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As filed with the Securities & Exchange Commission on August 20, 1999
Registration No. 333-______
Securities & Exchange Commission
Washington, D.C. 20549
FORM S-8
Registration Statement Under The Securities Act of 1933
SOUTHFIRST BANCSHARES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 63-1121255
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
126 North Norton Avenue
Sylacauga, Alabama 35150
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(Address of principal executive offices)
1998 STOCK OPTION AND INCENTIVE PLAN
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(Full Title of the Plan)
DONALD C. STROUP
PRESIDENT AND CHIEF EXECUTIVE OFFICER
126 NORTH NORTON AVENUE
SYLACAUGA, ALABAMA 35150
(256) 245-4365
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(Name, address and telephone number, including
area code, of agent for service)
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Copies Requested to:
W. Thomas King, Esq.
Smith, Gambrell & Russell
Suite 3100, Promenade II
1230 Peachtree Road, N.E.
Atlanta, Georgia 30309-3592
(404) 815-3678
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CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price (1) Fee
- ----------- ---------- -------------- ------------------ -----------
Options and
underlying shares 63,361 $12.25 $776,172 $215.00
of Common Stock Shares
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the high and low prices of the
Common Stock on the American Stock Exchange on August 19, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are hereby incorporated by reference into
this Registration Statement, and all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, 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 in this
Registration Statement and to be a part hereof from the date of filing such
documents:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1998;
(b) the Company's Quarterly Report on Form 10-QSB for the quarter
ended December 31, 1999;
(c) the Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1999; and
(d) the Company's Registration Statement on Form 8-A, as declared
effective by the Securities and Exchange Commission on February 22, 1995, to
register the Company's Common Stock, $.01 par value per share, under Section
12(b) of the Securities and Exchange Act of 1934, as amended, which Registration
Statement contains a description of the Common Stock.
Item 4. Description of Securities.
No response is required to this item.
Item 5. Interests of Named Experts and Counsel.
No response is required to this item.
Item 6. Indemnification of Officers and Directors.
Certificate of Incorporation. The Company's Amended and Restated
Certificate of Incorporation (the "Certificate") provides that, except with
respect to a matter as to which any person shall have been adjudicated in any
proceeding not to have acted in good faith or in a manner he reasonably believed
to be in, or not opposed to, the best interests of the Company, all persons
shall be entitled to be indemnified by the Company to the fullest extent
permitted by Delaware General Corporation law against any and all expenses
incurred in connection with any proceeding in which any such person is involved
as a result of serving or having served (a) as a director, officer, employee or
agent of the Company, or (b) as a director, officer, employee, agent, partner or
trustee of any other corporation, organization, partnership, joint venture,
trust or other entity at the request or direction of the Company.
In the event of a threatened, pending or completed action or suit by or
in the right of the Company, such person shall be indemnified if such person is
successful on the merits or if such person acted in good
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faith in the transaction which is the subject of the suit or action, or in a
manner such person reasonably believed to be in, or not opposed to, the best
interests of the Company, including the taking of any and all actions in
connection with the Company's response to any tender offer or any offer or
proposal of another party to engage in a business combination not approved by
the Board of Directors. However, such person shall not be indemnified in respect
of any claim, issue or matter as to which such person has been adjudged liable
to the Company unless (and only to the extent that) the court in which the suit
was brought shall determine, upon application, that despite the adjudication but
in view of all the circumstances, such person is fairly and reasonably entitled
to indemnity for such expenses as the court shall deem proper.
In the case of a threatened, pending or completed suit, action or
proceeding (whether civil, criminal, administrative or investigative), other
than a suit by or in the right of the Company (hereafter referred to as a
nonderivative suit), such person shall not be indemnified unless such person is
successful on the merits or acted in good faith in the transaction and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Company, including the taking of any actions in connection with the
Company's response to any tender offer or any offer or proposal of any party to
engage in a business combination not approved by the Board of Directors or with
respect to any criminal action such person had no reasonable cause to believe
was unlawful.
No person shall be indemnified for expenses, penalties or other
payments incurred in connection with an administrative proceeding or action
instituted by a federal or state regulatory authority that results in a final
order assessing civil monetary penalties or requiring such person to make
payments to the Company. The Certificate provides that no director will be
personally liable to the Company or its shareholders for monetary damages for
breach of any fiduciary duty as a director other than (i) a breach of the
director's duty of loyalty to the Company or its shareholders, (ii) acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, (iii) any transaction from which the director derives any
improper personal benefit, or (iv) acts specified under Section 174 of the
General Corporation Law of Delaware.
Delaware Corporate Law. Section 145 of the General Corporation Law of
the State of Delaware provides generally that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he/she is
or was a director, officer, employee or agent of the corporation, or is or was
serving at its request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him/her in
connection with such action, suit or proceeding if he/she acted in good faith
and in a manner he/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/her conduct was unlawful.
Plan Administrators. Pursuant to the terms of the Plan, the Company has
agreed to indemnify directors who serve as members of the committee responsible
for administering the Plan.
Insurance. The Company may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the Company
or is or was serving at the request of the Company
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as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity or arising out of
his status as such, whether or not the Company would have the power to indemnify
him against such liability under the provisions of the Certificate.
Item 7. Exemption From Registration Claimed.
No response to this Item is required.
Item 8. Exhibits.
The following exhibits are filed with this Registration Statement.
Exhibit
Number Description of Exhibit
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4.1 - Registrant's 1998 Stock Option and Incentive Plan, as Amended and Restated.
4.2 - Form of Stock Option Agreement.
5.1 - Opinion of Smith, Gambrell & Russell, LLP.
23.1 - Consent of Jones & Kirkpatrick, P.C.
23.1.1 - Consent of KPMG Peat Marwick LLP.
23.2 - Consent of Smith, Gambrell & Russell, LLP (contained in their opinion filed as
Exhibit 5.1).
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 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.
(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 offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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(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 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 of 1933 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 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
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.
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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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sylacauga, State of Alabama, on this 23rd day of
June, 1999.
SOUTHFIRST BANCSHARES, INC.
By: /s/ Donald C. Stroup
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Donald C. Stroup
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Joe K. McArthur
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Joe K. McArthur
Executive Vice President, Chief Financial Officer,
Secretary and Treasurer (Principal Financial and
Accounting Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Donald C. Stroup and Joe K. McArthur, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution for him, 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 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 and 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 may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Donald C. Stroup President and Chief Executive June 23, 1999
- --------------------- Officer
Donald C. Stroup
/s/ Joe K. McArthur Executive Vice President, June 23, 1999
- --------------------- Chief Financial Officer,
Joe K. McArthur Secretary, Treasurer and
Director
[Signatures continued on following page]
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/s/ H. David Foote, Jr. Director June 23, 1999
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H. David Foote, Jr.
/s/ John T. Robbs Director June 23, 1999
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John T. Robbs
/s/ Allen Gray McMillan, III Director June 23, 1999
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Allen Gray McMillan, III
/s/ Charles R. Vawter, Jr. Director June 23, 1999
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Charles R. Vawter, Jr.
/s/ J. Malcomb Massey Director June 23, 1999
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J. Malcomb Massey
/s/ Bobby R. Cook Director June 23, 1999
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Bobby R. Cook
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
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4.1 Registrant's 1998 Stock Option and Incentive Plan, as Amended and Restated.
4.2 Form of Incentive Stock Option Agreement.
5.1 Opinion of Smith, Gambrell & Russell, LLP.
23.1 Consent of Jones & Kirkpatrick, P.C.
23.1.1 Consent of KPMG Peat Marwick LLP