twentieth Street
Birmingham, Alabama 35203
205-327-1400
Attn: William H. Caughran
You should rely only on the information incorporated by reference or provided in this
prospectus or any prospectus supplement. We have not authorized anyone else to provide you with
different information. Neither we nor the selling securityholders are making an offer of these
securities in any state where the offer is not permitted. You should not assume that the
information in this prospectus, any prospectus supplement or document incorporated by reference is
accurate as of any other date other than the date on the front of the relevant document.
8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses to be incurred in connection with the sale
and distribution of the securities being registered hereby, all of which will be borne by Superior
(except any underwriting discounts and commissions and expenses incurred by the selling
securityholders for brokerage, accounting, tax or legal services or any other expenses incurred by
the selling securityholders in disposing of the shares). All amounts shown are estimates except the
SEC registration fee.
|
|
|
|
|
SEC registration fee |
|
$ |
420 |
|
|
|
Legal fees and expenses |
|
|
15,000 |
|
|
|
Accounting fees and expenses |
|
|
10,000 |
|
|
|
Printing and miscellaneous expenses |
|
|
5,000 |
|
|
|
|
|
|
|
Total expenses |
|
$ |
30,420 |
|
|
|
|
|
Item 15. 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. Superiors
Restated Certificate of Incorporation (the Certificate) contains a provision eliminating or
limiting director liability to Superior and its stockholders for monetary damages arising from acts
or omissions in the directors capacity as a director. The provision does not, however, eliminate
or limit the personal liability of a director (i) for any breach of such directors fiduciary duty
of loyalty to Superior 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
Superior 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 Superior 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 directors 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 Superiors Certificate
provides for mandatory indemnification rights, subject to limited exceptions, to any director,
officer, employee, or agent of Superior who, by reason of the fact that he or she is a director,
officer, employee, or agent of Superior, 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, Superior 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.
II-1
Item 16. Exhibits
|
|
|
EXHIBIT |
|
|
NUMBER |
|
DESCRIPTION |
|
|
|
|
3.1
|
|
Restated Certificate of Incorporation, as
amended, of the Registrant (filed as
Exhibit 3 to the Registrants Current
Report on Form 8-K filed on November 19, 2009 and incorporated herein by
reference). |
|
|
|
|
|
3.2
|
|
By-laws of the Registrant (filed as
Exhibit 3 to the Registrants Current
Report on Form 8-K, filed on October 22, 2009 and incorporated herein by
reference). |
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|
|
|
|
3.3
|
|
Certificate of Designation of
Rights and Preferences of Series B Convertible Preferred Stock
(filed as Exhibit 3 to the Registrants Current Report on
Form 8-K, filed May 6, 2010 and incorporated herein by
reference). |
|
4.1
|
|
Agreement to Purchase Subordinated Notes entered into September 17, 2008, among Superior
Bancorp., Superior Bank and Durden Enterprises, LLC (incorporated by reference to Exhibit
10.4 of the Registrants Quarterly Report on Form 10-Q, dated November 7, 2008, filed
with the SEC) |
|
|
|
4.2
|
|
Warrant, dated as of September 17, 2008, issued by Superior Bancorp to Durden
Enterprises, LLC (incorporated by reference to Exhibit 10.7 of the Registrants Quarterly
Report on Form 10-Q, dated November 7, 2008, filed with the SEC) |
|
|
|
5.1
|
|
Opinion of Haskell Slaughter Young & Rediker, LLC. |
|
|
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23.1
|
|
Consent of Grant Thornton, LLP. |
|
|
|
|
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23.2
|
|
Consent of Haskell Slaughter Young & Rediker, LLC. (included in Exhibit 5.1) |
|
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|
24
|
|
Powers of Attorney (included in the
signature pages to the Registration Statement).* |
|
Item 17. Undertakings.
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, as amended (the Securities Act of 1933);
(ii) to reflect in the prospectus any facts or events arising after the effective
date of this 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 this registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total dollar value 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
prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee table in the
effective registration statement; and
(iii) to include any material information with respect to the plan of distribution
not previously disclosed in this registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), that are
incorporated by reference in this registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of this registration statement.
II-2
(2) That, for the purposes of determining any liability under the Securities Act of 1933, each
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 the 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed pursuant to Rule 424(b) as part of the registration statement
relating to an offering, other than registration statements relying on Rule 430B or other than
prospectus filed in reliance on Rule 430A shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness. Provided,
however, that no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such first use, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such date of first
use.
(5) That, for the purpose of determining liability of a Registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications the undersigned Registrant will
be a seller to the purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) any preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) the portion of any other free writing prospectus relating to the offering
containing material information about the undersigned Registrant or its securities provided by
or on behalf of the undersigned Registrant; and
(iv) any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(6) The undersigned registrant hereby undertakes that:
(i) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(ii) For the purpose of
determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus
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.
The Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrants annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this
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.
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
indemnification provisions described herein, or otherwise, the Registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act of 1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 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 28, 2010.
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SUPERIOR BANCORP
|
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By: |
/s/ C. Stanley Bailey
|
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C. Stanley Bailey |
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Chairman and Chief Executive Officer |
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SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Superior Bancorp hereby severally constitute and
appoint C. Stanley Bailey and William H. Caughran and each of them singly, our true and lawful
attorneys with full power to any of them, and to each of them singly, to sign for us and in our
names in the capacities indicated below the Registration Statement on Form S-3 filed herewith and
any and all pre-effective and post-effective amendments to said Registration Statement and
generally to do all such things in our name and behalf in our capacities as officers and directors
to enable Superior Bancorp to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the SEC, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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* |
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Chairman, President and Chief |
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C. Stanley Bailey
|
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Executive Officer
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May 28, 2010 |
|
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* |
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Chief Financial Officer |
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James A. White
|
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(Principal Financial Officer)
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May 28, 2010 |
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* |
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Chief Accounting Officer |
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James C. Gossett
|
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(Principal Accounting Officer)
|
|
May 28, 2010 |
|
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|
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* |
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Roger D. Barker
|
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Director
|
|
May 28, 2010 |
|
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Thomas E. Dobbs, Jr.
|
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Director
|
|
May 28, 2010 |
|
|
|
|
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* |
|
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|
|
Vice Chairman |
|
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Rick D. Gardner
|
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|
May 28, 2010 |
|
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* |
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Thomas E. Jernigan, Jr.
|
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Director
|
|
May 28, 2010 |
|
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* |
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James Mailon Kent, Jr.
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Director
|
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May 28, 2010 |
_
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Signature |
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Title |
|
Date |
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* |
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Mark A. Lee
|
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Director
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May 28, 2010 |
|
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* |
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Peter L. Lowe
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Director
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May 28, 2010 |
|
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* |
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Director
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May 28, 2010 |
|
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* |
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Director
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May 28, 2010 |
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* |
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Director
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May 28, 2010 |
|
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* |
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Director
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May 28, 2010 |
|
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* |
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Vice Chairman |
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May 28, 2010 |
|
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* |
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Director
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May 28, 2010 |
|
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* By /s/ C. Stanley
Bailey
|
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C. Stanley Bailey Attorney-in-fact
|
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EXHIBIT INDEX
|
|
|
EXHIBIT |
|
|
NUMBER |
|
DESCRIPTION |
|
|
|
|
3.1
|
|
Restated Certificate of Incorporation, as
amended, of the Registrant (filed as
Exhibit 3 to the Registrants Current
Report on Form 8-K filed on November 19,
2009 and incorporated herein by
reference). |
|
|
|
3.2
|
|
By-laws of the Registrant (filed as
Exhibit 3 to the Registrants Current
Report on Form 8-K, filed on October 22,
2009 and incorporated herein by
reference). |
|
|
|
3.3
|
|
Certificate of Designation of Rights and Preferences of Series B Convertible Preferred Stock
(filed as
Exhibit 3 to the Registrants Current
Report on Form 8-K, filed May 6,
2010 and incorporated herein by
reference). |
|
|
|
4.1
|
|
Agreement to Purchase Subordinated Notes entered into September 17, 2008, among Superior
Bancorp., Superior Bank and Durden Enterprises, LLC (incorporated by reference to Exhibit
10.4 of the Registrants Quarterly Report on Form 10-Q, dated November 7, 2008, filed
with the SEC) |
|
|
|
4.2
|
|
Warrant, dated as of September 17, 2008, issued by Superior Bancorp to Durden
Enterprises, LLC (incorporated by reference to Exhibit 10.7 of the Registrants Quarterly
Report on Form 10-Q, dated November 7, 2008, filed with the SEC) |
|
|
|
5.1
|
|
Opinion of Haskell Slaughter Young & Rediker, LLC. |
|
|
|
23.1
|
|
Consent of Grant Thornton, LLP. |
|
|
|
|
23.2
|
|
Consent of Haskell Slaughter Young & Rediker, LLC. (included in Exhibit 5.1) |
|
|
|
24
|
|
Powers of Attorney (included in the signature pages to the Registration Statement).* |
|