As filed with the Securities and Exchange Commission on October _____, 1997
Registration No. 33-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FIRST CITIZENS CORPORATION
(Exact name of Registrant as specified in its charter)
GEORGIA 58-2232785
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
19 JEFFERSON STREET, NEWNAN, GEORGIA 30263
(Address of principal executive offices and zip code)
FIRST CITIZENS CORPORATION
DIRECTORS' DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
BETH LANIER, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
(Name and address of agent for service)
(404) 572-4571
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
<S> <C> <C> <C> <C>
Common
Stock, $1.00 18,000 $35.00 (2) $630,000 (3) $195.00
par value shares (1)
</TABLE>
(1) Representing shares to be issued and sold by the Registrant under the First
State Corporation Directors' Deferred Compensation Plan (the "Plan"). This
Registration Statement also covers such indeterminable number of additional
shares as may become issuable to prevent dilution in the event of a stock split,
stock dividend, reclassification or other similar transaction pursuant to the
terms of the Plan.
(2) The average of the high and low prices of the Registrant's Common Stock as
reported by the Nasdaq National Market for September 22, 1997.
(3) The aggregate offering price is calculated solely for the purpose of
determining the registration fee pursuant to Rule 457(h)(1) under the Securities
Act of 1933, as amended.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
directors of the Registrant as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended September 30, 1996;
(2) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended December 31, 1996;
(3) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 1997;
(4) The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1997; and
(5) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement as filed with the Securities and Exchange
Commission pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14-2-851 of the Georgia Business Corporation Code provides that
a corporation may indemnify its directors and officers against civil and
criminal liabilities. Directors and officers may be indemnified against expenses
if they acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interest of the corporation, if they have not been adjudged
liable on the basis of the improper receipt of a personal benefit and, with
respect to any criminal action, if they had no reasonable cause to believe their
conduct was unlawful. A director or officer may be indemnified against expenses
incurred in connection with a derivative suit if he or she acted in good faith
and in a manner reasonably believed to be in or not opposed to the best interest
of the corporation, except that no indemnification may be made without court
approval if such person was adjudged liable for negligence or misconduct in the
performance of his or her duty to the corporation. Statutory indemnification is
not exclusive of any rights provided by any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise.
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<PAGE>
The Registrant's Bylaws provide that directors and officers of the
Registrant shall be indemnified by the Registrant against expenses and
liabilities incurred in connection with or resulting from threatened, pending or
completed actions, whether civil, criminal, administrative or investigative, in
which said person became involved by reason of having been a director or officer
of the Registrant; provided that such person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Registrant and in addition, with respect to any criminal action or proceeding,
did not have a reasonable cause to believe that his conduct was unlawful. Any
person who has been wholly successful on the merits of or otherwise with respect
to any claim, action, suit or proceeding described above shall be entitled to
indemnification without any further action or approval by the Board of
Directors. In any other situation, indemnification shall be made at the
discretion of the Registrant, but only if the Board of Directors, acting by a
majority vote of a quorum consisting of directors who are not parties to the
claim, find that the person has met the standard of conduct described above. If
no such quorum of the Board exists, then independent legal counsel may render
such opinion as to whether the standards have been met or the holders of a
majority of the stock entitled to vote for the election of directors shall
determine by affirmative vote that such director or officer has met the
standards. However, notwithstanding the foregoing, no officer or director who
has been determined to be liable for negligence or misconduct in the performance
of his duties to the Registrant shall be indemnified unless and except to the
extent that the court in which such action or suit was brought shall determine
that, despite the adjudication of liability and in view of all the
circumstances, such person is fairly and reasonably entitled to be indemnified
for such expenses as the court shall deem proper.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
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<PAGE>
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit
No. Description
<S> <C>
4.1 INSTRUMENTS DEFINING RIGHTS OF SHAREHOLDERS: Articles of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 3.1 to the Registrant's Registration Statement on Form
S-4 as filed with the Securities and Exchange Commission on April 26, 1996 (Reg. No. 333-4304)).
4.2 INSTRUMENTS DEFINING RIGHTS OF SHAREHOLDERS: Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form S-4 as filed with the Securities and
Exchange Commission on April 26, 1996 (Reg. No. 333-4304)).
5 Opinion of Powell, Goldstein, Frazer & Murphy LLP with respect to the securities being registered,
including consent.
23.1 Consent of counsel (included in Exhibit 5).
23.2 Consent of Mauldin & Jenkins, LLC.
24 Power of Attorney (see signature pages to this Registration Statement).
</TABLE>
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;
(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;
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<PAGE>
(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-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial BONA fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(h) 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 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 and will be governed by the final
adjudication of such issue.
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<PAGE>
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Newnan, State of Georgia, on October 2, 1997.
FIRST CITIZENS CORPORATION
By: /s/ Tom Moat
Tom Moat
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Tom Moat and Douglas J. Hertha, and each
of them, his attorneys in fact, each with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign any
amendment to this Registration Statement on Form S-8, and to file the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and hereby ratifies and confirms all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 2, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ J. Littleton Glover Chairman of the Board and Director
J. Littleton Glover, Jr.
/s/ Tom Moat President, Chief Executive Officer and Director
Tom Moat (Principal Executive Officer)
/s/ Ellis Mansour Director
Ellis Mansour
/s/ Don A. Barnette Director
Don A. Barnette
/s/ Thomas B. Chandler Director
Thomas B. Chandler
/s/ Douglas J. Hertha Vice President
Douglas J. Hertha (Principal Financial and Accounting Officer)
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
No.
<S> <C>
4.1 Articles of Incorporation of the Registrant (incorporated herein by reference to
Exhibit 3.1 to the Registrant's Registration Statement on Form S-4 as filed with the
Securities and Exchange Commission on April 26, 1996 (Reg. No. 333-4304)).
4.2 Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form S-4 as filed with the Securities and
Exchange Commission on April 26, 1996 (Reg. No. 333-4304)).
5 Opinion of Powell, Goldstein, Frazer & Murphy LLP with respect to the securities
being registered, including consent.
23.1 Consent of counsel (included in Exhibit 5).
23.2 Consent of Mauldin & Jenkins LLC.
24 Power of Attorney (see signature pages to this Registration Statement).
</TABLE>
Doc. No. 79707
<PAGE>
Exhibit 5
October 2, 1997
First Citizens Corporation
19 Jefferson Street
Newnan, Georgia 30263
Re: Registration Statement on Form S-8
First Citizens Corporation
First Citizens Corporation Directors' Deferred Compensation
Plan
Ladies and Gentlemen:
We have served as counsel for First Citizens Corporation, a Georgia
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on Form
S-8 (the "Registration Statement"), of an aggregate of 18,000 shares (the
"Shares") of common stock, $1.00 par value, of the Company, to be offered and
sold by the Company pursuant to the First Citizens Corporation Directors'
Deferred Compensation Plan (the "Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the authorization of the shares to be issued pursuant to the Plan as
we have deemed necessary and advisable. In such examinations, we have assumed
the genuineness of all signatures on all originals and copies of documents we
have examined, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all certified, conformed or
photostatic copies. As to questions of fact material and relevant to our
opinion, we have relied upon certificates or representations of Company
officials and of appropriate governmental officials.
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate law of the State of Georgia.
<PAGE>
First Citizens Corporation
October 2, 1997
Page 2
Based upon and subject to the foregoing and having regard for such
legal considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares and payment
therefor as provided in the Plan and as contemplated by the
Registration Statement, such Shares will be legally and
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report, dated April 25, 1997, relating to the
consolidated financial statements of First Citizens Corporation and
subsidiaries, contained in the annual report on Form 10-KSB for the year ended
March 31, 1997.
MAULDIN & JENKINS, LLC
/s/ Mauldin & Jenkins, LLC
Atlanta, Georgia
September 29, 1997
