As filed with the Securities and Exchange Commission on _________, 1997.
Registration No. 333-__________
===============================================================================
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- -------------------------------------------------------------------------------
CAROLINA FIRST BANCSHARES, INC.
(Exact name of issuer as specified in its charter)
North Carolina 56-1655882
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
402 East Main Street
Lincolnton, North Carolina 28092
(704) 732-6208
Address including zip code, and telephone number, of registrant's principal
executive offices)
CAROLINA FIRST BANCSHARES, INC.
AMENDED AND RESTATED DIRECTORS' DEFERRED COMPENSATION PLAN
(Full title of the plan)
D. Mark Boyd, III Copy to:
Carolina First BancShares, Inc.
402 East Main Street Laura G. Thatcher
Lincolnton, North Carolina 28092 Alston & Bird LLP
(704) 732-6208 1201 West Peachtree Street, N.W.
(Name, address, including zip code, Atlanta, Georgia 30309-3424
and telephone number, including area (404) 881-7546
code, of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
----------------------------------- ------------------------ ------------------------- ------------------------- ------------------
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered (1) Offering Price Aggregate Registration Fee
Per Share (2) Offering Price (2)
----------------------------------- ------------------------ ------------------------- ------------------------- ------------------
----------------------------------- ------------------------ ------------------------- ------------------------- ------------------
Common Stock, $2.50 par value 100,000 shares $ $ $
----------------------------------- ------------------------ ------------------------- ------------------------- ------------------
----------------------------------- ------------------------ ------------------------- ------------------------- ------------------
Phantom units of Carolina First 100,000 units N/A N/A N/A
BancShares, Inc. Common Stock
----------------------------------- ------------------------ ------------------------- ------------------------- ------------------
<FN>
(1) In addition, this registration statement also covers an indeterminate
amount of deferred compensation obligations to be offered or sold pursuant
to the benefit plan and trust described herein (collectively, the "Plan").
This registration statement also covers any additional units that may
hereafter be granted as a result of the adjustment and anti-dilution
provisions of the Plan.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h), based on the average of the bid and asked
prices of the Common Stock on the over-the-counter market on June 7,
1997.
</FN>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting Part I of this registration statement will
be sent or given to participants in the Plan as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents are incorporated by reference into this
registration statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(2) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act, since December 31, 1996.
(3) The description of common stock contained in the Company's
registration statement filed under Section 12 of the Exchange Act, including all
amendments or reports filed for the purpose of updating such description.
(4) All other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this registration statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
Item 4. Description of Securities
Deferred Compensation Obligations. Under the Plan, the Company will
provide directors the opportunity to enter into agreements for the deferral of
some or all of their compensation as directors. The obligations of the Company
under such agreements (the "Obligations") will be unsecured general obligations
of the Company to pay the deferred compensation in the future in accordance with
the terms of the Plan, and will rank pari passu with other unsecured and
unsubordinated indebtedness of the Company from time to time outstanding.
However, because the Company is a holding company, the right of the Company,
hence the right of creditors of the Company (including participants in the
Plan), to participate in any distribution of the assets of any subsidiary upon
its liquidation or reorganization or otherwise is necessarily subject to the
prior claims of creditors of the subsidiary, except to the extent that claims of
the Company itself as a creditor of the subsidiary may be recognized.
The amount of compensation to be deferred by each participant will be
determined in accordance with the Plan based on elections by the participant.
Each Obligation will be payable when the participant ceases to be a director.
The Obligations will be indexed to one or more benchmark investment returns
individually chosen by each participant from a list of investment media
(currently a certificate of deposit fund, a balanced mutual fund, a growth
mutual fund and a Company stock fund). Each participant's Obligation will be
adjusted to reflect the investment experience of the selected benchmark
investments, including any appreciation or depreciation.
The Company reserves the right to amend or terminate the Plan at any
time, except that no such amendment or termination shall adversely affect the
right of a participant to the balance of his or her deferred account as of the
date of such amendment or termination. The Obligations are not convertible into
another security of the Company. The Obligations will not have the benefit of a
negative pledge or any other affirmative or negative covenant on the part of the
Company.
Phantom Stock. The phantom stock being registered hereby consists of
phantom units of Company common stock. They are merely a means of recording a
hypothetical investment in Company common stock and are not actual shares of
stock. Phantom units have none of the voting or liquidation rights of Company
common stock. Phantom units have no dividend rights per se; however, holders of
phantom units will be entitled to certain dividend equivalents provided for by
the Plan. Specifically, on any date when cash dividends are paid on the shares
of Company common stock, each participant credited with phantom units under the
Plan as of the record date for such dividend will be credited with a number of
additional phantom units, and fractions thereof, determined by dividing (i) the
aggregate dollar amount of such cash dividend payable in respect of such
participant's phantom stock account (determined by multiplying the dollar value
of the dividend paid upon a single share of Company common stock by the number
of units of phantom stock held in the participant's phantom stock account on the
record date for such dividend); by (ii) the fair market value of the Company's
common stock on the business day immediately preceding the payment date for such
cash dividend. Similarly, on any date when stock dividends are paid on the
shares of Company common stock, each participant credited with phantom units
under the Plan as of the record date for such dividend will be credited with a
number of additional phantom units equal to the number of shares of Company
common stock, and fractions thereof, that such participant would have received
had his or her phantom units been actual shares of Company common stock as of
such dividend record date.
Item 5. Interests of Named Experts and Counsel
The validity of the Common Stock registered hereby has been passed upon
for the Company by Alston & Bird LLP, Atlanta, Georgia.
II-1
Item 6. Indemnification of Directors and Officers
As provided under North Carolina law, the Company's Articles of
Incorporation provide that a director shall not be personally liable for
monetary damages for breach of any duty as a director arising out of an action,
whether by or in the right of the corporation, except that such provision shall
not eliminate or limit the liability of a director (a) for acts or omissions
that the director at the time of such breach knew or believed were clearly in
conflict with the best interests of the corporation, (b) for certain unlawful
corporate distributions, or (c) for any transaction from which the director
derived an improper benefit.
The North Carolina Business Corporation Act provides that a North
Carolina corporation may indemnify its directors, officers, employees and agents
against judgments, fines, penalties, amounts paid in settlement, and reasonable
expenses, including attorney's fees, resulting from any threatened, pending, or
completed action, suit or proceeding whether civil, criminal, administrative, or
investigative and whether formal or informal, if the actions of the party being
indemnified meet the standards of conduct specified therein. Determination
concerning whether or not the applicable standard of conduct has been met can be
made by (a) the Board of Directors by a majority vote of a quorum consisting of
disinterested directors, (b) if a quorum of disinterested directors cannot be
obtained, a majority vote of a committee of two or more disinterested directors,
(c) special legal counsel, or (d) an affirmative vote of a majority of shares
held by disinterested shareholders. No indemnification shall be made (i) in
connection with a proceeding by or in the right of the Company in which the
proposed indemnitee was adjudged liable to the Company, 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.
The Company's bylaws provide that, in addition to the indemnification
permitted by law, the Company will indemnify its directors and certain officers
against all liability and litigation expense arising out of their status as
directors or officers, and for reasonable expenses in connection with the
enforcement of their indemnification rights, except for activities which at the
time taken were known or reasonably should have been known to such director or
officer to be clearly in conflict with the best interests of the Company,
determined as provided in the bylaws.
Item 7. Exemption from Registration Claimed
None.
Item 8. Exhibits
The exhibits listed in the Exhibit Index are included as part of this
registration statement.
II-2
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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forthin the registration statement;
(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) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities being 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the registrant's articles of
incorporation, bylaws, 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 of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(signatures on following page)
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Lincolnton, State of North Carolina, on May 20,
1997.
CAROLINA FIRST BANCSHARES, INC.
By: /s/ D. Mark Boyd, III
------------------------------
D. Mark Boyd, III
Chairman of the Board
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints D. Mark Boyd, III and James E. Burt, III,
and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
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, as
fully and to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on the 20th day of May, 1997.
Signature Capacity
/s/ D. Mark Boyd, III Chairman of the Board
- ----------------------------
D. Mark Boyd, III (Principal Executive Officer)
/s/ Jan H. Hollar
- ---------------------- -------------------------------
Jan H. Hollar (Principal Financial and Accounting Officer)
Director and President
- ----------------------------------------
James E. Burt, III
/s/ John R. Boger, Jr. Director
- ----------------------------------------
John R. Boger, Jr.
/s/ Samuel C. King, Jr. Director
- ----------------------------------------
Samuel C. King, Jr.
/s/ Harry D. Ritchie Director
- ----------------------------------------
Harry D. Ritchie
Director
- ----------------------------------------
L.D. Warlick, Jr.
/s/ Estus B. White Director
- ----------------------------------------
Estus B. White
/s/ Charles A. James Director
- ----------------------------------------
Charles A. James
II-4
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
4.1 Articles of Incorporation of the Company, as amended
(incorporated herein by reference to Exhibit 3.0 to the
Company's Registration Statement Number 33-26861).
4.2 Bylaws of the Company, as amended (incorporated herein by
reference to Exhibit 3.1 to the Company's Registration Statement
Number 33-26861).
5 Opinion of Counsel as to the legality of the securities being
registered.
23.1 Consent of Counsel (contained in the opinion filed as Exhibit 5
hereof).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney pursuant to which amendments to this
registration statement may be filed (included on the signature
page contained in Part II hereof).
Exhibit 5
Opinion of Counsel
Alston&Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
June 13, 1997
Carolina First BancShares, Inc.
402 East Main Street
Lincolnton, North Carolina 28092
Re: Form S-8 Registration Statement of Carolina First BancShares, Inc. --
Directors' Deferred Compensation Plan
Ladies and Gentlemen:
We have acted as counsel for Carolina First BancShares, Inc., a North
Carolina corporation (the "Company"), in connection with the referenced
Registration Statement on Form S-8 (the "Registration Statement") being filed by
the Company with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended, and covering 100,000 shares of the
Company's common stock, $2.50 par value ("Common Stock"), and 100,000 phantom
units valued relative to the Company's Common Stock (hereinafter referred to as
"Phantom Units") that may be offered and sold pursuant to the Carolina First
BancShares, Inc. Amended and Restated Directors' Deferred Compensation Plan (the
"Plan"), along with an indeterminate amount of deferred compensation obligations
(the "Obligations"). This Opinion Letter is rendered pursuant to Item 8 of Form
S-8 and Item 601(b)(5) of Regulation S-K.
In the capacity described above, we have considered such matters of law
and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Company, certificates of public officials and such other documents as we have
deemed appropriate as a basis for the opinions hereinafter set forth.
Based upon the foregoing, we are of the following options:
(1) The Phantom Units and the Obligations to be issued pursuant to the
Plan and the Registration Statement have been duly authorized by all requisite
action on the part of the Company and, when issued in accordance with the terms
and conditions of the Plan, will be legally and validly issued and represent the
binding obligation of the Company to make payment to the holders thereof in
accordance with the terms and conditions of the Plan.
(2) The shares of Common Stock covered by the Registration Statement,
when delivered to Plan participants in accordance with the terms and conditions
of the Plan, will be legally and validly issued, fully paid and nonassessable.
This Opinion Letter is provided to you for your benefit and for the
benefit of the Commission, in each case, solely with regard to the Registration
Statement, may be relied upon by you and the Commission only in connection with
the Registration Statement, and may not be relied upon by any other person or
for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD LLP
By:
Laura G. Thatcher
Exhibit 23.2
Consent of KPMG Peat Marwick LLP
INDEPENDENT AUDITORS' CONSENT
Board of Directors
Carolina First Bancshares, Inc.
We consent to the incorporation by reference in the registration statement
on Form S-8, pertaining to the Amended and Restated Directors' Deferred
Compensation Plan, of our report dated February 7, 1997 relating to the
consolidated balance sheets of Carolina First Bancshares, Inc. and
subsidiaries as of December 31, 1996 and 1995 and the related consolidated
statements of income, stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1996, included in the
December 31, 1996 Annual Report on Form 10-K of Carolina First Bancshares,
Inc.
KPMG Peat Marwick, LLP
Charlotte, North Carolina
June 4, 1997