As filed with the Securities and Exchange Commission on
September 3, 1999
Registration No. 33-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CITIZENS BANCSHARES CORPORATION
(Exact name of Registrant as specified in its charter)
Georgia 58-2232785
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
75 Piedmont Avenue, N.E., Atlanta, Georgia 30302
(Address of principal executive offices and zip code)
CITIZENS BANCSHARES CORPORATION
EMPLOYEE STOCK PURCHASE 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
- -----------------------------------------------------------------
Proposed Proposed
Title of Amount to Maximum Maximum Amount of
Securities be Offering Aggregate Registration
to be Registered Price Offering Fee
Registered Per Share Price
- ------------------------------------------------------------------
Common
Stock, 324,610 $9.25 (2) $3,002,643 $835.00
$1.00 par shares (1) (3)
value
- ------------------------------------------------------------------
(1) Representing shares to be issued and sold by the
Registrant under the Citizens Bancshares Corporation Employee
Stock Purchase 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 Over the Counter
Bulletin Board for September 1, 1999.
(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.
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 employees of the Registrant
as required by Rule 428(b)(1) promulgated under the Securities
Act of 1933, as amended (the "Securities Act").
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, 1998;
(2) The Registrant's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1998;
(3) The Registrant's Quarterly Report on Form 10-QSB for
the quarter ended March 31, 1999; and
(4) The Registrant's Quarterly Report on Form 10-QSB for
the quarter ended June 30, 1999;
(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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Article VII of the Registrant's Bylaws provides that the
Registrant shall indemnify a director who has been successful
in the defense of any proceeding to which he was a party or in
defense of any claim, issue or matter therein because he is or
was a director of the Registrant, against reasonable expenses
incurred by him in connection with such defense.
The Registrant's Bylaws also provide that the Registrant
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 Registrant
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 stockholders. 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
Registrant in which such person was adjudged liable to the
Registrant or (ii) in connection with any other proceeding in
which such person was adjudged liable on the basis that
personal benefit was improperly received by him.
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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Item 8. Exhibits.
The following exhibits are filed with or incorporated by
reference into this Registration Statement pursuant to Item 601
of Regulation S-B:
Exhibit Description
No.
4.1 Articles of Incorporation of the
Registrant (incorporated herein by
reference to Exhibit 3.1 to the
Registrant's Form 10-K for the year ended
December 31, 1987 as filed with the
Securities and Exchange Commission.
4.2 Bylaws of the Registrant (incorporated
herein by reference to Exhibit 3.2 to the
Registrant's Registration Statement on
Form 10 as filed with the Securities and
Exchange Commission (File. No. 0-14535).
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 Deloitte & Touche, LLP
23.3 Consent of Porter Keadle Moore, LLP
23.4 Consent of Banks, Finley, White & Co.
24 Power of Attorney (see signature pages to
this Registration Statement).
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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(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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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 Atlanta, State of
Georgia, on September 3, 1999.
CITIZENS BANCSHARES CORPORATION
By: /s/ James E. Young
James E. Young
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints James E. Young
and Samuel J. Cox, 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 September 3,
1999.
Signature Title
---------------------- ----------------------------------
/s/ Herman J. Russell Chairman of the Board and Director
Herman J. Russell
/s/ Gregory T. Baranco Director
Gregory T. Baranco
/s/ Bernard H. Bronner Director
Bernard H. Bronner
/s/ Thomas E. Boland Director
Thomas E. Boland
/s/ Johnnie L. Clark Director
Johnnie L. Clark
/s/ James E. Young President, Chief Executive Officer and Director
James E. Young (Principal Executive Officer)
/s/ Samuel J. Cox Senior Vice President and Assistant Treasurer
Samuel J. Cox (Principal Financial and Accounting Officer)
EXHIBIT INDEX
Exhibit Description Sequential
No. Page No.
4.1 Articles of Incorporation of the
Registrant (incorporated herein by
reference to Exhibit 3.1 to the
Registrant's Form 10-K for the year
ended December 31, 1987 as filed with
the Securities and Exchange
Commission.
4.2 Bylaws of the Registrant
(incorporated herein by reference to
Exhibit 3.2 to the Registrant's
Registration Statement on Form 10 as
filed with the Securities and
Exchange Commission (File.
No. 0-14535).
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 Deloitte & Touche, LLP
23.3 Consent of Porter Keadle Moore, LLP
23.4 Consent of Banks, Finley, White & Co.
24 Power of Attorney (see signature
pages to this Registration
Statement).
Exhibit 5
September 2, 1999
Citizens Bancshares Corporation
75 Piedmont Avenue, N.E.
Atlanta, Georgia 30202
Re: Registration Statement on Form S-8
Citizens Bancshares Corporation
Citizens Bancshares Corporation Employee Stock
Purchase Plan
Ladies and Gentlemen:
We have served as counsel for Citizens Bancshares
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 324,610
shares (the "Shares") of common stock, $1.00 par value, of the
Company, to be offered and sold by the Company pursuant to the
Citizens Bancshares Corporation Employee Stock Purchase 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.
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,
/s/ Powell, Goldstein, Frazer & Murphy
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Citizens Bancshares Corporation on
Form S-8 of our report dated March 25, 1999, appearing in the
Annual Report on Form 10-KSB of Citizens Bancshares Corporation
for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
Atlanta Georgia
September 1, 1999
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
We have issued our report dated November 23, 1998, accompanying
the consolidated financial statements of Citizens Bancshares
Corporation and subsidiary appearing in the 1997 Annual Report
of the Company to its shareholders included in the Annual
Report on Form 10-KSB for the year ended December 31, 1997
which is incorporated by reference in this Form S-8
Registration Statement. We consent to the incorporation by
reference in this Form S-8 Registration Statement of the
aforementioned report and to the use of our name as it appears
under the caption "Expert."
/s/ PORTER KEADLE MOORE, LLP
Atlanta, Georgia
September 3, 1999
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Citizens Bancshares Corporation on
Form S-8 of our report on the consolidated financial statements
of First Southern Bancshares and subsidiaries as of and for the
two years ended December 31, 1997 dated February 6, 1998,
appearing in the Annual Report on Form 10-KSB of Citizens
Bancshares Corporation for the year ended December 31, 1998.
/s/ BANKS, FINLEY, WHITE & CO.
Atlanta Georgia
September 3, 1999
