As filed with the Securities and Exchange Commission on June 22, 2001
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ABC BANCORP
(Exact name of registrant as specified in its charter)
GEORGIA 58-1456434
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
24 2/nd/ Avenue, S.E.
Moultrie, Georgia 31768
(Address, including zip code, of principal executive offices)
ABC BANCORP OMNIBUS STOCK OWNERSHIP AND LONG TERM INCENTIVE PLAN
(Full title of the plan)
Mr. Kenneth J. Hunnicutt Steven E. Fox, Esq.
ABC Bancorp Rogers & Hardin LLP
24 2/nd/ Avenue, S.E. 2700 International Tower
Moultrie, Georgia 31768 229 Peachtree Street, N.E.
(229) 890-1111 Atlanta, Georgia 30303
(404) 522-4700
(Names, addresses, including zip codes, and telephone numbers, including area
codes, of agents for service)
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(2) Offering Price Per Share Aggregate Offering Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value 637,500 $11.25 $7,171,875(3) $1,792.97
$1.00 per share (1)
===============================================================================================================================
(1) Issuable pursuant to ABC Bancorp Omnibus Stock Ownership and Long Term
Incentive Plan (the "Plan").
(2) This registration statement also relates to an indeterminate number of
additional shares of Common Stock that may become issuable pursuant to
anti-dilution and adjustment provisions of the Plan. In addition, pursuant
to Rule 416(c) under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Plan.
(3) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended, and solely for the purpose of calculating the applicable
registration fee, the proposed maximum offering price per share has been
estimated at $11.25, which amount represents the average of the high and
low prices of the Company's common stock as reported on The Nasdaq National
Market on June 20, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by the Registrant and the Plan are
incorporated by reference in this Registration Statement:
(i) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000 (File Number, 000-16181);
(ii) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001; and
(ii) The Registrant's Registration Statement on Form 8-A filed on
September 2, 1987.
All documents subsequently filed by the Registrant and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment to this Registration Statement which indicates that all the
shares of Common Stock offered hereby have been sold or which deregisters all of
such shares 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. 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 Registration Statement to the extent that a
statement contained herein 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.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Officers and Directors.
-----------------------------------------
Subsection (a) of Section 14-2-851 of the Georgia Business Corporation
Code (the "GBCC") provides that a corporation may indemnify an individual who is
party to a proceeding because he or she is or was a director against liability
incurred in the proceeding if (1) such individual conducted himself or herself
in good faith; and (2) such individual reasonably believed (A) in the case of
conduct in his or her official capacity, that such conduct was in the best
interests of the corporation, (B) in all other cases, that such conduct was at
least not opposed to the best interests of the corporation, and (C) in the case
of any criminal proceeding, that the individual had no reasonable cause to
believe that such conduct was unlawful. Subsection (d) of Section 14-2-851 of
the GBCC provides that a corporation may not indemnify a director in connection
with a proceeding by or in the right of the corporation, except for reasonable
expenses incurred in connection with the proceeding if it is determined that the
director has met the relevant standard of conduct, or in connection with any
proceeding with respect to conduct for which he or she was adjudged liable on
the basis that personal benefit was improperly received by him or her, whether
or not involving action in his or her official capacity. Notwithstanding the
foregoing, pursuant to Section 14-2-854 of the GBCC, a court may order a
corporation to indemnify a director if such court determines, in view of all the
relevant circumstances, that it is fair and reasonable to indemnify or advance
expenses to the director, even if the director has not met the relevant standard
of conduct set forth in subsections (a) and (b) of Section 14-2-851 of the GBCC,
failed to comply with Section 14-2-853 of the GBCC, or was adjudged liable in a
proceeding referred to in paragraph (1) or (2)
II-1
of subsection (d) of Section 14-2-851 of the GBCC, but if the director was
adjudged so liable, the indemnification shall be limited to reasonable expenses
incurred in connection with the proceeding.
Section 14-2-852 of the GBCC provides that a corporation shall indemnify a
director who was wholly successful, on the merits or otherwise, in the defense
of any proceeding to which he or she was a party because he or she was a
director of the corporation against reasonable expenses incurred by the director
in connection with the proceeding.
Section 14-2-857 of the GBCC provides that a corporation may indemnify and
advance expenses to an officer of the corporation who is a party to a proceeding
because he or she is an officer of the corporation to the same extent as a
director. If the officer is not a director (or if the officer is a director but
the sole basis on which he or she is made a party to the proceeding is an act or
omission solely as an officer), the corporation may also indemnify and advance
expenses to such officer to such further extent as may be provided by the
articles of incorporation or the bylaws of the corporation, by a resolution of
the board of directors of the corporation, or by contract, except for liability
arising out of conduct that constitutes (1) the appropriation, in violation of
their duties, of any business opportunity of the corporation, (2) acts or
omissions which involve intentional misconduct or a knowing violation of law,
(3) the types of liability set forth in Section 14-2-832 of the GBCC or (4)
receipt of an improper personal benefit. An officer of a corporation who is not
a director is entitled to mandatory indemnification under Section 14-2-852 of
the GBCC and may apply to a court under Section 14-2-854 of the GBCC for
indemnification or advances, in each case to the same extent to which a director
may be entitled to indemnification under those provisions. Finally, a
corporation may also indemnify an employee or agent who is not a director to the
extent, consistent with public policy, that may be provided by its articles of
incorporation or bylaws, by general or specific action by its board of directors
or by contract.
Article XI of the Articles of Incorporation of the Registrant provides
that, except as may be limited by the GBCC or any successor law, no director
shall be personally liable to the Registrant or any of its shareholders for
monetary damages for breach of his or her duty of care or other duty as a
director.
Article VII of the Bylaws of the Registrant provides that every person (and
the heirs and legal representatives of such person) who is or was a director or
officer of the Registrant or any other corporation of which he or she served as
such at the request of the Registrant and of which the Registrant directly or
indirectly is a shareholder or creditor, or in which or in the stocks, bonds,
securities or other obligations of which the Registrant is in any way
interested, may be indemnified for any liability and expense resulting from any
threatened, pending or completed action, suit or proceeding, civil, criminal,
administrative or investigative or derivative or otherwise, or in connection
with any appeal relating thereto, in which he or she may become involved, as a
party or prospective party or otherwise, by reason of any action taken or not
taken in his or her capacity as a director or officer or as a member of any
committee appointed by the board of directors of the Registrant to act for, in
the interest of, or on behalf of the Registrant, whether or not he or she
continues to be a director or officer at the time such liability or expense is
incurred; provided 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
Registrant and, in addition, with respect to any criminal action or proceeding,
did not have reasonable cause to believe that his or her conduct was unlawful.
The termination of any claim, action, suit or proceeding, by judgment, order,
compromise, settlement (with or without court approval) or conviction or upon a
plea of guilty or of nolo contendere, or its equivalent, does not create a
presumption that a director or officer did not meet the standards of conduct set
forth in the Bylaws. Expenses incurred with respect to any claim, action, suit
or proceeding of the character described in Article VII of the Bylaws of the
Registrant may be advanced by the Registrant prior to the final disposition
thereof upon receipt of any undertaking by or on behalf of the recipient to
repay such amount, unless it is ultimately determined that he or she is entitled
to indemnification under the Bylaws.
Notwithstanding the foregoing, Article VII of the Registrant's Bylaws
provides that no officer or director who was or is a party to any action or suit
by or in the right of the Registrant to procure a judgment in its favor by
reason of the fact that he or she is or was an officer or director of the
Registrant or such other corporation can be indemnified in respect of any claim,
issue or matter as to which such person is adjudged to be liable for negligence
or misconduct in the performance of his or her duty to the Registrant, unless
the court in which such action or suit was brought determines that, despite the
adjudication of liability and in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as
II-2
the court deems proper.
Article VII of the Registrant's Bylaws further provides that every
person (and the heirs and legal representatives of such person) referred to
above who has been wholly successful, on the merits or otherwise, with the
respect to such claim, action, suit or proceeding is entitled to indemnification
as of right without any further action or approval by the board of directors of
the Registrant, and any indemnification pursuant to the Bylaws of the Registrant
will be made at the discretion of the Registrant only if (a) the board of
directors, acting by majority vote of a quorum consisting of directors who were
not parties to such claim, action, suit or proceeding, present or voting, finds
that the director or officer met the standard of conduct set forth in the
Bylaws, or (b) if no such quorum of the board of directors exists, independent
legal counsel at the request of either the Registrant or the person seeking
indemnification, delivers to the Registrant such counsel's written opinion that
such director or officer met such standards, or (c) the holders of a majority of
stock then entitled to vote for the election of directors determines by
affirmative vote that such director or officer met such standards.
The rights of indemnification provided in Article VII of the
Registrant's Bylaws are in addition to any rights to which any director or
officer may otherwise be entitled under any bylaw, agreement, vote of
shareholders, or otherwise, and are in addition to the power of the Registrant
to purchase and maintain insurance on behalf of any director or officer against
any liability asserted against him or her and incurred by him or her in such
capacity, or arising out of his or her status as such, regardless of whether the
Registrant would have the power to indemnify against such liability under the
Bylaws or otherwise.
The Registrant's Bylaws further provide that any repeal or
modification of the Bylaws by the shareholders of the Registrant cannot
adversely affect any right or protection of a director of the Registrant
existing at the time of such repeal or modification.
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.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item8. Exhibits.
--------
The exhibits to this Registration Statement are listed on the Exhibit
Index included elsewhere herein.
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.
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the Registration Statement
II-3
or any material change to such information in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove 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 herein, 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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item
6, 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 of 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.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), 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 Moultrie, Georgia, on this 20th day of
June, 2001.
ABC BANCORP
By: /s/ Kenneth J. Hunnicutt
------------------------
Kenneth J. Hunnicutt
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
We, the undersigned officers and directors of ABC Bancorp, hereby severally
constitute and appoint Kenneth J. Hunnicutt and W. Edwin Lane, Jr., and each of
them, with full power of substitution, our true and lawful attorneys and agents,
to execute in our names and on our behalf in the capacities indicated below, any
and all amendments (including, without limitation, post-effective amendments) to
this Registration Statement and any and all other instruments which such
attorneys and agents, or any one of them, deem necessary or advisable to enable
ABC Bancorp to comply with the Securities Act, the rules, regulations and
requirements of the Securities Act in respect thereof, and the securities laws
of any state or other political subdivision or jurisdiction; and the undersigned
officers and directors do hereby severally ratify and confirm as our own acts
and deeds all that such attorneys and agents, and each of them, shall do or
cause to be done by virtue hereof. Any one of such attorneys and agents shall
have, and may exercise, all of the powers hereby conferred.
Signature Title Date
--------- ----- ----
/s/ Kenneth J. Hunnicutt Chairman of the Board and Chief Executive Officer June 20, 2001
- ------------------------------------------ (Principal Executive Officer)
Kenneth J. Hunnicutt
/s/ W. Edwin Lane, Jr. Executive Vice President and Chief Financial Officer June 20, 2001
- ------------------------------------------ (Principal Financial and Accounting Officer)
W. Edwin Lane, Jr.
/s/ Mark D. Thomas President, Chief Operating Officer and Director June 20, 2001
- ------------------------------------------
Mark D. Thomas
/s/ John G. Briggs Director June 20, 2001
- ------------------------------------------
John G. Briggs
/s/ Johnny W. Floyd Director June 20, 2001
- ------------------------------------------
Johnny W. Floyd
/s/ J. Raymond Fulp Director June 20, 2001
- ------------------------------------------
J. Raymond Fulp
/s/ Daniel P. Jeter Director June 20, 2001
- ------------------------------------------
Daniel P. Jeter
Director June __, 2001
- ------------------------------------------
Robert P. Lynch
/s/ Eugene M. Vereen, Jr. Director June 20, 2001
- ------------------------------------------
Eugene M. Vereen, Jr.
/s/ Doyle Weltzbarker Director June 20, 2001
- ------------------------------------------
Doyle Weltzbarker
Director June __, 2001
- ------------------------------------------
Henry Wortman
II-5
EXHIBIT INDEX
Exhibit
No. Description
------- -----------
5.1 Opinion of Rogers & Hardin LLP
23.1 Consent of Rogers & Hardin LLP (contained in Exhibit 5.1 hereto)
23.2 Consent of Mauldin & Jenkins, Certified Public Accountants and
Consultants, LLC, with respect to the financial statements of ABC
Bancorp
24.1 Powers of Attorney (included in the Signature Page hereto)
II-6