<PAGE> 1
As filed with the Securities and Exchange Commission on April 8, 1999
Registration No. 333-69973
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
AMENDMENT NO. 4
TO
FORM SB-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------------------
FIRST CAPITAL BANK HOLDING CORPORATION
(Name of small business issuer in its charter)
------------------------------
FLORIDA 6712 59-3532208
---- ----------------------
(State or other (Primary Standard Industrial (IRS Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization) ------------------------------
1875A SOUTH 14TH STREET
FERNANDINA BEACH, FLORIDA 32034
(904) 321-0400
(Address and telephone number
of principal executive offices)
---------------------------------
MICHAEL G. SANCHEZ
1875A SOUTH 14TH STREET
FERNANDINA BEACH, FLORIDA 32034
(904) 321-0400
(Name, address and telephone
number of agent for service)
---------------------------------
Copies Requested to:
ROBERT C. SCHWARTZ, ESQ.
SMITH, GAMBRELL & RUSSELL, LLP
SUITE 3100, PROMENADE II
1230 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309
(404) 815-3758
---------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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,
check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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. [ ]
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. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
<TABLE>
<CAPTION>
==================================================================================================================================
Title of each class Proposed maximum Proposed maximum
of Securities Amount to be offering price aggregate Amount of
to be registered registered per unit offering price registration fee*
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock Purchase Warrants(1) 165,000 $ 0 $ 0 $ 0
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value(2) 165,000 $ 10.00 $1,650,000 $ 458.70
- ----------------------------------------------------------------------------------------------------------------------------------
Total $1,650,000 $ 458.70
==================================================================================================================================
</TABLE>
* All of which has been previously paid.
(1) Represents Common stock Purchase Warrants reserved for issuance to the
organizers of the Company
(2) Represents the shares of common Stock which are issuable upon the exercise
of the common Stock Purchase Warrants.
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850(1) of the Florida Business Corporation Act ("FBCA")
permits a Florida corporation to indemnify any person who may be a party to any
third party proceeding by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, against liability
incurred in connection with such proceeding (including any appeal thereof) if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Section 607.0850(2) of the FBCA permits a Florida corporation to
indemnify any person who may be a party to a derivative action if such person
acted in any of the capacities set forth in the preceding paragraph, against
expenses and amounts paid in settlement not exceeding, in the judgement of the
board of directors, the estimated expenses of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding (including appeals), provided that the person
acted under the standards set forth in he preceding paragraph. However, no
indemnification shall be made for any claim, issue or matter for which such
person is found to be liable unless, and only to the extent that, the court.
determines that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the court deems proper.
Section 607.0850(4) of the FBCA provides that any indemnification made
under the above provisions, unless pursuant to a court determination, may be
made only after a determination that the person to be indemnified has met the
standard of conduct described above. This determination is to be made by a
majority vote of a quorum consisting of the disinterested directors of the board
of directors, by duly selected independent legal counsel, or by a majority vote
of the disinterested shareholders. The board of directors also may designate a
special committee of disinterested directors to make this determination.
Section 607.0850(3), however, provides that a Florida corporation must
indemnify any director, or officer, employee or agent of a corporation who has
been successful in the defense of any proceeding referred to in Section
607.0850(1) or (2), or in the defense of any claim, issue or matter therein,
against expenses actually and reasonably incurred by him in connection
therewith.
Expenses incurred by a director or officer in defending a civil or
criminal proceeding may be paid by the corporation in advance of the final
disposition thereof upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it is ultimately determined that
such director or officer is not entitled to indemnification under Section
607.0850. Expenses incurred by other employees or agents in such a proceeding
may be paid in advance of final disposition thereof upon such terms or
conditions that the board of directors deems appropriate.
The FBCA further provides that the indemnification and advancement of
payment provisions contained therein are not exclusive and it specifically
empowers a corporation to make any other further indemnification or advancement
of expenses under any bylaw, Agreement, vote of shareholders or disinterested
actions taken in other capacities while holding an office. However, a
corporation cannot indemnify or advance expenses if a judgment or other final
adjudication establishes that the actions of the director or officer were
material to the adjudicated cause of action and the director or officer (a)
violated criminal law, unless the director or officer had reasonable cause to
believe his conduct was unlawful, (b) derived an improper personal benefit from
a transaction, (c) was or is a director in a circumstance where the liability
under Section 607.0834 (relating to unlawful distributions) applies, or (d)
engages in willful misconduct or conscious disregard for the best interests of
the corporation in a proceeding by or in right of the corporation to procure a
judgment in its favor or in a proceeding by or in right of a shareholder.
II-1
<PAGE> 3
Article XI of First Capital Bank Holding Corporation's (the "Company")
Articles of Incorporation provide that the Company shall indemnify any director
or officer or any former director or officer against any liability arising from
any action or suit to the full extent permitted by Florida law as referenced
above.
Article VI of the Company's By-Laws provides that the Company shall
indemnify a director, officer, employee or agent who has been successful on the
merits or otherwise in the defense of any action, suit or proceeding to which he
was a party or in defense of any claim, issue or matter therein because he is or
was a director, officer, employee or agent of the Company, against reasonable
expenses incurred by him in connection with such defense.
The Company's By-Laws also provide that the Company is required to
indemnify any director, officer, employee or agent made a party to a proceeding
because he is or was a director, employee or agent against liability incurred in
the proceeding if he acted in a manner he believed in good faith or to be in or
not opposed to the best interests of the Company and, in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful. Determination concerning whether or not the applicable standard of
conduct has been met can be made by (a) a disinterested majority of the Board of
Directors, (b) a majority of a committee of disinterested directors, (c)
independent legal counsel, or (d) an affirmative vote of a majority of shares
held by disinterested shareholders. No indemnification may be made to or on
behalf of a director, officer, employee or agent (i) in connection with a
proceeding by or in the right of the Company in which such person was adjudged
liable to the Company unless the court in which the action, suit or proceeding
was brought, upon application, determines indemnification is fair and
reasonable.
The Company may, if authorized by its shareholders by a majority of
votes which would be entitled to be cast in a vote to amend the Company's
Articles of Incorporation, indemnify or obligate itself to indemnify a director,
officer, employee or agent made a party to a proceeding, including a proceeding
brought by or in the right of the Company.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses expected to be incurred in
connection with the issuance and distribution of the securities being
registered, other than the sales commissions. All of the amounts shown are
estimated except for the registration fees of the Securities and Exchange
Commission and the National Association of Securities Dealers, Inc.
<TABLE>
<S> <C>
SEC Registration Fee........................................... $ 2,780
NASD Filing Fee................................................ $ 1,500
Blue Sky Fees and Expenses..................................... $ 6,000
Printing and Engraving Expenses................................ $ 5,000
Legal Fees and Expenses........................................ $ 35,000
Accounting Fees and Expenses................................... $ 3,500
Advertising.................................................... $ 5,500
Mailing and Distribution....................................... $ 960
Entertainment.................................................. $ 3,500
Miscellaneous.................................................. $ 5,000
----------
Total................................................ $ 68,740
==========
</TABLE>
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
Not applicable.
II-2
<PAGE> 4
ITEM 27. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C>
3.1 Amended and Restated Articles of
Incorporation of the Company.(1)
3.2 Bylaws of the Company.(1)
4.1 Specimen Common Stock Certificate.(1)
4.2 Escrow Agreement by and between the Company
and The Bankers Bank dated December 22,
1998.(1)
5.1 Opinion of Smith, Gambrell & Russell,
LLP.(1)
5.2 Opinion of Smith, Gambrell & Russell, LLP
with respect to the Common Stock Purchase
Warrants and the underlying shares of
Common Stock.
10.1 Real Estate Sales Contract for the proposed
site of the Company at 1875A South 14th
Street, Fernandina Beach, Florida, dated
June 16, 1998.(1)
10.2 Amended and Restated Employment Agreement
between the Organizers of the Company and
Michael G. Sanchez, dated as of September 1,
1998.(1)
10.3 1998 Incentive Stock Option Plan.(1)
10.4 Form of Organizer Warrant Certificate.(1)
23.1 Consent of Smith, Gambrell & Russell, LLP
(contained in their opinion filed as
Exhibit 5.1 hereto).
23.2 Consent of Porter Keadle Moore LLP.(1)
24 Power of Attorney (included in signature
page to this Registration Statement).
27.1 Financial Data Schedule (for SEC use
only).(1)
</TABLE>
- -------------------------------------
(1) Previously filed.
ITEM 28. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration
Statement to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental
change in the information 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
II-3
<PAGE> 5
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, changes in the 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 the
effective registration statement.
(iii) Include any additional or changed material information
on the plan of distribution.
(2) For determining liability under the Securities Act, treat
each post-effective amendment as a new registration of the
securities offered, and the offering of the securities at
the time to be the initial bona fide offering.
(3) File a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the
offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "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 Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
[SIGNATURE PAGE FOLLOWS]
II-4
<PAGE> 6
SIGNATURES
In accordance with 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 of filing on Form SB-2 and authorized this Amendment No. 4
to be signed on its behalf by the undersigned, in the City of Fernandina Beach,
State of Florida on April 7, 1999.
FIRST CAPITAL BANK HOLDING CORPORATION
Date: April 7, 1999 By: /s/ Michael G. Sanchez
-------------------------------------
Michael G. Sanchez
President and Chief Executive Officer
(Principal Executive Officer)
In accordance with the requirements of the Securities Act of 1933, as
amended, this Amendment No. 2 was signed by the following persons in the
capacities and on the dates stated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Director April 7, 1999
- -------------------------------------
Ron Anderson
* Director April 7, 1999
- -------------------------------------
Christina H. Bryan
* Director April 7, 1999
- -------------------------------------
C. Brett Carter
* Chairman of the Board April 7, 1999
- -------------------------------------
Suellen Rodeffer Garner
* Director April 7, 1999
- -------------------------------------
William K. Haley, M.D.
/s/ Lorie L. McCarroll Treasurer and Director April 7, 1999
- ------------------------------------- (Principal Financial and
Lorie L. McCarroll Accounting Officer)
* Director April 7, 1999
- -------------------------------------
David F. Miller
* Director April 7, 1999
- -------------------------------------
William J. Mock, Jr.
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
* Director April 7, 1999
- ----------------------------------------
Marlene J. Murphy
* Secretary and Director April 7, 1999
- ----------------------------------------
Robert L. Peters
* Director April 7, 1999
- ----------------------------------------
Lawrence Piper
/s/ Michael G. Sanchez President, Chief Executive April 7, 1999
- ---------------------------------------- Officer and Director
Michael G. Sanchez
* Director April 7, 1999
- ----------------------------------------
Harry R. Trevett
* Director April 7, 1999
- ----------------------------------------
Edward E. Wilson
* Director April 7, 1999
- ----------------------------------------
Marshall E. Wood
*By: /s/ Michael G. Sanchez
------------------------------------
Michael G. Sanchez
Attorney-in-Fact
</TABLE>
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- --------- -----------------------------------------------------
<S> <C>
3.1 Amended and Restated Articles of Incorporation of the
Company.(1)
3.2 Bylaws of the Company.(1)
4.1 Specimen Common Stock Certificate.(1)
4.2 Escrow Agreement by and between the Company and The
Bankers Bank dated December 22, 1998.(1)
5.1 Opinion of Smith, Gambrell & Russell, LLP.(1)
5.2 Opinion of Smith, Gambrell & Russell, LLP with respect
to the Common Stock Purchase Warrants and the
underlying shares of Common Stock.
10.1 Real Estate Sales Contract for the proposed site of
the Company at 1875A South 14th Street, Fernandina
Beach, Florida, dated June 16, 1998.(1)
10.2 Amended and Restated Employment Agreement between the
Organizers of the Company and Michael G. Sanchez,
dated as of September 1, 1998.(1)
10.3 1998 Incentive Stock Option Plan.(1)
10.4 Form of Organizer Warrant Certificate.(1)
23.1 Consent of Smith, Gambrell & Russell, LLP (contained
in their opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Porter Keadle Moore, LLP.(1)
24 Power of Attorney (included in signature page to this
Registration Statement).
27 Financial Data Schedule (for SEC use only).(1)
</TABLE>
(1) Previously filed.
<PAGE> 1
EXHIBIT 5.2
SMITH, GAMBRELL & RUSSELL, LLP
Attorneys At Law
Telephone Suite 3100, Promenade II Website
(404) 815-3500 1230 Peachtree Street, N.E. www.sgratl.com
Facsimile Atlanta, Georgia 30309-3592
(404) 815-3509 --------------
ESTABLISHED 1893
ROBERT C. SCHWARTZ
Direct Dial: (404) 815-3758
Direct Fax: (404) 685-7058
E-MAIL: [email protected]
April 8, 1999
Board of Directors
First Capital Bank Holding Corporation
1875A South 14th Street
Fernandina Beach, Florida 32034
RE: First Capital Bank Holding Corporation
Registration Statement on Form SB-2
165,000 Common Stock Purchase Warrants and
165,000 Common Shares Issuable Upon Exercise
--------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for First Capital Bank Holding Corporation (the
"Company") in connection with the proposed public offering of shares of the
Company's $.01 par value Common Stock and Common Stock Purchase Warrants covered
by the above-described Registration Statement.
In connection therewith, we have examined the following:
(1) The Articles of Incorporation of the Company, as amended, certified
by the Secretary of State of the State of Florida;
(2) The Bylaws of the Company, certified as complete and correct by the
Secretary of the Company;
(3) The minute book of the Company, certified as correct and complete
by the Secretary of the Company;
<PAGE> 2
Board of Directors
First Capital Bank Holding Corporation
April 7, 1999
Page 2
(4) Certificate of Active Status with respect to the Company, issued
by the Secretary of State of the State of Florida; and
(5) The Registration Statement, including all exhibits thereto.
Based upon such examination and upon examination of such other
instruments and records as we have deemed necessary, we are of the opinion that:
(A) The Company has been duly incorporated and is validly existing
under the laws of the State of Florida.
(B) The 165,000 Common Stock Purchase Warrants covered by the
Registration Statement have been legally authorized and, when
issued in accordance with the terms described in said
Registration Statement, will be validly issued, fully paid and
non-assessable.
(C) The 165,000 shares of Common Stock issuable upon the exercise of
the Common Stock Purchase Warrants covered by the Registration
Statement have been legally authorized and, when issued in
accordance with the terms described in said Common Stock
Purchase Warrants, will be validly issued, fully paid and
non-assessable.
We consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement on Form SB-2 and to the reference to this
firm under the caption "Legal Matters" in the Prospectus. In giving this
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, or
the rules and regulations of the Securities and Exchange Commission thereunder.
Sincerely,
SMITH, GAMBRELL & RUSSELL, LLP
/s/ Robert C. Schwartz
Robert C. Schwartz
RCS:hba[624858]
