<PAGE>
As filed with the Securities and Exchange Commission on November 27, 1996.
Registration No. 333-__________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
___________________________
FIRST CHEROKEE BANCSHARES, INC.
-------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
GEORGIA 58-1807887
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
9860 HIGHWAY 92
P.O. BOX 1238
WOODSTOCK, GEORGIA 30188
(770) 591-9000
---------------------------
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
CARL C. HAMES, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
FIRST CHEROKEE BANCSHARES, INC.
P.O. BOX 1238
WOODSTOCK, GEORGIA 30188
(770) 591-9000
---------------------------
(Name, address, including
zip code, and telephone
number, including area code,
of agent for service)
___________________________
COPIES OF COMMUNICATIONS TO:
KATHRYN L. KNUDSON, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY
SIXTEENTH FLOOR
191 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303
(404) 572-6952
<PAGE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the Registration Statement becomes effective.
___________________________
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
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 of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, 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, please 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
___________________________
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Title of Proposed Proposed
each class maximum maximum Amount
of securi- Amount offering aggregate of
ties to be to be price per offering registration
registered registered(1) share(2) price(2) fee(2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$1.00 par
value 196,350 shares $16.00 $3,141,600 $952.00
- --------------------------------------------------------------------------------
</TABLE>
(1) The number of shares being registered consists of 196,350 shares of Common
Stock to be issued upon exercise of warrants outstanding. The Registration
Statement also covers such 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 warrants. The Registrant will deregister any shares underlying warrants
that remain unissued after November 27, 1999, the expiration date of the
warrants.
(2) Because the exercise price of the warrants is lower than the current market
value of the Common Stock, the registration fee has been calculated based
upon the average of the high and low prices of the Registrant's Common
Stock on November 20, 1996, as reported on the NASD electronic bulletin
board market.
_________________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
<PAGE>
PROSPECTUS
FIRST CHEROKEE BANCSHARES, INC.
196,350 Shares of Common Stock Underlying Warrants
This Prospectus relates to 196,350 shares (the "Shares") of common stock,
$1.00 par value ("Common Stock"), First Cherokee Bancshares, Inc. (the
"Company") underlying certain warrants ("Warrants") issued by the Company.
The Shares may be offered by certain shareholders of the Company (the
"Selling Shareholders") from time to time in transactions in the
over-the-counter market, in negotiated transactions or a combination of such
methods of sale, at fixed prices which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Selling Shareholders may effect such
transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions
or commissions from the Selling Shareholders and/or the purchasers of the
Shares for whom such broker-dealers may act as agents or to whom they sell as
principals, or both (which compensation as to a particular broker-dealer
might be in excess of customary commissions). See "Selling Shareholders" and
"Sale of the Shares."
The Selling Shareholders acquired their Warrants in connection with the
formation of the Company and its wholly-owned bank subsidiary, the First
National Bank of Cherokee (the "Bank"), on November 27, 1989. See "Selling
Shareholders." The Selling Shareholders may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"). See "Sale of the Shares."
The Company has agreed to bear all expenses (other than selling
commissions and fees) in connection with the registration and sale of the
Shares being offered by the Selling Shareholders.
Investment in the Shares involves certain risks. See "Risk Factors."
The shares of Common Stock of the Company are traded on the NASD
electronic bulletin board market. On November 20, 1996, the last sale price
for the shares of Common Stock was $15.37 per share.
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_________________________
The date of this Prospectus is December __, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information and reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information may be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549. Copies of such material can
be obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
also maintains a Web site (http://www.sec.gov) that contains reports, proxy
and information statements and other information regarding registrants, such
as the Company, that file electronically with the Commission.
This Prospectus does not contain all information set forth in the
Registration Statement of which this Prospectus forms a part; certain parts
of the Registration Statement are omitted in accordance with the rules and
regulations of the Commission. The Registration Statement and any amendments
thereto, including exhibits filed as a part thereof, are available for
inspection and copying as set forth above.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Commission by the Company (File
Number 0-18488) are hereby incorporated by reference into this Prospectus:
(1) Annual Report on Form 10-KSB for the fiscal year ended December 31,
1995.
(2) Quarterly Reports on Form 10-QSB for the fiscal quarters ended March
31, June 30 and September 30, 1996.
(3) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act, and any amendment or report filed for the purpose of updating
such description.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, including any beneficial owner, upon the
written or oral request of such person, a copy of any or all of the documents
incorporated by reference herein (other than exhibits to such documents,
unless such exhibits are specifically incorporated by reference into the
information that the Prospectus incorporates). Requests should be directed
to:
-2-
<PAGE>
Kitty A. Kendrick
Senior Vice President
First Cherokee Bancshares, Inc.
9860 Highway 92
Woodstock, Georgia 30188
Telephone No. (770) 591-9000
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering registered
hereby shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained herein (or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus. All information
appearing in this Prospectus is qualified in its entirety by information and
financial statements (including notes thereto) appearing in the documents
incorporated by reference herein, except to the extent set forth in the
immediately preceding statement.
RISK FACTORS
RESTRICTIONS ON DIVIDENDS
Dividends are payable on Common Stock only when, as and if declared by
the Company's Board of Directors from funds available therefor. The
principal source of the Company's income is dividends and other payments by
its subsidiaries, including the Bank. The Bank is subject to statutory and
regulatory restrictions on the payment of dividends and must maintain
adequate capital, which reduces the amount available for dividends. The
Company must also maintain adequate capital.
COMPETITION
The Bank operates in highly competitive markets with other banks and
financial institutions, many of which have greater financial and other
resources than are available to the Bank and its parent company. The Bank
competes with financial institutions affiliated with much larger institutions
operating on a statewide and regional basis. The Company's long term success
will depend on the ability of the Bank to compete successfully in its service
area.
-3-
<PAGE>
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Shareholders. On exercise of the Warrants by the
Selling Shareholders, the Company will receive the exercise price for the
Shares, an aggregate of $1,785,000 if all of the Warrants are exercised, or
approximately $9.09 per Share at the present time. The Company will use the
proceeds from the exercise of the Warrants to contribute to the capital of
the Bank to support its growth, as necessary, and for other general corporate
purposes.
SELLING SHAREHOLDERS
The following tables set forth (a) the name of each of the Selling
Shareholders, (b) the number of shares of Common Stock beneficially owned by
each Selling Shareholder prior to the offering and being offered hereby, (c)
the number of shares of Common Stock that will be beneficially owned by each
Selling Shareholder upon completion of the offering, and (d) the percentage
of the Company's outstanding shares of Common Stock as of November 25, 1996
that will be beneficially owned by each Selling Shareholder upon completion
of the offering (assuming that all of the Warrants are exercised, all of the
Shares being offered hereby are sold and that no other changes in the Selling
Shareholders' beneficial ownership occurs prior to completion of this
offering).
The following table relates to the Warrants and the underlying Shares of
Common Stock being registered for resale pursuant to the Registration
Statement.
<TABLE>
<CAPTION>
Common Stock Beneficially Owned
-----------------------------------------------------
Upon Percentage
Completion Owned Upon
Selling Prior to Offered of the Completion
Shareholder(1) Offering(2) Hereby Offering of Offering
- -------------- ----------- ------ -------- -----------
<S> <C> <C> <C> <C>
Alan D. Bobo 15,965(3) 9,900 25,865 3.4
Elwin K. Bobo 18,555(4) 14,850 33,405 4.4
Michael A. Edwards 8,360(5) 8,250 16,610 2.2
J. Stanley Fitts 22,902(6) 19,250 42,152 5.6
Russell L. Flynn 9,010(7) 11,000 20,010 2.7
Jackson A. Godwin 1,291(8) 9,350 10,641 1.4
Carl C. Hames, Jr. 24,472(9) 27,500 51,972 6.9
Morgan Harvill, Jr. 2,011(10) 27,500 29,511 3.9
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
Common Stock Beneficially Owned
-----------------------------------------------------
Upon Percentage
Completion Owned Upon
Selling Prior to Offered of the Completion
Shareholder(1) Offering(2) Hereby Offering of Offering
- -------------- ----------- ------ -------- -----------
<S> <C> <C> <C> <C>
C. Garry Haygood 28,428(11) 13,750 42,178 5.6
Thomas D. Hopkins, Jr. 15,394(12) 11,000 26,394 3.5
Bobby R. Hubbard 11,268(13) 9,900 21,168 2.8
Dennis M. Lord 31,240(14) 16,500 47,740 6.4
Larry R. Lusk 17,901(15) 8,800 26,701 3.6
Dr. Stuart R. Tasman 11,846(16) 8,800 20,646 2.7
</TABLE>
_______________________________
1 Except as otherwise indicated, the persons named in the table have sole
voting and investment power with respect to all shares shown as
beneficially owned by them. The information shown above is based upon
information furnished to the Company by the named persons. Information
relating to beneficial ownership of the Shares is based upon "beneficial
ownership" concepts set forth in rules promulgated under the Securities Act
of 1934, as amended. Under such rules a person is deemed to be a
"beneficial owner" of a security if that person has or shares "voting
power," which includes the power to dispose or to direct the disposition of
such security. A person is also deemed to be a beneficial owner of any
security of which that person has the right to acquire beneficial ownership
within sixty (60) days. Under the rules, more than one person may be
deemed to be a beneficial owner of the same securities.
2 Excludes shares deemed to be beneficially owned through the right to
exercise warrants within 60 days of the record date.
3 Consists of (a) 11,407 shares owned directly by Mr. Bobo; (b) 660 shares
owned by Mr. Bobo's children, as to which Mr. Bobo disclaims beneficial
ownership; (c) 2,857 shares owned by Mr. Bobo's wife, as to which Mr. Bobo
disclaims beneficial ownership; and (d) 1,041 shares held in an IRA for the
benefit of Mr. Bobo's wife, as to which Mr. Bobo disclaims beneficial
ownership. Mr. Bobo's address is P.O. Box 1092, Woodstock, Georgia.
4 Consists of (a) 17,182 shares owned directly by Mr. Bobo; and (b) 1,373
shares held in an IRA for Mr. Bobo's benefit. Mr. Bobo's address is P.O.
Box 1092, Woodstock, Georgia.
-5-
<PAGE>
5 Consists of (a) 8,250 shares owned directly by Mr. Edwards; and (b) 110
shares held by Mr. Edwards' daughter, as to which Mr. Edwards disclaims
beneficial ownership. Mr. Edwards' address is 7767 Turner Road, Woodstock,
Georgia.
6 Consists of (a) 13,530 shares owned directly by Mr. Fitts; (b) 7,150 shares
held by Reeves Greenhouse, Inc. Profit Sharing Plan; and (c) 2,222 shares
held by Reeves Greenhouse, Inc. Mr. Fitts' address is 5669 E. Alabama
Road, Woodstock, Georgia.
7 As to the indicated shares, Mr. Flynn shares voting power with his wife.
Mr. Flynn's address is 28 Lake Arrowhead Station #2024, Waleska, Georgia.
8 Consists of (a) 191 shares held in an IRA for the benefit of Mr. Godwin's
wife and (b) 1,100 shares held by Mr. Godwin's son. Mr. Godwin's address
is 8565 Jep Wheeler Road, Woodstock, Georgia.
9 Consists of (a) 10,065 shares owned directly by Mr. Hames; and (b) 2,585
shares held in an IRA for Mr. Hames' benefit; (c) 7,092 shares held by Mr.
Hames' wife, as to which Mr. Hames disclaims beneficial ownership; (d)
1,265 shares held in an IRA for the benefit of Mr. Hames' wife, as to which
Mr. Hames disclaims beneficial ownership; (e) 165 shares held by Mr. Hames'
son, as to which Mr. Hames disclaims beneficial ownership; and (f) 3,300
shares subject to options granted pursuant to the Company's Stock Option
Plan. Mr. Hames' address is 2461 South Cherokee Lane, Woodstock, Georgia.
10 Consists of (a) 110 shares owned directly by Mr. Harvill; (b) 1,037 shares
held in a Keogh plan for the benefit of Mr. Harvill; (c) 609 shares held in
an IRA for the benefit of Mr. Harvill; and (d) 255 shares owned by Mr.
Harvill's wife, as to which he disclaims beneficial ownership. Mr.
Harvill's address is P.O. Box 1059, Woodstock, Georgia.
11 Consists of (a) 26,355 shares owned directly by Mr. Haygood; (b) 1,021
shares held in an IRA for the benefit of Mr. Haygood; (c) 550 shares held
by Mr. Haygood's wife as custodian for his daughters, as to which Mr.
Haygood disclaims beneficial ownership; and (d) 502 shares held in an IRA
for the benefit of Mr. Haygood's wife, as to which Mr. Haygood disclaims
beneficial ownership. Mr. Haygood's address is 1472 Johnson Brady Road,
Canton, Georgia.
12 Consists of (a) 12,411 shares owned directly by Mr. Hopkins; (b) 2,701
shares held by Mr. Hopkins' wife, as to which Mr. Hopkins disclaims
beneficial ownership; and (c) 282 shares held in an IRA for Mr. Hopkins'
benefit. Mr. Hopkins' address is 2611 Beckwith Trail, Marietta, Georgia.
-6-
<PAGE>
13 Consists of (a) 9,900 shares owned directly by Mr. Hubbard; (b) 519 shares
held in an IRA for Mr. Hubbard's benefit; (c) 519 shares held in an IRA for
the benefit of Mr. Hubbard's wife, as to which Mr. Hubbard disclaims
beneficial ownership; and (d) 330 shares held by Mr. Hubbard's daughter, as
to which Mr. Hubbard disclaims beneficial ownership. Mr. Hubbard's address
is 803 Upland Estates Drive, Woodstock, Georgia.
14 Consists of (a) 16,500 shares owned directly by Mr. Lord; (b) 11,000 shares
held by Bay Lingerfelt and Lord Inc. Profit Sharing Plan, as to which Mr.
Lord shares voting power; (c) 880 shares held in an IRA for Mr. Lord's
benefit; and (d) 2,860 shares owned jointly by Mr. Lord and his wife. Mr.
Lord's address is 3155 Trickum Road, Woodstock, Georgia.
15 Consists of (a) 8,800 shares owned directly by Mr. Lusk; (b) 7,146 shares
held by his children, as to which Mr. Lusk disclaims beneficial ownership;
(c) 1,189 shares held in an IRA for Mr. Lusk's benefit; and (d) 766 shares
held by Mr. Lusk's wife, as to which Mr. Lusk disclaims beneficial
ownership. Mr. Lusk's address is Route 10, Gaddis Road, Canton, Georgia.
16 Consists of (a) 7,913 shares owned directly by Dr. Tasman; (b) 1,100 shares
held by Dr. Tasman's daughters, as to which Dr. Tasman disclaims beneficial
ownership; (c) 1,379 shares held in an IRA for Dr. Tasman's benefit; and
(d) 1,454 shares held in a SEP IRA for Dr. Tasman's benefit. Dr. Tasman's
address is 1147 Alabama Road, Acworth, Georgia.
Since January 1, 1994, all of the foregoing Selling Shareholders have
served as directors of the Company, and continue to do so, with the exception
of Morgan Harvill, Jr. who resigned in December 1992. In addition, Carl C.
Hames, Jr. also serves as the Chief Executive Officer of the Company and the
Bank.
The Company has agreed to bear all expenses (other than selling
commissions and fees) in connection with the registration and sale of the
Shares being offered by the Selling Shareholders in over-the-counter market
transactions or in negotiated transactions. See "Sale of the Shares." In
recognition of the fact that the Selling Shareholders may wish to be legally
permitted to sell their Shares when they deem appropriate, the Company has
filed with the Commission a Registration Statement on Form S-3 under the
Securities Act with respect to the resale of the Shares from time to time in
the over-the-counter market or in negotiated transactions and has agreed to
prepare and file such amendments and supplements to the Registration
Statement as may be necessary to keep the Registration Statement effective
until the Warrants have expired. This Prospectus forms a part of such
Registration Statement.
-7-
<PAGE>
SALE OF THE SHARES
The sale of the Shares by the Selling Shareholders may be effected from
time to time in transactions in the over-the-counter market, in negotiated
transactions or through a combination of such methods of sale, at fixed prices,
which may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Selling
Shareholders may effect such transactions by selling the Shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Shareholders and/or the
purchasers of the Shares for which such broker-dealers may act as agents or to
whom they sell as principals, or both (which compensation as to a particular
broker-dealer may be in excess of customary compensation).
The Selling Shareholders and any broker-dealers who act in connection with
the sale of the Shares hereunder may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and profit on any resale of the Shares as principals might be deemed to be
underwriting discounts and commissions under the Securities Act.
LIMITATION OF PERSONAL LIABILITY AND INDEMNIFICATION
OF DIRECTORS AND OFFICERS
The Articles of Incorporation of the Company contain certain provisions
limiting the liability of directors and granting to directors and officers of
the Company broad indemnification rights. Each of these provisions is discussed
more fully below.
As permitted by the Georgia Business Corporation Code (the "GBCC"), the
Company's Articles of Incorporation contain provisions which eliminate the
personal liability of directors for monetary damages to the Company or its
shareholders for breach of their fiduciary duties as directors, except to the
extent such elimination of liability is prohibited by the GBCC. In accordance
with the GBCC, these provisions do not limit the liability of any director for
any appropriation of a business opportunity of the Company in violation of the
director's duty; for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; for any dividend payment,
stock repurchase, stock redemption, or distribution in liquidation that is
prohibited under Georgia law; or for any transaction from which the director
derived an improper personal benefit. These provisions do not limit or
eliminate the rights of the Company or any shareholder to seek an injunction or
any other non-monetary relief in the event of a breach of a director's fiduciary
duty. In addition, these provisions apply only to claims against a director
arising out of his role as a director and do not relieve a director from
-8-
<PAGE>
liability for violations of statutory law such as certain liabilities imposed on
a director under the federal securities laws.
In addition, the Company's Articles of Incorporation provide for the
indemnification of both directors and officers for expenses incurred by them in
connection with the defense or settlement of claims asserted against them in
their capacities as directors and officers. In certain cases, this right of
indemnification extends to judgments or penalties assessed against them.
The Company is not aware of any pending or threatened action, suit or
proceeding involving any of its directors or officers for which indemnification
from the Company may be sought. Insofar as indemnification for liabilities
(primarily relating to public distribution of securities) arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company or an affiliate of the Company pursuant to the Company's Articles
of Incorporation or Bylaws or otherwise, the Board of Directors 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.
Accordingly, it is possible that the indemnification provisions may not apply to
liabilities arising under the Securities Act unless the prospective indemnitee
is successful in the proceeding in question.
EXPERTS
The consolidated financial statements included in the Company's Annual
Report on Form 10-KSB for the year ended December 31, 1995, incorporated by
reference in this Prospectus, have been audited by Porter Keadle Moore, LLP
(successor to Evans Porter Bryan & Co.), independent accountants, as indicated
in their report with respect thereto, and are incorporated herein by reference
in reliance upon the authority of said firm as experts in accounting and
auditing in giving said report.
LEGAL OPINION
A legal opinion to the effect that the Shares will, when sold, be legally
issued, fully paid and non-assessable has been rendered by Powell, Goldstein,
Frazer & Murphy, counsel to the Company and the Selling Shareholders.
-9-
<PAGE>
____________________
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING HEREIN CONTEMPLATED AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLDERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF OR THAT ANY INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO ITS DATE.
____________________
-10-
<PAGE>
PART II
<TABLE>
<S> <C> <C>
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration fee to the Securities
and Exchange Commission ............................ $ 952
Printing (EDGAR) expenses ........................... $ 625
Accounting fees and expenses ........................ $ 0
Legal fees and expenses ............................. $ 7,500
Miscellaneous expenses .............................. $ 923
-------
Total ............................................... $10,000
-------
-------
</TABLE>
The foregoing items, except for the registration fee to the Securities and
Exchange Commission, are estimated.
The Registrant has agreed to bear all expenses (other than selling
commissions and fees) in connection with the registration and sale of the
Shares.
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
GEORGIA BUSINESS CORPORATION CODE. The Registrant has statutory authority
to indemnify its officers and directors.
MANDATORY INDEMNIFICATION: The applicable provisions of the Georgia
Business Corporation Code (the "GBCC") state that unless a corporation's
articles of incorporation contain a limiting provision, to the extent a director
or officer of a corporation is successful on the merits or otherwise in the
defense of any threatened, pending or completed civil, criminal, administrative
or investigative action, suit or proceeding (other than a proceeding by or in
the right of the corporation) or on the merits of any claim, issue or matter
therein (a "Proceeding") to which such person was a party because of his or her
status as a director or officer of the corporation or as an officer, director,
partner, trustee, employee or agent of another business entity, the corporation
must indemnify such person against reasonable expenses incurred in connection
therewith.
II-1
<PAGE>
PERMISSIVE INDEMNIFICATION: The GBCC provides that a corporation may
indemnify a director, officer, employee or agent of the corporation or a person
serving another business entity in such capacity at the corporation's request (a
"Person") against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with a Proceeding if such Person acted in good faith and in a manner
he or she 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 or her conduct was unlawful. The termination of
a Proceeding by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the Person did not meet the standard of conduct set forth above.
Under the applicable provisions of the GBCC, indemnification shall be made
by the Registrant only as authorized in the specific case upon a determination
that the indemnification is proper in the circumstances because the Person has
met the applicable standard of conduct. Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum consisting of
directors not at the time parties to such Proceeding;
(b) If such a quorum is not obtainable, by majority vote of a committee
designated by the board of directors (in which designation directors who are
parties may participate) consisting of two or more directors not at the time
parties to the Proceeding;
(c) By special legal counsel selected by the board of directors or a
committee thereof; or
(d) By the affirmative vote of a majority of the shares that are not owned
or voted under the control of Persons who are at the time parties to the
Proceeding.
Indemnification of expenses incurred in defending a Proceeding may be paid
by the corporation in advance of the final disposition of such Proceeding upon
receipt of (a) a written undertaking by or on behalf of the Person to repay such
amount if it shall ultimately be determined that he or she is not entitled to be
indemnified by the corporation as authorized by the GBCC or (b) the Person's
written affirmation of his or her good faith belief that he or she has met the
applicable standard of conduct for permissive indemnification discussed above.
WHEN INDEMNIFICATION IS NOT PERMITTED: Indemnification for liability to
the corporation is not permitted in an action by or in the right of the
corporation in which such Person was adjudged liable to the corporation unless
and only to the extent that the court in which the Proceeding was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, the Person is fairly and reasonably
entitled to indemnity for such expenses that the court deems proper. A
corporation may, however,
II-2
<PAGE>
indemnify a Person for costs actually and reasonably incurred in connection with
the defense or settlement of an action by or in the right of the corporation if
he or she acted in good faith and in a manner such Person reasonably believed to
be in or not opposed to the best interests of the corporation. Indemnification
is also not permitted in connection with any other Proceeding in which a Person
was adjudged liable for deriving an improper personal benefit.
ARTICLES OF INCORPORATION. Article XIII of the Registrant's Articles of
Incorporation provides essentially the same indemnification rights as the GBCC
expressly provides.
The Registrant's shareholders may authorize greater indemnification than
that set forth in the Articles of Incorporation but may not authorize
indemnification for wrongful appropriation of a business opportunity of the
Registrant, an act or omission involving intentional misconduct or a knowing
violation of law, liability as set forth in Section 14-2-832 of the GBCC dealing
with illegal or unauthorized distribution of corporate assets, or any
transaction from which the director receives an improper personal benefit.
The Registrant maintains insurance, at its expense, to protect its
directors and officers against certain expenses, liabilities or losses,
including those arising under the Securities Act of 1993.
<TABLE>
<S> <C> <C>
Item 16. EXHIBITS.
4(a) Articles of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-18 (File No. 33-25075-A)).
4(b) Bylaws of the Registrant (incorporated by reference to
Exhibit 3.2 to the Registrant's Annual Report on
Form 10-KSB for the year ended September 31, 1994.)
4(c) Form of Warrant (incorporated by reference to Exhibit 10.2
to the Registrant's Registration Statement on Form S-18
(File No. 33-25075-A)).
5 Opinion of Powell, Goldstein, Frazer & Murphy as to the
legality of the securities being registered.
23(a) The consent of Powell, Goldstein, Frazer & Murphy is
contained in Exhibit 5.
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C> <C>
23(b) Consent of Porter Keadle Moore, LLP.
24 Power of Attorney (see signature pages to this
Registration Statement)
</TABLE>
Item 17. UNDERTAKINGS.
The small business issuer will:
(1) 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 of 1933;
(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 value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a twenty (20%) percent 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.
NOTE. Small business issuers do not need to give the
statements in paragraphs (1)(i) and (1)(ii) of this item if the
registration statement is on Form S-3 or S-8, and the information
required in a post-effective amendment is incorporated by reference
from periodical reports filed by the small business issuer under the
Securities Exchange Act of 1934.
(2) For determining any liability under the Securities Act of 1933, treat
each post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that 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.
II-4
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
small business issuer pursuant to the foregoing provisions, or otherwise, the
small business issuer 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 small
business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer 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 small business
issuer 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.
II-5
<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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Woodstock, State of Georgia, on November 26, 1996.
FIRST CHEROKEE BANCSHARES, INC.
By:/S/ CARL C. HAMES, JR.
-------------------------------------
Carl C. Hames, Jr.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints CARL C. HAMES, JR. and KITTY A. KENDRICK, and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, 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 and necessary to be done in and about the
premises, 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 either of them, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on
November 26, 1996 in the indicated capacities.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/S/CARL C. HAMES, JR. President and Chief
- ----------------------------------- Executive Officer
Carl C. Hames, Jr. (Principal Executive
Officer)
/S/KITTY A. KENDRICK Senior Vice President
- ----------------------------------- (Principal Financial Officer)
Kitty A. Kendrick
/S/ALAN D. BOBO Director
- -----------------------------------
Alan D. Bobo
/S/ELWIN K. BOBO Director
- -----------------------------------
Elwin K. Bobo
/S/MICHAEL A. EDWARDS Director
- -----------------------------------
Michael A. Edwards
/S/J. STANLEY FITTS Director
- -----------------------------------
J. Stanley Fitts
/S/RUSSELL L. FLYNN Director
- -----------------------------------
Russell L. Flynn
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/S/C. GARRY HAYGOOD Director
- -----------------------------------
C. Garry Haygood
/S/THOMAS D. HOPKINS, JR. Director
- -----------------------------------
Thomas D. Hopkins, Jr.
/S/BOBBY R. HUBBARD Director
- -----------------------------------
Bobby R. Hubbard
/S/DENNIS M. LORD Director
- -----------------------------------
Dennis M. Lord
/S/LARRY R. LUSK Director
- -----------------------------------
Larry R. Lusk
/S/DR. STUART R. TASMAN Director
- -----------------------------------
Dr. Stuart R. Tasman
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
NO. DESCRIPTION PAGE
- ---------------------------------------------------------------
<S> <C> <C>
4(a) Articles of Incorporation N/A
of the Registrant
(incorporated by reference
to Exhibit 3.1 to the
Registrant's Registration
Statement on Form S-18
(File No. 33-25075-A)).
4(b) Bylaws of the Registrant N/A
(incorporated by reference
to Exhibit 3.2 to the
Registrant's Annual Report
on Form 10-KSB for the
year ended September 31, 1994).
4(c) Form of Warrant N/A
(incorporated by reference
to Exhibit 10.2 to the
Registrant's Registration
Statement on Form S-18
(File No. 33-25075-A)).
5 Opinion of Powell, -----
Goldstein, Frazer & Murphy
as to the legality of the
securities being
registered.
23(a) The consent of Powell, -----
Goldstein, Frazer & Murphy
is contained in Exhibit 5.
23(b) Consent of Porter Keadle -----
Moore, LLP.
24 Power of Attorney (see -----
signature pages to this
Registration Statement)
</TABLE>
<PAGE>
EXHIBIT 5
November 26, 1996
First Cherokee Bancshares, Inc.
9860 Highway 92
Woodstock, Georgia 30188
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have served as counsel for First Cherokee Bancshares, Inc., 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-3 to be filed by the Company with the Securities and Exchange
Commission (the "Registration Statement"), of an aggregate of 196,350 shares
(the "Shares") of the Company's common stock, $1.00 par value, to be sold by
certain selling shareholders named in the Registration Statement.
We have examined and are familiar with originals or copies (certified or
otherwise identified to our satisfaction) of such documents, corporate
records and other instruments relating to the incorporation of the Company
and to the authorization for issuance of the Shares as we have deemed
necessary and advisable for the purpose of providing the opinion set forth
below.
Based upon the foregoing and having regard for such legal considerations
that we have deemed relevant, it is our opinion that the Shares, when sold,
will be legally issued, fully paid and non-assessable.
We hereby consent to the reference to our Firm under the heading "Legal
Opinion" in the Prospectus contained in the Registration Statement and to the
filing of this Opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Powell, Goldstein, Frazer & Murphy
POWELL, GOLDSTEIN, FRAZER & MURPHY
<PAGE>
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITOR
We have issued our report dated February 1, 1996, accompanying the
consolidated financial statements of First Cherokee Bancshares, Inc. and
subsidiary appearing in the 1995 Annual Report of the Company to its
shareholders and accompanying the schedules included in the Annual Report on
Form 10-K for the year ended December 31, 1995 which are incorporated by
reference in this Registration Statement and Prospectus. We consent to the
incorporation by reference of the aforementioned report into the Registration
Statement and Prospectus on Form S-3 and to the use of our name as it appears
under the caption "Experts".
/s/ Porter Keadle Moore, LLP
PORTER KEADLE MOORE, LLP
Successor to the practice of
Evans, Porter, Bryan & Co
Atlanta, Georgia
November 26, 1996
