<PAGE> 1
As filed with the Securities and Exchange Commission on January 23, 1996
Registration No. 33-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
FIRST LIBERTY FINANCIAL CORP.
(Exact Name of Registrant as Specified in Its Charter)
GEORGIA 58-1680650
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
201 SECOND STREET, MACON, GEORGIA 31297
(Address of Principal Executive Offices, including Zip Code)
FIRST LIBERTY FINANCIAL CORP. NONQUALIFIED DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
________________
RICHARD A. HILLS, JR. COPY TO:
EXECUTIVE VICE PRESIDENT
AND GENERAL COUNSEL WILLIAM L. FLOYD, ESQ.
FIRST LIBERTY FINANCIAL CORP. LONG, ALDRIDGE & NORMAN
6491 PEACHTREE INDUSTRIAL BLVD. SUNTRUST PLAZA, SUITE 5300
ATLANTA, GEORGIA 30360 303 PEACHTREE STREET
(Name and Address of Agent For Service) ATLANTA, GEORGIA 30308
(770) 936-3252 (404) 527-4010
(Telephone Number, Including Area Code,
of Agent For Service)
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
==============================================================================================================
Deferred
Compensation
Obligations (1) $2,000,000 (2) 100% $2,000,000 (2) $690.00
==============================================================================================================
Common Stock,
$1.00 par value
per share 68,965 Shares (3) $21.375 (4) $1,474,127 (4) $510.00 (4)
==============================================================================================================
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of
First Liberty Financial Corp. to pay deferred compensation in the
future in accordance with the terms of the First Liberty Financial
Corp. Nonqualified Deferred Compensation Plan (the "Plan").
(2) Estimated solely for the purpose of determining the registration fee.
(3) The shares of Common Stock registered hereby represent the estimated
number of shares which may be distributed by the Trust to participants
in the Plan (the "Participants") in accordance with the terms of the
Plan over the next five years. An undetermined number of additional
shares may be issued, or the shares registered hereunder may be
combined into an undetermined lesser number of shares, if the
outstanding shares of the Common Stock of the Company are increased or
decreased by reason of a recapitalization, reclassification, stock
split, combination of shares or dividend payable in Common Stock of
the Company.
(4) The calculation of the registration fee is based on the anticipated
number of shares of Common Stock which the Trust may distribute to
Participants in accordance with the terms of the Plan over the next
five years. The offering prices for such shares which may be
distributed by the Trust in the future are not presently determinable.
The offering prices for such shares are estimated pursuant to Rule
457(c) solely for the purpose of calculating the registration fee and
are based upon the average of the high and low prices of the
Registrant's Common Stock on January 19, 1996 as reported in the
consolidated reporting system.
ii
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees and directors as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"). These documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by First Liberty Financial
Corp. (the "Company" or the "Registrant") with the Securities and Exchange
Commission (the "Commission") hereby are incorporated herein by reference as of
their respective dates:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1995;
(2) The Company's Current Report on Form 8-K dated January 19,
1996; and
(3) The description of the Company's Common Stock as contained in
Item 1 of the Company's Registration Statement on Form 8-A (Registration No.
0-14417) as filed with the Commission on May 5, 1986.
In addition, all reports and documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, will be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The Plan allows Participants to submit elections to defer
compensation, including elections as to the amount to be deferred and the
timing and manner of distribution, before the start of the Plan year in which
the compensation will be earned (or if later, before the first day of the
calendar quarter coinciding with or next following the date the Participant
first becomes eligible to participate in the Plan).
The amount of compensation deferred by each Participant (the "Deferral
Amount") represents an unsecured general obligation of the Registrant to pay
deferred compensation (plus any net investment earnings attributable thereto)
in the future in accordance with the terms of the Plan and the Trust Agreement
between the Registrant and SunTrust Bank, Atlanta as trustee (the "Trustee")
dated as of December 30, 1994 (the "Trust Agreement") thereunder. In the event
of the insolvency of the Registrant, the trust fund established under the Trust
Agreement (the "Trust") shall be subject to the claims of the general creditors
of the Registrant. In such event, all Participants and beneficiaries shall
constitute unsecured general creditors of the Registrant with respect to
amounts otherwise payable thereunder and shall have no special or priority
claim with respect to the assets held in the Trust.
The Deferral Amount is determined in accordance with the Plan based on
the Participant's elections. Subject to the provisions of the Plan relating to
insolvency and to the terms of any elections made by a Participant, the
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<PAGE> 4
Deferral Amounts (plus any net investment earnings attributable thereto) will
be payable as soon as practicable after the Participant terminates employment
with or ceases to be a director of the Registrant and all of its affiliates.
Under the Plan, certain Participants may elect to have their Deferral
Amounts deemed to be invested in one or more investment funds available under
the Plan. The Plan also permits (and in some cases requires) Participants'
Deferral Amounts to be deemed to be invested in First Liberty Financial Corp.
Common Stock, $1.00 par value ("FLFC Common Stock"). Each Participant under
the Plan will have a separate Account (as such term is defined in the Plan),
and each Participant's Account will be valued separately. Any earnings and
realized and unrealized gains attributable to a Participant's Account shall be
credited to such Account on a segregated basis, and any amounts distributed
from, any realized losses incurred by, and any expenses and fees properly
chargeable to, a Participant's Account shall be charged against such Account on
a segregated basis.
Except as set forth in the Plan, or as otherwise provided by
applicable law, the interest of any person in the Plan, in the Trust, or in any
distribution to be made under the Plan may not be assigned, pledged, alienated,
anticipated, or otherwise encumbered (either at law or in equity) and shall not
be subject to attachment, bankruptcy, garnishment, levy, execution or other
legal or equitable process. Each Participant in the Plan has the right to
designate a beneficiary (the "Beneficiary") to receive the balance, if any, of
the Participant's Account at the time of the Participant's death and shall have
the right at any time to revoke such designation or to substitute another such
Beneficiary.
The Registrant's Board of Directors and/or the committee appointed by
the Board to administer the Plan (the "Committee") has the right to amend or
terminate the Plan at any time and for any reason, provided, however, that no
amendment or termination of the Plan shall reduce any Participant's rights or
benefits accrued under the Plan before the date the amendment is adopted or the
Plan is terminated, as appropriate, including the Participant's or
Beneficiary's right to payment of the balance of his Account as of such date.
SunTrust Bank, Atlanta has been appointed as Trustee pursuant to the
Trust Agreement to take action with respect to amounts deferred under the Plan.
Pursuant to the Trust Agreement, the Trustee shall be directed by the Committee
with respect to the investment of Trust assets in accordance with the
investment decisions of the Participants (and, if applicable, Beneficiaries),
and the Trustee will follow such directions. Under the Plan, the Deferral
Amounts may be payable in FLFC Common Stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Richard A. Hills, Jr., Esq. is Executive Vice President and General
Counsel of First Liberty Financial Corp. Mr. Hills owns FLFC Common Stock and
options to acquire FLFC Common Stock, the aggregate fair market value of which
is in excess of $50,000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14-2-202(b)(4) of the Georgia Business Corporation Code (the
"Georgia Code") provides that a corporation's articles of incorporation may
include a provision that eliminates or limits the personal liability of
directors for monetary damages to a corporation or its shareholders for breach
of their fiduciary duties as directors. The Section does not, however,
authorize a corporation to eliminate or limit the liability of a director for
appropriating, in violation of his duties, any business opportunity of a
corporation, engaging in intentional misconduct or a knowing violation of law,
obtaining an improper personal benefit, or authorizing a dividend, stock
repurchase or redemption, distribution of assets or other distribution in
violation of Section 14-2-640 of the Georgia Code or the articles of
incorporation of a corporation. Section 14-2-202(b)(4) also does not eliminate
or limit the right of a corporation or any shareholder to seek an injunction, a
rescission or any other equitable (non-monetary) relief in the event of a
breach of a director's fiduciary duty. In addition, Section 14-2-202(b)(4)
applies only to claims against a director arising out of his role as a director
and does not relieve a director from liability arising from his role as an
officer or in any other capacity.
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<PAGE> 5
Sections 14-2-850 to 14-2-859, inclusive, of the Georgia Code govern
the indemnification of directors and officers. Section 14-2-851 of the Georgia
Code provides for indemnification of directors of a corporation for liability
incurred by them in connection with any civil, criminal, administrative or
investigative action, suit or proceeding (other than actions brought as
derivative actions by or in the right of a corporation) in which they may
become involved by reason of being a director of a corporation. Section
14-2-851 also provides such indemnity for directors who, at the request of a
corporation, act as directors, officers, partners, trustees, employees or
agents of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or another enterprise. The Section permits
indemnification if the director acted in a manner which he believed in good
faith to be in or not opposed to the best interest of a corporation and, in
addition, in criminal actions, if he had no reasonable cause to believe his
conduct to be unlawful. If the required standard of conduct is met,
indemnification may include judgments, settlements, penalties, fines or
reasonable expenses (including attorneys' fees) incurred with respect to a
proceeding. However, if the director is adjudged liable to a corporation in a
derivative action or on the basis that personal benefit was improperly
received, the director will only be entitled to such indemnification for
reasonable expenses as a court finds to be proper in accordance with the
provisions of Section 14-2-854.
Section 14-2-852 of the Georgia Code provides that directors who are
successful with respect to any claim against them are entitled to
indemnification against reasonable expenses as of right. On the other hand, if
the charges made in any action are sustained, the determination of whether the
required standard of conduct has been met will be made, in accordance with the
provisions of Georgia Code Section 14-2-855, by either the Board of Directors
or a committee thereof, acting by disinterested members, by special legal
counsel or by the shareholders, but shares owned by or voted under the control
of directors seeking indemnification may not be voted.
Section 14-2-857 of the Georgia Code provides that an officer of a
corporation (but not an employee or agent generally) who is not a director has
the mandatory right of indemnification granted to directors under Section
14-2-852 as described above. In addition, a corporation may indemnify and
advance expenses to an officer, employee or agent who is not a director to the
extent authorized by its articles of incorporation, bylaws, the Board of
Directors or by contract and to the extent such action is not inconsistent with
public policy.
The provisions of Section 11 of the Company's Amended Articles of
Incorporation and Article VIII of the Company's Bylaws, as amended (the
"Bylaws"), are similar in all substantive respects to those contained in
Section 14-2-202(b)(4) and in Sections 14-2-850 to 14-2-859, inclusive, of the
Georgia Code outlined above.
Officers and directors of the Company presently are covered by
insurance which (with certain exceptions and within certain limitations)
indemnifies them against any losses or liabilities arising from any alleged
"wrongful act" including any alleged breach of duty, neglect, error,
misstatement, misleading statement, omissions or other act done or wrongfully
attempted. The cost of such insurance is borne by the Company as permitted by
the Bylaws of the Company and the laws of the State of Georgia.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-3
<PAGE> 6
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
5 Opinion of Richard A. Hills, Jr., Esq.
23.1 Consent of Richard A. Hills, Jr., Esq. (filed as part of Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney
</TABLE>
ITEM 9. UNDERTAKINGS.
A. RULE 415 OFFERING.
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 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.
(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. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
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 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. INDEMNIFICATION OF OFFICERS, DIRECTORS AND CONTROLLING PERSONS.
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 provisions described under Item 6 above, 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 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> 7
SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Macon, State of Georgia,
on January 19, 1996.
FIRST LIBERTY FINANCIAL CORP.
By: /s/ Robert F. Hatcher
------------------------------------
Robert F. Hatcher
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on January 19, 1996.
<TABLE>
<CAPTION>
Signature
---------
Title
-----
<S> <C>
Thomas H. McCook* Chairman of the Board and
- --------------------- Director
Thomas H. McCook
/s/ Robert F. Hatcher President and Chief Executive Officer
- ------------------------- (Principal Executive Officer) and Director
Robert F. Hatcher
F. Don Bradford* Director
- -------------------------
F. Don Bradford
Richard W. Carpenter* Director
- -----------------------
Richard W. Carpenter
C. Lee Ellis* Director
- -----------------------------
C. Lee Ellis
Melvin I. Kruger* Director
- -------------------------
Melvin I. Kruger
Jo Slade Wilbanks* Director
- -------------------------
Jo Slade Wilbanks
David L. Hall* Executive Vice President and Chief
- ---------------------------- Financial Officer (Principal Financial
David L. Hall Officer and Principal Accounting Officer)
*By: /s/ Richard A. Hills, Jr.
-------------------------
Richard A. Hills, Jr.,
As Attorney-in-Fact
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<S> <C>
5 Opinion of Richard A. Hills, Jr., Esq.
23.1 Consent of Richard A. Hills, Jr., Esq. (filed as part of Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney
</TABLE>
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<PAGE> 1
Exhibit 5
[LETTERHEAD]
January 22, 1996
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of First Liberty
Financial Corp., a Georgia corporation (the "Company"), and have acted as
counsel to the Company in connection with the Registration Statement on Form
S-8 (the "Registration Statement ") which the Company proposes to file with the
Securities and Exchange Commission on January 23, 1996 for the purpose of
registering under the Securities Act of 1933, as amended, $2,000,000 of
Deferred Compensation Obligations, which represent unsecured obligations of the
Company to pay deferred compensation in the future in accordance with the terms
of the First Liberty Financial Corp. Nonqualified Deferred Compensation Plan
(the "Plan").
In rendering this opinion, I have examined such records, documents and
instruments of the Company as I have deemed appropriate, including its Articles
of Incorporation, its Bylaws, the minutes of the meetings of its Board of
Directors, the Registration Statement, and the Plan.
This opinion is limited to the laws of the State of Georgia, and I
disclaim any opinions as to the laws of any other jurisdiction. I further
disclaim any opinions as to any other statute, jurisdiction or any regional or
local governmental body or as to any related judicial or administrative
opinion.
Based upon the foregoing and my examination of such questions of law
as I have deemed necessary or appropriate for the purpose of this opinion, it
is my opinion that, when issued by the Company in the manner provided in the
Plan, the Deferred Compensation Obligations will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject, as to enforcement, (i) to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other laws of general applicability
relating to or affecting creditor's rights, and (iii) to general principles of
equity, whether such enforcement is considered in a proceeding in equity or at
law.
This opinion is rendered to you in connection with the issuance of the
Deferred Compensation Obligations and is solely for your benefit. This opinion
may not be relied upon by you for any other purpose, or relied upon by any
other person, firm, corporation or other entity for any other purpose, without
my prior written consent. I disclaim any obligation to advise you of any
change of law that occurs, or any facts of which I become aware, after the date
of this opinion.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Yours very truly,
/s/ Richard A. Hills, Jr.
-------------------------
Richard A. Hills, Jr.
Executive Vice President
and General Counsel
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANT
We consent to the incorporation by reference in the registration statement of
First Liberty Financial Corp. and Subsidiaries on Form S-8 (File No. 33- )
of our report, which includes an explanatory paragraph concerning a change in
the method of accounting for investments in 1993, dated November 9, 1995, on
our audits of the consolidated financial statements of First Liberty Financial
Corp. and Subsidiaries as of September 30, 1995 and 1994 and for the years
ended September 30, 1995, 1994 and 1993, which report is included in the
Company's Annual Report on Form 10-K for the year ended September 30, 1995.
Coopers & Lybrand L.L.P.
Atlanta, Georgia
January 22, 1996
<PAGE> 1
Exhibit 24
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints Robert F. Hatcher, David L. Hall and Richard A. Hills, Jr., and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign a Registration Statement on Form S-8 under the provisions
of the Securities Act of 1933, as amended, for the registration of shares of
Common Stock of First Liberty Financial Corp., and to sign any and all
amendments thereto, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
This 18th day of January, 1996.
/s/ Thomas H. McCook
- ------------------------
Thomas H. McCook
/s/ F. Don Bradford
- ------------------------
F. Don Bradford
/s/ Richard W. Carpenter
- ------------------------
Richard W. Carpenter
/s/ C. Lee Ellis
- ------------------------
C. Lee Ellis
/s/ Melvin I. Kruger
- ------------------------
Melvin I. Kruger
/s/ Jo Slade Wilbanks
- ------------------------
Jo Slade Wilbanks
/s/ David L. Hall
- ------------------------
David L. Hall
