FORM 8 - A
AMENDMENT NO. 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO
SECTION 12(b) or (g) of the SECURITIES ACT OF 1934
First National Corporation
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(Exact name of registrant as specified in its charter)
South Carolina 57-0799315
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
950 John C. Calhoun Drive
Orangeburg, South Carolina 29115
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Stock, American Stock Exchange
$5.00 Par Value
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
Authorized Capital. Registrant is authorized to issue 5,000,000 shares
of common stock, $5.00 par value per share, of which shares 2,550,024 were
issued and outstanding as of December 31, 1996. A total of 60,000 additional
shares were reserved as of such date for potential issuance in connection with
certain employee stock option plans. Pursuant to the provisions of the South
Carolina Business Corporation Act of 1988 (the "Business Corporation Act"), any
outstanding shares of capital stock of Registrant reacquired by it would be
considered authorized but unissued shares.
Voting and Other Rights. The holders of Registrant Common Stock are
entitled to one vote per share on each matter voted on at a shareholders'
meeting. A majority of the shares entitled to vote, represented at a meeting in
person or by proxy, constitutes a quorum, and, in general, most routine matters
will be approved if the votes cast in favor of the matter exceed the votes
against the matter. Directors are elected by a plurality of the votes cast by
the shares entitled to vote in the election at a meeting at which a quorum is
present. Each shareholder entitled to vote in such an election shall be entitled
to vote each share of Registrant Common Stock owned by such shareholder for as
many persons as there are directors to be elected. Pursuant to the Articles of
Incorporation of Registrant, shareholders do not have cumulative voting rights.
In general, (i) amendments to Registrant's Articles of Incorporation
must be approved by two-thirds of the votes entitled to be cast, regardless of
voting group, and in addition by two-thirds of the votes entitled to be cast
within each voting group entitled to vote separately thereon; and (ii) the
dissolution of Registrant must be approved by two-thirds of the votes entitled
to be cast thereon.
The Articles of Incorporation of Registrant provide that a merger,
exchange or consolidation of Registrant with, or the sale, exchange or lease of
all or substantially all of the assets of Registrant to, any person or entity
(referred to herein as a "Fundamental Change"), must be approved by the holders
of at least 80% of the outstanding voting stock of Registrant if the Board of
Directors does not recommend a vote in favor of the Fundamental Change. The
Articles of Incorporation further provide that a Fundamental Change involving a
shareholder that owns or controls 20% or more of the voting stock of Registrant
at the time of the proposed transaction (a "Controlling Party") must be approved
by the holders of at least (i) 80% of the outstanding voting stock of
Registrant, and (ii) 67% of the outstanding voting stock of Registrant held by
shareholders other than the Controlling Party, unless (x) the transaction has
been recommended to the shareholders by a majority of the entire Board of
Directors or (y) the consideration per share to be received by the shareholders
of Registrant generally is not less than the highest price per share paid by the
Controlling Party in the acquisition of its holdings of the Registrant Common
Stock during the preceding three years. The approval by the holders of at least
80% of the outstanding voting
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stock of Registrant is required to amend or repeal these provisions contained in
Registrant's Articles of Incorporation. Finally, in the event that any such
Fundamental Change is not recommended by the Board of Directors, the holders of
at least 80% of the outstanding voting stock of Registrant must attend a meeting
called to address such transaction, in person or by proxy, in order for a quorum
for the conduct of business to exist. If the 80% and 67% vote requirements
described above do not apply because the Board of Directors recommends the
transaction or the consideration is deemed fair, as applicable, then pursuant to
the provisions of the Business Corporation Act, the Fundamental Change generally
must be approved by two-thirds of the votes entitled to be cast with respect
thereto.
The Articles of Incorporation of Registrant provide that the
shareholders of Registrant may act to amend or repeal any of Registrant's Bylaws
upon the approval of the holders of at least 80% of the outstanding voting stock
of Registrant. The Bylaws generally may also be amended or repealed upon the
vote of a majority of the Board of Directors; provided, however, that pursuant
to the Business Corporation Act, the shareholders in adopting, amending or
repealing a Bylaw may provide expressly that the Board of Directors may not
adopt, amend or repeal that Bylaw or any Bylaw on that subject.
The shareholders of Registrant shall have dissenters' rights to an
appraisal with respect to their shares of Registrant Common Stock as provided by
the Business Corporation Act in connection with certain types of merger or share
exchange transactions. Dissenters' rights generally are also available with
respect to certain sales of all or substantially all of the property of
Registrant and certain amendments to Registrant's Articles of Incorporation that
materially and adversely affect certain enumerated rights of a dissenter's
shares.
Directors and Classes of Directors. Under Registrant's Articles of
Incorporation and Bylaws and pursuant to the Business Corporation Act, the
number of directors shall consist of a minimum of six and a maximum of 20
persons. This number may be determined from time to time by the shareholders or
the Board of Directors. Accordingly, either the directors or the shareholders of
Registrant have the authority to increase or decrease the number of directors,
which is currently fixed at 20, within this maximum. Only the shareholders of
Registrant, however, have the right to change the range for the size of the
Board, by amendment to Registrant's Articles of Incorporation.
The Board of Directors of Registrant is divided into three classes so
that each director serves for a term ending on the date of the third annual
meeting following the annual meeting at which such director was elected. In the
event of any increase in the authorized number of directors, the newly created
directorships resulting from such increase shall be apportioned among the three
classes of directors so as to maintain such classes as nearly equal
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as possible. Because of the classification of directors, unless the shareholders
act under the Business Corporation Act to remove directors from office, two
annual meetings generally would be required to elect a majority of the Board of
Directors and three, rather than one, would be required to replace the entire
board. The provisions of the Articles of Incorporation providing for the
classified Board of Directors can be amended or repealed only upon the
affirmative vote of the holders of at least 80% of the outstanding voting stock
of Registrant.
The Articles of Incorporation provide that a director may be removed
with or without cause by the affirmative vote of at least 80% of the outstanding
voting stock.
Consideration of Non-Shareholder Interests. The Articles of
Incorporation of Registrant provide that, when evaluating any proposed plan of
merger, consolidation, exchange or sale of all, or substantially all, of the
assets of Registrant, the Board of Directors shall consider the interests of the
employees of Registrant and the community or communities in which Registrant and
its subsidiaries, if any, do business in addition to the interest of
Registrant's shareholders.
Anti-Takeover Aspects of Certain Provisions. The provisions of
Registrant's Articles of Incorporation regarding the staggered Board of
Directors and Fundamental Change vote requirements as well as the other high
vote requirements, and provisions regarding consideration of non-shareholder
interests with respect to certain types of transactions may have certain
anti-takeover effects with respect to Registrant, and may be deemed to present
an impediment to a change in control of Registrant even if such a change were
favored by a majority of the shareholders. Such provisions could make Registrant
a less attractive target for a hostile takeover bid or render more difficult or
discourage a merger proposal, the assumption of control through the acquisition
of a large block of Registrant Common Stock or the removal of incumbent
management. Such provisions may inhibit or impede fluctuations in the market
price of the Registrant Common Stock, which might otherwise result from actual
or potential takeover attempts.
Liquidation Rights. In the event of liquidation, the holders of
Registrant Common Stock would be entitled to receive pro rata any assets legally
available for distribution to shareholders with respect to shares held by them.
Preemptive and Other Rights. The Registrant Common Stock does not have
any preemptive rights, redemption privileges, sinking fund privileges or
conversion rights. All the outstanding shares of Registrant Common Stock are
validly issued, fully paid and nonassessable.
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Distributions. Registrant may issue share dividends in Registrant
Common Stock to the holders of shares of Registrant Common Stock. In addition,
the holders of shares of Registrant Common Stock will be entitled to receive
such other distributions as the Board of Directors of Registrant may declare,
subject to any restrictions contained in Registrant's Articles of Incorporation
(of which there currently are none), unless after giving effect to such
distribution, (i) Registrant would not be able to pay its debts as they become
due in the usual course of business or (ii) Registrant's total assets would be
less than the sum of Registrant's total liabilities plus the amount that would
be needed, if Registrant were to be dissolved at the time of the distribution,
to satisfy claims of shareholders who have preferential rights superior to the
rights of holders of Registrant Common Stock.
Although Registrant is not subject to the restrictions on dividends
applicable to national banks, the ability of Registrant to make distributions to
holders of Registrant Common Stock is dependent to a large extent upon the
ability of its subsidiary banks, First National Bank and the National Bank of
York County, to pay dividends. The ability of the Banks, as well as of
Registrant, to pay dividends in the future may also be affected by the various
minimum capital requirements.
Indemnification of Officers and Directors. Registrant's Bylaws provide
that Registrant shall advance expenses to and indemnify its current or former
directors, officers, agents or employees to the full extent and in the manner
permitted or required by the Business Corporation Act. Sections 33-8-500 through
33-8-580 of the Business Corporation Act contain provisions prescribing the
extent to which directors and officers shall or may be indemnified. Section
33-8-510 permits a corporation, with certain exceptions, to indemnify a current
or former director against liability if (i) he conducted himself in good faith,
(ii) he reasonably believed (x) that his conduct in his official capacity with
the corporation was in its best interest and (y) his conduct in other capacities
was at least not opposed to the corporation's best interest, and (iii) in the
case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. A corporation may not indemnify a current or former
director in connection with a proceeding by or in the right of the corporation
in which he was adjudged liable to the corporation or in connection with a
proceeding charging improper personal benefit to him. The above standard of
conduct is determined by the Board of Directors or a committee thereof or
special legal counsel or the shareholders as prescribed in Section 33-8-550.
Sections 33-8-520 and 33-8-560 require a corporation to indemnify a
director or officer in the defense of any proceeding to which such person was a
party because of his or her capacity as officer or director against reasonable
expenses when such person is wholly successful in his or her defense, unless the
Articles of Incorporation provide otherwise. Upon application, the court may
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order indemnification of the director or officer if such person is adjudged
fairly and reasonably so entitled under Section 33-8-540. Section 33-8-560
allows a corporation to indemnify and advance expenses to an officer, employee
or agent who is not a director to the same extent as a director or as otherwise
set forth in the corporation's Articles of Incorporation or Bylaws or by
resolution of the Board of Directors or by contract.
Limitation of Director Liability. The Articles of Incorporation of
Registrant provide that no director of Registrant shall be personally liable to
Registrant or its shareholders for monetary damages for breach of such
director's fiduciary duty as a director except for (i) any breach of the
director's duty of loyalty to Registrant or its shareholders; (ii) acts or
omissions not in good faith or that involve gross negligence, intentional
misconduct or a knowing violation of law; (iii) certain unlawful distributions;
and (iv) any transaction from which such director derived an improper personal
benefit.
Statutory Matters.
Business Combination Statute. The South Carolina business combinations
statute provides that a 10% or greater shareholder of a resident domestic
corporation cannot engage in a "business combination" (as defined in the
statute) with such corporation for a period of two years following the date on
which the 10% shareholder became such, unless the business combination or the
acquisition of shares is approved by a majority of the disinterested members of
such corporation's board of directors before the 10% shareholder's share
acquisition date. This statute further provides that at no time (even after the
two-year period subsequent to such share acquisition date) may the 10%
shareholder engage in a business combination with the relevant corporation
unless certain approvals of the board of directors or disinterested shareholders
are obtained or unless the consideration given in the combination meets certain
minimum standards set forth in the statute. The law is very broad in its scope
and is designed to inhibit unfriendly acquisitions but it does not apply to
corporations whose articles of incorporation contain a provision electing not to
be covered by the law. Registrant's articles of incorporation do not contain
such a provision. An amendment of the articles of incorporation to that effect
will, however, permit a business combination with an interested shareholder even
though that status was obtained prior to the amendment.
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Control Share Acquisitions. South Carolina law also contains provisions
that, under certain circumstances, would preclude an acquiror of the shares of a
South Carolina corporation who crosses one of three voting thresholds (20%,
331/3% or 50%) from obtaining voting rights with respect to such shares unless a
majority in interest of the disinterested shareholders of the corporation votes
to accord voting power to such shares.
The legislation provides that, if authorized by the articles of
incorporation or bylaws prior to the occurrence of a control share acquisition,
the corporation may redeem the control shares for their fair value if the
acquiring person has not complied with certain procedural requirements
(including the filing of an "acquiring person statement" with the corporation
within 60 days after the control share acquisition) or if the control shares are
not accorded full voting rights by the shareholders. Registrant is not
authorized by its articles or bylaws to redeem control shares pursuant to such
legislation.
Item 2. Exhibits
The following exhibits required by Instruction II to Item 2
will be supplied to the American Stock Exchange.
1. Registrant's Annual Report on Form 10-K, as amended,
for the year ended December 31, 1995.
2. Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and
September 30, 1996.
3. Registrant's definitive Proxy Statement, dated April 2,
1996.
4. Registrant's Articles of Incorporation and Bylaws.
5. Specimen of Registrant's Common Stock certificate.
6. Registrant's 1995 Annual Report to Shareholders.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Amendment No. 1 to registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
First National Corporation
By: /s/W. Louis Griffith
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W. Louis Griffith
Senior Vice President and
Chief Financial Officer
Date:
January 21, 1997
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