As
filed with the Securities and Exchange Commission on January 30,
2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
Colony
Bankcorp, Inc.
(Exact
Name of Registrant as Specified in its Charter)
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Georgia
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58-1492391
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(State
or Other Jurisdiction of Incorporation or Organization)
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(I.R.S.
Employer Identification Number)
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115
South Grant Street
Fitzgerald,
Georgia 31750
Tel:
(229) 426-6000
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
Terry
L. Hester
Executive
Vice President and Chief Financial Officer
Colony
Bankcorp, Inc.
115
South Grant Street
Fitzgerald,
Georgia 31750
Tel:
(229) 426-6000
(Name,
Address, including Zip Code, and Telephone Number, including Area Code, of Agent
for Service)
With
copies to:
Michael
N. White
Martin
Snow, LLP
240
Third Street
Macon,
Georgia 31201
(478)
749-1700
Approximate
date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
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. o
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. o
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act (Check one):
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Large
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer o
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Smaller
reporting company o
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities to be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering
Price
per
Unit
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, no par value per
share
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28,000 |
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$ |
1,000 |
(1) |
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$ |
28,000,000 |
(1) |
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$ |
1,101.00 |
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Warrant
to Purchase Common Stock, par value $1.00 per share, and underlying shares
of Common Stock(2)
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500,000 |
(2) |
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$ |
8.40 |
(3) |
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$ |
4,200,000 |
(3) |
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$ |
165.00 |
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TOTAL:
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$ |
32,2000,000 |
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$ |
1,266.00 |
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(1)
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Calculated
in accordance with Rule 457(a) and includes such additional number of
shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A, of a
currently indeterminable amount, as may from time to time become issuable
by reason of stock splits, stock dividends or similar
transactions.
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(2)
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In
addition to the Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
there are being registered hereunder (a) a warrant for the purchase of
500,000 shares of Common Stock with an initial per share exercise price of
$8.40, (b) the 500,000 shares of Common Stock issuable upon the exercise
of such warrant and (c) such additional number of shares of Common Stock,
of a currently indeterminable amount, as may from time to time become
issuable by reason of stock splits, stock dividends and certain
anti-dilution provisions set forth in such warrant, which shares of Common
Stock are registered hereunder pursuant to Rule
416.
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(3)
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Calculated
in accordance with Rule 457(i) with respect to the per share exercise
price of the warrant of $8.40.
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The
information in this prospectus is not complete and may be changed. The selling
securityholders may not sell these securities or accept an offer to buy these
securities until the registration statement filed with the Securities and
Exchange Commission is effective. This prospectus is not an offer to
sell these securities and it is not soliciting an offer to buy these securities
in any jurisdiction where such offer or sale is not permitted.
DATED
JANUARY 30, 2009
PROSPECTUS
Colony
Bankcorp, Inc.
Fixed
Rate Cumulative Perpetual Preferred Stock, Series A
Warrant
to Purchase 500,000 Shares of Common Stock
500,000
Shares of Common Stock
This
prospectus relates to the potential resale from time to time by selling
securityholders of some or all of the shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series A, no par value per share (the “Series A
Preferred Stock”), a warrant (the “Warrant”) to purchase 500,000 shares of our
common stock, par value $1.00 per share (the “Common Stock”), and any shares of
Common Stock issuable upon the exercise of the Warrant. In this
prospectus, we refer to the shares of Series A Preferred Stock, the Warrant and
the shares of Common Stock issuable upon exercise of the Warrant, collectively,
as the “Securities.” The Series A Preferred Stock and the Warrant
were originally issued by us pursuant to the Letter Agreement dated January 9,
2009, and the related Securities Purchase Agreement—Standard Terms, between us
and the United States Department of the Treasury (the “Treasury”) in a
transaction exempt from the registration requirements of the Securities Act of
1933, as amended, or the Securities Act.
The
Treasury and its successors, including transferees (collectively, the “Selling
Securityholders”), may offer the securities from time to time directly or
through underwriters, broker-dealers or agents and in one or more public or
private transactions and at fixed prices, prevailing market prices, at prices
related to the prevailing market prices or at negotiated prices. If
these securities are sold through underwriters, broker-dealers or agents, the
Selling Securityholders will be responsible for underwriting discounts or
commissions or agents’ commissions.
Neither
the Series A Preferred Stock nor the Warrant is listed on any exchange, and,
unless requested by the Treasury, we do not intend to list the Series A
Preferred Stock on any exchange. We do not intend to list the Warrant
on any exchange.
Our
Common Stock is listed on the Nasdaq Stock Market and trades under the ticker
symbol “CBAN.” On January 28, 2009, the last reported sale price of
our Common Stock on the Nasdaq Stock Market was $7.54. You are urged
to obtain current market quotations of the Common Stock.
Investing in our
securities involves risks. See the “Risk Factors” section beginning
on page 2.
Our
principal executive offices are located at 115 South Grant Street, Fitzgerald,
Georgia 31750, and our telephone number is (229) 426-6000. Our
Internet address is www.colonybank.com.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
These
securities are not deposits or accounts or other obligations of any bank or
savings association and are not insured or guaranteed by the Federal Deposit
Insurance Corporation or any other governmental agency.
The date
of this prospectus is January 30, 2009
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This
prospectus is a part of a registration statement that we filed with the
Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration
process. Under this shelf registration process, the Selling Securityholders may,
from time to time, sell any combination of the securities described in this
prospectus in one or more offerings.
The
registration statement containing this prospectus, including the exhibits to the
registration statement, provides additional information about us and the
securities offered under this prospectus. The registration statement, including
the exhibits and the documents incorporated herein by reference, can be read on
the SEC website or at the SEC offices mentioned under the heading “Where You Can
Find More Information” and “Incorporation by Reference.” All
references to “Colony Bankcorp, Inc.,” “the Company,” “we,” “our,” “us” and
similar terms refer to Colony Bankcorp, Inc. and its consolidated subsidiaries
unless otherwise stated or the context otherwise requires.
We may
provide a prospectus supplement containing specific information about the terms
of a particular offering by the Selling Securityholders. The prospectus
supplement may add, update or change information in this prospectus. If the
information in the prospectus is inconsistent with a prospectus supplement, you
should rely on the information in that prospectus supplement. You should read
both this prospectus and, if applicable, any prospectus supplement. See “Where
You Can Find More Information” for more information.
We have
not authorized any dealer, salesman or other person to give any information or
to make any representation other than those contained or incorporated by
reference in this prospectus or any prospectus supplement. You must not rely
upon any information or representation not contained or incorporated by
reference in this prospectus or any prospectus supplement. Neither this
prospectus nor any prospectus supplement constitutes an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor does this prospectus or any prospectus
supplement constitute an offer to sell or the solicitation of an offer to buy
securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. You should not assume that the
information contained in this prospectus or any prospectus supplement is
accurate on any date subsequent to the date set forth on the front of such
document or that any information we have incorporated by reference is correct on
any date subsequent to the date of the document incorporated by reference, even
though this prospectus and any prospectus supplement is delivered or securities
are sold on a later date.
ABOUT COLONY BANKCORP, INC.
Colony
Bankcorp, Inc. is a bank holding company headquartered in Fitzgerald, Georgia,
with thirty locations in the south and middle Georgia cities of Fitzgerald,
Warner Robins, Centerville, Ashburn, Leesburg, Cordele, Albany, Thomaston,
Columbus, Sylvester, Tifton, Moultrie, Douglas, Broxton, Savannah, Eastman,
Chester, Soperton, Rochelle, Pitts, Quitman and Valdosta. Total
consolidated assets of the company are approximately $1.25 billion.
The
executive offices of the Company are located at 115 South Grant Street,
Fitzgerald, Georgia 31750. The Company’s telephone number is (229)
426-6000. The website for the Company and Colony Bank
is www.colonybank.com. Information
on this website does not constitute part of this prospectus.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This
prospectus and the documents we incorporate by reference herein contain
“forward-looking statements” within the meaning of the United States securities
laws that deal with future results, expectations, plans and performance. In
addition, the Company’s management may make forward-looking statements orally to
the media, securities analysts, investors or others. Forward-looking statements
can be identified by the fact that they do not relate strictly to historical or
current facts. They often include words such as “optimism,” “look-forward,”
“bright,” “believe,” “expect,” “anticipate,” “intend,” “plan,” “estimate” or
words of similar meaning, or future or conditional verbs such as “will,”
“would,” “should,” “could” or “may.”
Forward-looking
statements about the Company’s expected financial results and other plans are
subject to certain risks, uncertainties and assumptions. These include, but are
not limited to, the following: possible legislative changes and adverse
economic, business and competitive conditions and developments (such as
shrinking interest margins and continued short-term rate environments); deposit
outflows; reduced demand for financial services and loan products; changes in
accounting policies or guidelines, or in monetary and fiscal policies of the
federal government; changes in credit and other risks posed by the Company’s
loan and lease portfolios; the ability or inability of the Company to manage
interest rate and other risks; unexpected or continuing claims against the
Company’s self-insured health plan; the Company’s use of trust preferred
securities; the ability or inability of the Company to successfully enter into a
definitive agreement for and close anticipated transactions; technological,
computer-related or operational difficulties; adverse changes in securities
markets; results of litigation; or other significant uncertainties.
Forward-looking
statements speak only as of the date they are made. The Company does not
undertake to update forward-looking statements to reflect circumstances or
events that occur after the date the forward-looking statements are made.
Although the Company believes that its expectations are reasonable, it can give
no assurance that such expectations will prove to be correct. Based upon
changing conditions, should any one or more of these risks or uncertainties
materialize, or should any underlying assumptions prove incorrect, actual
results may vary materially from those described in any forward-looking
statements.
Forward-looking
statements should not be viewed as predictions, and should not be the primary
basis upon which investors evaluate the Company. Any investor in the Company
should consider all risks and uncertainties disclosed in our filings with the
SEC, described below under the heading “Where You Can Find More Information,”
all of which are accessible on the SEC’s website at www.sec.gov.
An
investment in our securities involves significant risks. You should carefully
consider the risks and uncertainties and the risk factors set forth in the
documents and reports filed with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, which we refer to
as the Exchange Act, that are incorporated by reference into this prospectus, as
well as any risks described in any applicable prospectus supplement, before you
make an investment decision regarding the Securities. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may
also adversely affect our business, prospects, financial condition, results of
operations and cash flows.
Recent
negative developments in the financial services industry and U.S. and global
credit markets may adversely impact our operations and results.
Negative
developments in the capital markets in the latter half of 2007 and in 2008 and
the expectation of the general economic downturn continuing in 2009 have
resulted in uncertainty in the financial markets in general. Loan portfolio
performances have deteriorated at many institutions resulting from, among other
factors, a weak economy and a decline in the value of the collateral supporting
their loans. The competition for our deposits has increased significantly due to
liquidity concerns at many of these same institutions. Stock prices of bank
holding companies, like ours, have been negatively affected by the current
condition of the financial markets, as has our ability, if needed, to raise
capital or borrow in the debt markets. As a result, there is a potential for new
federal or state laws and regulations regarding lending and funding practices
and liquidity standards, and financial institution regulatory agencies are
expected to be very aggressive in responding to concerns and trends identified
in examinations. Negative developments in the financial services industry and
the impact of new legislation in response to those developments could adversely
impact our operations, including our ability to originate or sell loans, and
adversely impact our financial performance.
We
have a high concentration of loans secured by real estate and a downturn in the
real estate market, for any reason, could result in losses and materially and
adversely affect our business, financial condition, results of operations and
future prospects.
A
significant portion of our loan portfolio is dependent on real estate. In
addition to the financial strength and cash flow characteristics of the borrower
in each case, often loans are secured with real estate collateral. At December
31, 2008, approximately 85% of loans have commercial or residential real estate
as a component of collateral. The real estate in each case provides an alternate
source of repayment in the event of default by the borrower and may deteriorate
in value during the time the credit is extended. Further adverse changes in the
economy affecting values of real estate generally or in our primary markets
specifically could significantly impair the value of our collateral and our
ability to sell the collateral upon foreclosure. Furthermore, it is likely that,
in a declining real estate market, we would be required to increase our
allowance for loan losses as occurred in 2008, causing material strain on
recurring levels of net income. If we are required to liquidate the collateral
securing a loan to satisfy the debt during a period of reduced real estate
values or to increase our allowance for loan losses, our profitability and
financial condition could be adversely impacted.
We
operate in a highly regulated environment and may be adversely impacted by
changes in law and regulations.
Colony
Bankcorp, Inc., primarily through the Bank, is subject to extensive federal and
state regulation and supervision. Banking regulations are primarily intended to
protect depositors’ funds, federal deposit insurance funds and the banking
system as a whole, not shareholders. These regulations affect our lending
practices, capital structure, investment practices, dividend policy and growth,
among other things. Congress and federal regulatory agencies
continually review banking laws, regulations and policies for possible
changes. Changes to statutes, regulations or regulatory policies,
including changes in interpretation or implementation of statutes, regulations
or policies, could affect the Company in substantial, unpredictable and adverse
ways. Such changes could subject us to additional costs, limit the
types of financial services and products we may offer and increase the ability
of non-banks to offer competing financial services and products, among other
things. Failure to comply with laws, regulations or policies could result in
sanctions by regulatory agencies, civil money penalties and damage to our
reputation, which could have a material adverse effect on our business,
financial condition and results of operations. While we have policies
and procedures designed to prevent any such violations, there is no assurance
that such violations will not occur.
Future
loan losses may exceed our allowance for loan losses
We are
subject to credit risk, which is the risk of losing principal or interest due to
borrowers’ failure to repay loans in accordance with their terms. A
downturn in the economy or the real estate market in our market areas or a rapid
change in interest rates could have a negative effect on collateral values and
borrowers’ ability to repay. This deterioration in economic conditions could
result in losses to the Bank in excess of loan loss allowances. To
the extent loans are not paid timely by borrowers, the loans are placed on
nonaccrual, thereby reducing interest income. To the extent loan
charge-offs exceed our financial models, increased amounts charged to the
provision for loan losses would reduce income.
Rapidly
changing interest rate environments could reduce our net interest margin, net
interest income, fee income and net income
Interest
and fees on loans and securities, net of interest paid on deposits and
borrowings, are a large part of our net income. Interest rates are
key drivers of our net interest margin and subject to many factors beyond the
control of management. As interest rates change, net interest income
is affected. Rapid increases in interest rates in the future could
result in interest expense increasing faster than interest income because of
mismatches in financial instrument maturities. Further, substantially
higher interest rates generally reduce loan demand and may result in slower loan
growth particularly in construction lending, an important factor in the
Company’s revenue growth over the years. Decreases or increases in
interest rates could have a negative effect on the spreads between the interest
rates earned on assets and the rates of interest paid on liabilities, and
therefore decrease net interest income.
Slower
than anticipated growth in new branches and new product and service offerings
could result in reduced net income
We have
placed a strategic emphasis on expanding our branch network and product
offerings. Executing this strategy carries risks of slower than anticipated
growth both in new branches and new products. New branches and
products require a significant investment of both financial and personnel
resources. Lower than expected loan and deposit growth in new
investments can decrease anticipated revenues and net income generated by those
investments, and opening new branches and introducing new products could result
in more additional expenses than anticipated and divert resources from current
core operations.
The
financial services industry is very competitive
We face
competition in attracting and retaining deposits, making loans, and providing
other financial services throughout our market area. Our competitors
include other community banks, larger banking institutions, and a wide range of
other financial institutions such as credit unions, government-sponsored
enterprises, mutual fund companies, insurance companies and other nonbank
businesses. Many of these competitors have substantially greater
resources than us. If we are unable to compete effectively, we will
lose market share, and income from deposits, loans and other products may be
reduced.
Inability
to hire or retain certain key professionals, management and staff could
adversely affect our revenues and net income
We rely
on key personnel to manage and operate our business, including major revenue
generating functions such as our loan and deposit portfolios. The
loss of key staff may adversely affect our ability to maintain and manage these
portfolios effectively, which could negatively affect our
revenues. In addition, loss of key personnel could result in
increased recruiting and hiring expenses, which could cause a decrease in our
net income.
WHERE YOU CAN FIND MORE INFORMATION
This
prospectus, which forms part of the registration statement, does not contain all
of the information in the registration statement. We have omitted certain parts
of the registration statement, as permitted by the rules and regulations of the
SEC. For further information regarding the Company and our securities, please
see our other filings with the SEC, including our annual, quarterly, and current
reports and any proxy statements, which you may read and copy at the Public
Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C.
20549. You may obtain information about the Public Reference Room by
calling the SEC at 1-800-SEC-0330. Our public filings with the SEC
are also available to the public on the SEC’s Internet website at www.sec.gov.
Our Internet website address is www.colonybank.com.
We
furnish holders of our Common Stock with annual reports containing audited
financial statements prepared in accordance with accounting principles generally
accepted in the United States following the end of each fiscal year. We file
reports and other information with the SEC pursuant to the reporting
requirements of the Exchange Act.
Descriptions
in this prospectus of documents are intended to be summaries of the material,
relevant portions of those documents, but may not be complete descriptions of
those documents. For complete copies of those documents, please refer to the
exhibits to the registration statement and other documents filed by us with the
SEC.
The SEC
allows us to “incorporate by reference” the information we file with the SEC,
which means that we can disclose important information to you without actually
including the specific information in this prospectus by referring you to those
documents. The information incorporated by reference is an important part of
this prospectus and later information that we file with the SEC will
automatically update and supersede this information. Therefore, before you
decide to invest in a particular offering of securities under this shelf
registration, you should always check for reports we may have filed with the SEC
after the date of this prospectus. In all cases, you should rely on later
information over different information included in this prospectus. We
incorporate by reference into this prospectus the documents listed below, except
to the extent any information contained in such filings is deemed “furnished” in
accordance with SEC rules. Such furnished information is not deemed filed under
the Exchange Act and is not incorporated in this prospectus:
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our
Quarterly Report on Form 10-Q for the quarter ended September 30,
2008;
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—
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our
Current Reports on Form 8-K filed with the SEC on October 24, 2008,
December 19, 2008, January 2, 2009, and January 13, 2009;
and
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—
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the
description of our Common Stock, contained in our Registration Statement
on Form S-4, filed with the SEC on December 28,
2001.
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All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act (other than Current Reports on Form 8-K furnished pursuant
to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with such
information, unless otherwise indicated therein), subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
that indicates that all securities offered have been sold or that 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.
We will
provide a copy of any or all of the information incorporated by reference herein
(other than certain exhibits to such documents not specifically incorporated by
reference) to each person, including any beneficial owner, to whom a copy of
this prospectus has been delivered, upon written or oral request of such person,
at no cost to the requester. Requests for such copies should be directed
to:
Investor
Relations
COLONY
BANKCORP, INC.
115 South
Grant Street
Fitzgerald,
Georgia 31750
Tel:
(229) 426-6000
We will
not receive any proceeds from any sale of the Securities by the Selling
Securityholders.
RATIOS
OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
No shares
of our Series A preferred stock, or any other class of preferred stock, were
outstanding during the years ended December 31, 2007, 2006, 2005, 2004 and 2003,
or during the nine months ended September 30, 2008, and we did not pay preferred
stock dividends during these periods. Consequently, there were no
ratios of earnings to combined fixed charges and preference dividends presented
in our Annual Reports for the years ended December 31, 2007, 2006, 2005, 2004
and 2003 or in our Quarterly Report on Form 10-Q for the quarter ended September
30, 2008, all of which are incorporated herein by reference.
The
Selling Securityholders and their successors, including their transferees, may
sell the securities directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions from the Selling Securityholders or the purchasers of
the securities. These discounts, concessions or commissions as to any particular
underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved.
The
securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale or at negotiated prices. These sales may be effected in
transactions, which may involve crosses or block transactions:
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on
any national securities exchange or quotation service on which
the Series A Preferred Stock or the Common Stock may be listed
or quoted at the time of sale, including, as of the date of this
prospectus, the Nasdaq Stock Market in the case of the Common
Stock;
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in
the over-the-counter market;
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in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
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through
the writing of options, whether the options are listed on an options
exchange or otherwise.
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In
addition, any securities that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
In
connection with the sale of the securities or otherwise, the Selling
Securityholders may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Common Stock issuable upon exercise of
the Warrant in the course of hedging the positions they assume. The Selling
Securityholders may also sell short the Common Stock issuable upon exercise of
the Warrant and deliver Common Stock to close out short positions, or loan or
pledge the Series A Preferred Stock or the Common Stock issuable upon exercise
of the Warrant to broker-dealers that in turn may sell these
securities.
The
aggregate proceeds to the Selling Securityholders from the sale of the
securities will be the purchase price of the securities less discounts and
commissions, if any.
In
effecting sales, broker-dealers or agents engaged by the Selling Securityholders
may arrange for other broker-dealers to participate. Broker-dealers or agents
may receive commissions, discounts or concessions from the Selling
Securityholders in amounts to be negotiated immediately prior to the
sale.
In
offering the securities covered by this prospectus, the Selling Securityholders
and any broker-dealers who execute sales for the Selling Securityholders may be
deemed to be “underwriters” within the meaning of Section 2(a)(11) of the
Securities Act in connection with such sales. Any profits realized by the
Selling Securityholders and the compensation of any broker-dealer may be deemed
to be underwriting discounts and commissions. Selling Securityholders who are
“underwriters” within the meaning of Section 2(a)(11) of the Securities Act will
be subject to the prospectus delivery requirements of the Securities Act and may
be subject to certain statutory and regulatory liabilities, including
liabilities imposed pursuant to Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5 under the Securities Exchange Act of 1934, or the Exchange
Act.
In order
to comply with the securities laws of certain states, if applicable, the
securities must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the securities may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of securities pursuant to this prospectus and to the activities of the
Selling Securityholders. In addition, we will make copies of this prospectus
available to the Selling Securityholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act, which may include
delivery through the facilities of the Nasdaq Stock Market pursuant to Rule 153
under the Securities Act.
At the
time a particular offer of securities is made, if required, a prospectus
supplement will set forth the number and type of securities being offered and
the terms of the offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount, commission and
other item constituting compensation, any discount, commission or concession
allowed or reallowed or paid to any dealer, and the proposed selling price to
the public.
Neither
the Series A Preferred Stock nor the Warrant is listed on any exchange. Unless
requested by the Treasury, we do not intend to list the Series A Preferred Stock
on any securities exchange. We do not intend to list the Warrant on any
exchange. No assurance can be given as to the liquidity of the trading market,
if any, for the Series A Preferred Stock.
We have
agreed to indemnify the Selling Securityholders against certain liabilities,
including certain liabilities under the Securities Act. We have also agreed,
among other things, to bear substantially all expenses (other than underwriting
discounts and selling commissions) in connection with the registration and sale
of the securities covered by this prospectus.
On
January 9, 2009, we issued the securities covered by this prospectus to the
Treasury, which is the initial selling securityholder under this prospectus, in
a transaction exempt from the registration requirements of the Securities Act.
The Treasury, or its successors, including transferees, may from time to time
offer and sell, pursuant to this prospectus or a supplement to this prospectus,
any or all of the securities they own. The securities to be offered under this
prospectus for the account of the Selling Securityholders are:
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28,000 shares of Series A
Preferred Stock, representing beneficial ownership of 100% of the shares
of Series A Preferred Stock outstanding on the date of this
prospectus;
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a Warrant to purchase 500,000
shares of our Common Stock, representing beneficial ownership of
approximately 6.5% of our Common Stock as of January 28, 2009;
and
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500,000 shares of our Common
Stock issuable upon exercise of the Warrant, which shares, if issued,
would represent ownership of approximately 6.5% of our Common Stock as of
January 28, 2009.
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For
purposes of this prospectus, we have assumed that, after completion of the
offering, none of the securities covered by this prospectus will be held by the
Selling Securityholders.
Beneficial
ownership is determined in accordance with the rules of the SEC and includes
voting or investment power with respect to the securities. To our knowledge, the
Treasury has sole voting and investment power with respect to the
securities.
We do not
know when or in what amounts the Selling Securityholders may offer the
securities for sale. The Selling Securityholders might not sell any of the
securities offered by this prospectus. Because the Selling Securityholders may
offer all or some of the securities pursuant to this offering, and because
currently no sale of any of the securities is subject to any agreements,
arrangements or understandings, we cannot estimate the number of the securities
that will be held by the Selling Securityholders after completion of the
offering.
Other
than with respect to the acquisition of the securities, the Treasury has not had
a material relationship with us.
Information
about the Selling Securityholders may change over time and changed information
will be set forth in supplements to this prospectus if and when
necessary.
The
following is a brief description of the terms of the Series A Preferred Stock
that may be resold by the Selling Securityholders. This summary does not purport
to be complete in all respects. This description is subject to and qualified in
its entirety by reference to our Certificate of Incorporation, as amended,
including the Certificate of Designations with respect to the Series A Preferred
Stock, copies of which have been filed with the SEC and are also available upon
request from us.
General
Under our
Certificate of Incorporation, as amended, we have authority to issue up to
10,000,000 shares of preferred stock, no par value per share. Of such number of
shares of preferred stock, 28,000 shares have been designated as Series A
Preferred Stock, all of which shares of Series A Preferred Stock were issued to
the Treasury in a transaction exempt from the registration requirements of the
Securities Act. The issued and outstanding shares of Series A Preferred Stock
are validly issued, fully paid and nonassessable. No other shares of preferred
stock are issued and outstanding as of the date hereof.
Dividends
Payable on Shares of Series A Preferred Stock
Holders
of shares of Series A Preferred Stock are entitled to receive if, as and when
declared by our board of directors or a duly authorized committee of the board,
out of assets legally available for payment, cumulative cash dividends at a rate
per annum of 5% per share on a liquidation preference of $1,000 per share of
Series A Preferred Stock with respect to each dividend period from January 9,
2009 to, but excluding, February 15, 2014. From and after February
15, 2014, holders of shares of Series A Preferred Stock are entitled to receive
cumulative cash dividends at a rate per annum of 9% per share on a liquidation
preference of $1,000 per share of Series A Preferred Stock with respect to each
dividend period thereafter.
Dividends
are payable quarterly in arrears on each February 15, May 15, August 15 and
November 15, each a “dividend payment date,” starting with February 15,
2009. If any dividend payment date is not a business day, then the
next business day will be the applicable dividend payment date, and no
additional dividends will accrue as a result of the applicable postponement of
the dividend payment date. Dividends payable during any dividend period are
computed on the basis of a 360-day year consisting of twelve 30-day months.
Dividends payable with respect to the Series A Preferred Stock are payable to
holders of record of shares of Series A Preferred Stock on the date that is 15
calendar days immediately preceding the applicable dividend payment date or such
other record date as the board of directors or any duly authorized committee of
the board determines, so long as such record date is not more than 60 nor less
than 10 days prior to the applicable dividend payment date.
If we
determine not to pay any dividend or a full dividend with respect to the Series
A Preferred Stock, we are required to provide written notice to the holders of
shares of Series A Preferred Stock prior to the applicable dividend payment
date.
Because
we receive substantially all of our revenue from dividends from Colony Bank, our
ability to pay dividends on our common stock or preferred stock depends on our
receipt of dividends from Colony Bank. Dividend payments from Colony
Bank are subject to legal and regulatory limitations, generally based on net
income and retained earnings. The ability of Colony Bank to pay dividends to us
is also subject to its profitability, financial condition, capital expenditures
and other cash flow requirements. In addition, we are subject to Georgia state
laws relating to the payment of dividends.
Priority
of Dividends
With
respect to the payment of dividends and the amounts to be paid upon liquidation,
the Series A Preferred Stock will rank:
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senior
to our Common Stock and all other equity securities designated as ranking
junior to the Series A Preferred Stock;
and
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at
least equally with all other equity securities designated as ranking on a
parity with the Series A Preferred Stock, or parity stock, with respect to
the payment of dividends and distribution upon any liquidation,
dissolution or winding-up of the
Company.
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So long
as any shares of Series A Preferred Stock remain outstanding, unless all accrued
and unpaid dividends for all prior dividend periods have been paid or are
contemporaneously declared and paid in full, no dividend whatsoever shall be
paid or declared on the Common Stock or other junior stock, other than a
dividend payable solely in Common Stock. We and our subsidiaries also may not
purchase, redeem or otherwise acquire for consideration any shares of our Common
Stock or other junior stock unless we have paid in full all accrued dividends on
the Series A Preferred Stock for all prior dividend periods, other
than:
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purchases,
redemptions or other acquisitions of our Common Stock or other junior
stock in connection with the administration of our employee benefit plans
in the ordinary course of business pursuant to a publicly announced
repurchase plan up to the increase in diluted shares outstanding resulting
from the grant, vesting or exercise of equity-based
compensation;
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purchases
or other acquisitions by broker-dealer subsidiaries of the Company solely
for the purpose of market-making, stabilization or customer facilitation
transactions in junior stock or parity stock in the ordinary course of its
business;
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purchases
or other acquisitions by broker-dealer subsidiaries of the Company for
resale pursuant to an offering by the Company of our stock that is
underwritten by the related broker-dealer
subsidiary;
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any
dividends or distributions of rights or junior stock in connection with
any shareholders’ rights plan or repurchases of rights pursuant to any
shareholders’ rights plan;
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acquisition
of record ownership of junior stock or parity stock for the beneficial
ownership of any other person who is not the Company or a subsidiary of
the Company, including as trustee or custodian;
and
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the
exchange or conversion of junior stock for or into other junior stock or
of parity stock for or into other parity stock or junior stock but only to
the extent that such acquisition is required pursuant to binding
contractual agreements entered into before January 9, 2009 or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for Common Stock.
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If we
repurchase shares of Series A Preferred Stock from a holder other than the
Treasury, we must offer to repurchase a ratable portion of the Series A
Preferred Stock then held by the Treasury.
On any
dividend payment date for which full dividends are not paid, or declared and
funds set aside therefor, on the Series A Preferred Stock and any other parity
stock, all dividends paid or declared for payment on that dividend payment date
(or, with respect to parity stock with a different dividend payment date, on the
applicable dividend date therefor falling within the dividend period and related
to the dividend payment date for the Series A Preferred Stock), with respect to
the Series A Preferred Stock and any other parity stock shall be declared
ratably among the holders of any such shares who have the right to receive
dividends, in proportion to the respective amounts of the undeclared and unpaid
dividends relating to the dividend period.
Subject
to the foregoing, such dividends (payable in cash, stock or otherwise) as may be
determined by our board of directors, or a duly authorized committee of the
board, may be declared and paid on our Common Stock and any other stock ranking
equally with or junior to the Series A Preferred Stock from time to time out of
any funds legally available for such payment, and the Series A Preferred Stock
shall not be entitled to participate in any such dividend.
Redemption
The
Series A Preferred Stock may not be redeemed prior to February 15, 2012, unless
we have received aggregate gross proceeds from one or more qualified equity
offerings (as described below) equal to $7.00 million, which equals 25% of the
aggregate liquidation amount of the Series A Preferred Stock on the date of
issuance. In such a case, we may redeem the Series A Preferred Stock, subject to
the approval of the Board of Governors of the Federal Reserve System, or FRB, in
whole or in part, upon notice as described below, up to a maximum amount equal
to the aggregate net cash proceeds received by us from such qualified equity
offerings. A “qualified equity offering” is a sale and issuance for cash by us,
to persons other than Colony Bankcorp, Inc. or its subsidiaries after January 9,
2009, of shares of perpetual preferred stock, Common Stock or a combination
thereof, that in each case qualifies as tier 1 capital of Colony Bankcorp, Inc.
at the time of issuance under the applicable risk-based capital guidelines of
the FRB. Qualified equity offerings do not include issuances made in connection
with acquisitions, issuances of trust preferred securities and issuances of
Common Stock and/or perpetual preferred stock made pursuant to agreements or
arrangements entered into, or pursuant to financing plans that were publicly
announced, on or prior to October 13, 2008.
After
February 15, 2012, the Series A Preferred Stock may be redeemed at any time,
subject to the approval of the FRB, in whole or in part, subject to notice as
described below.
In any
redemption, the redemption price is an amount equal to the per share liquidation
amount plus accrued and unpaid dividends to but excluding the date of
redemption.
The
Series A Preferred Stock will not be subject to any mandatory redemption,
sinking fund or similar provisions. Holders of shares of Series A Preferred
Stock have no right to require the redemption or repurchase of the Series A
Preferred Stock. Our board of directors, or a duly authorized committee of the
board of directors, has full power and authority to prescribe the terms and
conditions upon which the Series A Preferred Stock will be redeemed from time to
time, subject to the provisions the Certificate of Designations.
If fewer
than all of the outstanding shares of Series A Preferred Stock are to be
redeemed, the shares to be redeemed will be selected either pro rata from the holders of
record of shares of Series A Preferred Stock in proportion to the number of
shares held by those holders or in such other manner as our board of directors
or a duly authorized committee thereof may determine to be fair and
equitable.
We will
mail notice of any redemption of Series A Preferred Stock by first class mail,
postage prepaid, addressed to the holders of record of the shares of Series A
Preferred Stock to be redeemed at their respective last addresses appearing on
our books. This mailing will be at least 30 days and not more than 60 days
before the date fixed for redemption. Any notice mailed or otherwise given as
described in this paragraph will be conclusively presumed to have been duly
given, whether or not the holder receives the notice, and failure duly to give
the notice by mail or otherwise, or any defect in the notice or in the mailing
or provision of the notice, to any holder of Series A Preferred Stock designated
for redemption will not affect the redemption of any other Series A Preferred
Stock. Each notice of redemption will set forth the applicable redemption date,
the redemption price, the place where shares of Series A Preferred Stock are to
be redeemed, and the number of shares of Series A Preferred Stock to be redeemed
(and, if less than all shares of Series A Preferred Stock held by the applicable
holder, the number of shares to be redeemed from the holder).
Shares of
Series A Preferred Stock that are redeemed, repurchased or otherwise acquired by
us will revert to authorized but unissued shares of our preferred
stock.
Liquidation
Rights
In the
event that we voluntarily or involuntarily liquidate, dissolve or wind up our
affairs, holders of Series A Preferred Stock will be entitled to receive an
amount per share, referred to as the total liquidation amount, equal to the
fixed liquidation preference of $1,000 per share, plus any accrued and unpaid
dividends, whether or not declared, to the date of payment. Holders of the
Series A Preferred Stock will be entitled to receive the total liquidation
amount out of our assets that are available for distribution to shareholders,
after payment or provision for payment of our debts and other liabilities but
before any distribution of assets is made to holders of our Common Stock or any
other shares ranking, as to that distribution, junior to the Series A Preferred
Stock.
If our
assets are not sufficient to pay the total liquidation amount in full to all
holders of Series A Preferred Stock and all holders of any shares of outstanding
parity stock, the amounts paid to the holders of Series A Preferred Stock and
other shares of parity stock will be paid pro rata in accordance with
the respective total liquidation amount for those holders. If the total
liquidation amount per share of Series A Preferred Stock has been paid in full
to all holders of Series A Preferred Stock and other shares of parity stock, the
holders of our Common Stock or any other shares ranking, as to such
distribution, junior to the Series A Preferred Stock will be entitled to receive
all of our remaining assets according to their respective rights and
preferences.
For
purposes of the liquidation rights, neither the sale, conveyance, exchange or
transfer of all or substantially all of our property and assets, nor the
consolidation or merger by us with or into any other corporation or by another
corporation with or into us, will constitute a liquidation, dissolution or
winding-up of our affairs.
Voting
Rights
Except as
indicated below or otherwise required by law, the holders of Series A Preferred
Stock will not have any voting rights.
Election of Two Directors upon
Non-Payment of Dividends. If the dividends on the Series A Preferred
Stock have not been paid for an aggregate of six quarterly dividend periods or
more (whether or not consecutive), the authorized number of directors then
constituting our board of directors will be increased by two. Holders of Series
A Preferred Stock, together with the holders of any outstanding parity stock
with like voting rights, referred to as voting parity stock, voting as a single
class, will be entitled to elect the two additional members of our board of
directors, referred to as the “preferred stock directors,” at the next annual
meeting (or at a special meeting called for the purpose of electing the
preferred stock directors prior to the next annual meeting) and at each
subsequent annual meeting until all accrued and unpaid dividends for all past
dividend periods have been paid in full. Upon payment in full of all accrued and
unpaid dividends, the right to elect preferred stock directors will terminate,
subject to revesting in the event that dividends on the Series A Preferred Stock
are not paid for an aggregate of six quarterly dividend payments. The election
of any preferred stock director is subject to the qualification that the
election would not cause us to violate the corporate governance requirement of
the Nasdaq Stock Market (or any other exchange on which our securities may be
listed) that listed companies must have a majority of independent
directors.
Upon the
termination of the right of the holders of Series A Preferred Stock and voting
parity stock to vote for preferred stock directors, as described above, the
preferred stock directors will immediately cease to be qualified as directors,
their term of office shall terminate immediately and the number of authorized
directors of Colony Bankcorp, Inc. will be reduced by the number of preferred
stock directors that the holders of Series A Preferred Stock and voting parity
stock had been entitled to elect. The holders of a majority of shares of Series
A Preferred Stock and voting parity stock, voting as a class, may remove any
preferred stock director, with or without cause, and the holders of a majority
of the shares of Series A Preferred Stock and voting parity stock, voting as a
class, may fill any vacancy created by the removal of a preferred stock
director. If the office of a preferred stock director becomes vacant for any
other reason, the remaining preferred stock director may choose a successor to
fill such vacancy for the remainder of the unexpired term.
Other Voting Rights. So long
as any shares of Series A Preferred Stock are outstanding, in addition to any
other vote or consent of shareholders required by law or by our Certificate of
Incorporation, as amended, the vote or consent of the holders of at least 66
2/3% of the shares of Series A Preferred Stock at the time outstanding, voting
separately as a single class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
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any amendment or alteration of
our Certificate of Incorporation, as amended to authorize or create or
increase the authorized amount of, or any issuance of, any shares of, or
any securities convertible into or exchangeable or exercisable for shares
of, any class or series of capital stock ranking senior to the Series A
Preferred Stock with respect to payment of dividends and/or distribution
of assets on any liquidation, dissolution or winding up of the
Company;
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any amendment, alteration or
repeal of any provision of the Certificate of Designations for the Series
A Preferred Stock so as to adversely affect the rights, preferences,
privileges or voting powers of the Series A Preferred Stock;
or
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any consummation of a binding
share exchange or reclassification involving the Series A Preferred Stock
or of a merger or consolidation of the Company with another entity, unless
the shares of Series A Preferred Stock remain outstanding following any
such transaction or, if the Company is not the surviving entity, are
converted into or exchanged for preference securities and such remaining
outstanding shares of Series A Preferred Stock or preference securities
have rights, references, privileges and voting powers that are not
materially less favorable than the rights, preferences, privileges or
voting powers of the Series A Preferred Stock, taken as a
whole.
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To the
extent of the voting rights of the Series A Preferred Stock, each holder of
Series A Preferred Stock will have one vote for each $1,000 of liquidation
preference to which such holder’s shares of Series A Preferred Stock are
entitled.
The
foregoing voting provisions will not apply if, at or prior to the time when the
vote or consent would otherwise be required, all outstanding shares of Series A
Preferred Stock have been redeemed or called for redemption upon proper notice
and sufficient funds have been set aside by us for the benefit of the holders of
Series A Preferred Stock to effect the redemption.
Remaining
Shares of Preferred Stock
The
remaining 9,972,000 unissued shares of preferred stock are typically referred to
as “blank check” preferred stock. This term refers to stock for which the rights
and restrictions are determined by the board of directors of a corporation.
Except in limited circumstances, our articles of incorporation authorize our
board of directors to issue new shares of our common stock or preferred stock
without further shareholder action.
Our
articles of incorporation give the board of directors authority at any time
to:
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divide
the remaining authorized but unissued shares of preferred stock into
series;
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determine
the designations, number of shares, relative rights, preferences and
limitations of any series of preferred
stock;
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increase
the number of shares of any preferred series;
and
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decrease
the number of shares of a preferred series, but not to a number less than
the number of shares outstanding.
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The
issuance of additional common stock or preferred stock may be viewed as having
adverse effects upon the holders of common stock. Holders of our common stock
will have no preemptive rights with respect to any newly issued stock. Our board
of directors could adversely affect the voting powers of holders of our stock by
issuing shares of preferred stock with certain voting, conversion and/or
redemption rights. In the event of a proposed merger, tender offer or other
attempt to gain control of Colony that the board of directors does not believe
to be in the best interest of Colony’s shareholders, the board could issue
additional preferred stock which could make any such takeover attempt more
difficult to complete. Blank check preferred stock may also be used in
connection with the issuance of a shareholder rights plan, sometimes called a
poison pill. Our board of directors has not approved any plan to issue preferred
stock for this purpose. Our board of directors does not intend to issue any
preferred stock except on terms that the board deems to be in the best interests
of Colony and its shareholders
The
following is a brief description of the terms of the Warrant that may be resold
by the Selling Securityholders. This summary does not purport to be complete in
all respects. This description is subject to and qualified in its entirety by
reference to the Warrant, a copy of which has been filed with the SEC and is
also available upon request from us.
Shares
of Common Stock Subject to the Warrant
The
Warrant is initially exercisable for 500,000 shares of our Common Stock. If we
complete one or more qualified equity offerings on or prior to December 31,
2009, that result in our receipt of aggregate gross proceeds of not less than
$28 million, which is equal to 100% of the aggregate liquidation preference of
the Series A Preferred Stock, the number of shares of Common Stock underlying
the Warrant then held by the Selling Securityholders will be reduced by 50% to
250,000 shares. The number of shares subject to the Warrant are subject to the
further adjustments described below under the heading “Adjustments to the
Warrant.”
Exercise
of the Warrant
The
initial exercise price applicable to the Warrant is $8.40 per share of Common
Stock for which the Warrant may be exercised. The Warrant may be exercised at
any time on or before January 9, 2019 by surrender of the Warrant and a
completed notice of exercise attached as an annex to the Warrant and the payment
of the exercise price for the shares of Common Stock for which the Warrant is
being exercised. The exercise price may be paid either by the withholding by
Colony Bankcorp, Inc. of such number of shares of Common Stock issuable upon
exercise of the Warrant equal to the value of the aggregate exercise price of
the Warrant determined by reference to the market price of our Common Stock on
the trading day on which the Warrant is exercised or, if agreed to by us and the
holder of the Warrant, by the payment of cash equal to the aggregate exercise
price. The exercise price applicable to the Warrant is subject to the further
adjustments described below under the heading “Adjustments to the
Warrant.”
Upon
exercise of the Warrant, certificates for the shares of Common Stock issuable
upon exercise will be issued to the warrantholder. We will not issue fractional
shares upon any exercise of the Warrant. Instead, the warrantholder will be
entitled to a cash payment equal to the market price of our Common Stock on the
last day preceding the exercise of the Warrant (less the pro-rated exercise
price of the Warrant) for any fractional shares that would have otherwise been
issuable upon exercise of the Warrant. We will at all times reserve the
aggregate number of shares of our Common Stock for which the Warrant may be
exercised. We have listed the shares of Common Stock issuable upon exercise of
the Warrant with the Nasdaq Stock Market.
Rights
as a Stockholder
The
warrantholder shall have no rights or privileges of the holders of our Common
Stock, including any voting rights, until (and then only to the extent) the
Warrant has been exercised.
Transferability
The
Treasury may not transfer a portion of the Warrant with respect to more than
250,000 shares of Common Stock until the earlier of the date on which Colony
Bankcorp, Inc. has received aggregate gross proceeds from a qualified equity
offering of at least $28 million or December 31, 2009. The Warrant,
and all rights under the Warrant, are otherwise transferable.
Adjustments
to the Warrant
Adjustments in Connection with Stock
Splits, Subdivisions, Reclassifications and Combinations. The number of
shares for which the Warrant may be exercised and the exercise price applicable
to the Warrant will be proportionately adjusted in the event we pay dividends or
make distributions of our Common Stock, subdivide, combine or reclassify
outstanding shares of our Common Stock.
Anti-dilution Adjustment.
Until the earlier of January 9, 2012 or the date the Treasury no longer holds
the Warrant (and other than in certain permitted transactions described below),
if we issue any shares of Common Stock (or securities convertible or exercisable
into Common Stock) for less than 90% of the market price of the Common Stock on
the last trading day prior to pricing such shares, then the number of shares of
Common Stock into which the Warrant is exercisable and the exercise price will
be adjusted. Permitted transactions include issuances:
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as consideration for or to fund
the acquisition of businesses and/or related
assets;
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in connection with employee
benefit plans and compensation related arrangements in the ordinary course
and consistent with past practice approved by our board of
directors;
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in connection with public or
broadly marketed offerings and sales of Common Stock or convertible
securities for cash conducted by us or our affiliates pursuant to
registration under the Securities Act, or Rule 144A thereunder on a basis
consistent with capital-raising transactions by comparable financial
institutions (but do not include other private transactions);
and
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in connection with the exercise
of preemptive rights on terms existing as of January 9,
2009.
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Other Distributions. If we
declare any dividends or distributions other than our historical, ordinary cash
dividends, the exercise price of the Warrant will be adjusted to reflect such
distribution.
Certain Repurchases. If we
effect a pro rata
repurchase of Common Stock, both the number of shares issuable upon exercise of
the Warrant and the exercise price will be adjusted.
Business Combinations. In the
event of a merger, consolidation or similar transaction involving Colony
Bankcorp, Inc. and requiring shareholder approval, the warrantholder’s right to
receive shares of our Common Stock upon exercise of the Warrant shall be
converted into the right to exercise the Warrant for the consideration that
would have been payable to the warrantholder with respect to the shares of
Common Stock for which the Warrant may be exercised as if the Warrant had been
exercised prior to such merger, consolidation or similar
transaction.
General
The
following is a brief description of our Common Stock that may be resold by the
Selling Securityholders. This summary does not purport to be complete in all
respects. This description is subject to and qualified in its entirety by
reference to our Certificate of Incorporation, as amended, and Amended and
Restated Bylaws, copies of which have been filed with the SEC and are also
available upon request from us.
We have
20,000,000 shares of authorized Common Stock, of which 7,231,163 were
outstanding as of January 28, 2009.
Holders
of our Common Stock are entitled to receive dividends if, as and when declared
by our board of directors out of any funds legally available for dividends.
Holders of our Common Stock are also entitled, upon our liquidation, and after
claims of creditors and the preferences of Series A Preferred Stock, and any
other class or series of preferred stock outstanding at the time of liquidation,
to receive pro rata our
net assets, if any. We pay dividends on our Common Stock only if we have paid or
provided for all dividends on our outstanding series of preferred stock, for the
then current period and, in the case of any cumulative preferred stock, all
prior periods.
Our
Series A Preferred Stock has, and any other series of preferred stock upon
issuance will have, preference over our Common Stock with respect to the payment
of dividends and the distribution of assets in the event of our liquidation or
dissolution. Our preferred stock also has such other preferences as currently,
or as may be, fixed by our board of directors.
Holders
of our Common Stock are entitled to one vote for each share that they hold and
are vested with all of the voting power of Colony Bankcorp, Inc. except to the
extent that our board of directors has provided, or may provide in the future,
voting rights to holders of preferred stock or any other class or series of
preferred stock that the board of directors may hereafter authorize. Shares of
our Common Stock are not redeemable, and have no subscription, conversion,
preemptive or sinking fund rights.
Our
Common Stock is listed on the Nasdaq Stock Market. Outstanding shares of our
Common Stock are validly issued, fully paid and non-assessable. Holders of our
Common Stock are not, and will not be, subject to any liability as
shareholders.
Transfer
Agent and Registrar
The
transfer agent and registrar for our Common Stock is American Stock
Transfer.
Restrictions
on Ownership
The Bank
Holding Company Act requires any “bank holding company,” as defined in the Bank
Holding Company Act, to obtain the approval of the Federal Reserve Board prior
to the acquisition of 5% or more of our common stock. Any person,
other than a bank holding company, is required to obtain prior approval of the
Federal Reserve Board to acquire 10% or more of our common stock under the
Change in Bank Control Act. Any holder of 25% or more of our common
stock, or a holder of 5% or more if such holder otherwise exercises a
“controlling influence” over us, is subject to regulation as a bank holding
company under the Bank Holding Company Act.
The
validity of the securities being offered by this prospectus will be passed upon
for us by Martin Snow, LLP.
The
consolidated financial statements of Colony Bankcorp, Inc. as of December 31,
2007, and 2006 and for each of the years in the three-year period ended December
31, 2007, have been incorporated by reference in this prospectus in reliance
upon the reports of McNair, McLemore, Middlebrooks & Co., LLP, independent
registered public accounting firm, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and
auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses
of Issuance and Distribution.
The
following table sets forth the estimated fees and expenses to be incurred by the
Company in connection with the registration of the securities being registered
under this registration statement. Except for the SEC registration
fee, all amounts are estimates.
|
SEC
registration fee
|
|
$
|
1,266
|
|
|
Legal
fees and expenses
|
|
$
|
10,000
|
|
|
Accounting
fees and expenses
|
|
$
|
5,000
|
|
|
Miscellaneous
fees and expenses
|
|
$
|
2,500
|
|
|
Total
|
|
$
|
18,696
|
|
Item
15. Indemnification of
Directors and Officers.
Subsection
(a) of Section 14-2-851 of the Georgia Business Corporation Code (the ACode@)
provides that a corporation may indemnify an individual made a party to a
proceeding because he is or was a director against liability incurred in the
proceeding if such individual conducted himself in good faith and such
individual reasonably believed, in the case of conduct in an official capacity,
that such conduct was in the best interests of the corporation and, in all other
cases, that such conduct was at least not opposed to the best interests of the
corporation and, in the case of any criminal proceeding, such individual had no
reasonable cause to believe such conduct was unlawful. Subsection (d) of Section
14-2-851 of the Code 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 under
Section 14-2-851 of the Code or in connection with any proceeding with respect
to conduct for which he was adjudged liable on the basis that personal benefit
was improperly received by him.
Notwithstanding
the foregoing, pursuant to Section 14-2-854 of the Code a court may order a
corporation to indemnify a director or advance expenses if such court determines
that the director is entitled to indemnification under the Code or that it is
fair and reasonable to indemnify such director in view of all the relevant
circumstances, even if such director has not met the standard of conduct set
forth in Section 14-2-851 of the Code, failed to comply with Section 14-2-853 of
the Code or was adjudged liable according to Section 14-2-851 of the
Code. However, if such director was adjudged liable, the
indemnification shall be limited to reasonable expenses incurred in connection
with the proceeding. If the court orders indemnification and/or
advance of expenses pursuant to Section 14-2-854 of the Code, the court may also
order the corporation to pay the director's reasonable expenses in obtaining the
court-ordered indemnification or advance of expenses.
Section
14-2-852 of the Code provides that if a director has been wholly successful, on
the merits or otherwise, in the defense of any proceeding to which he was a
party, because he or she is or was a director of the corporation, the
corporation shall indemnify the director against reasonable expenses incurred by
the director in connection therewith.
Section 14-2-857 of the Code 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 and if he or she is not a
director to such further extent as may be provided in its articles of
incorporation, bylaws, a resolution of its board of directors or a contract
except for liability arising out of conduct that constitutes: (i) appropriation
of any business opportunity of the corporation in violation of his duties; (ii)
acts or omissions which involve intentional misconduct or a knowing violation of
law; (iii) receipt of an improper personal benefit; or (iv) making distributions
in violation of Section 14-2-640 of the Code. Section 14-2-857 of the Code also
provides that an officer of the corporation who is not a director is entitled to
mandatory indemnification under Section 14-2-852 and is entitled to apply for
court-ordered indemnification or advances for expenses under Section 14-2-854,
in each case to the same extent as a director. In addition, Section
14-2-857 provides that a corporation may also indemnify and advance expenses to
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, bylaws, action of
its board of directors or by contract.
Section 14-2-858 of the Code provides
that a corporation may purchase and maintain on behalf of a director, officer,
employee or agent of a corporation insurance against liability asserted against
or incurred by that person serving in such capacity for the corporation or
arising from his status.
Section 9.1 of the Registrant's Bylaws
(the ABylaws@)
provides that any person, his heirs, executors, or administrators, may be
indemnified or reimbursed by the corporation for reasonable expense actually
incurred in connection with any action, suit or proceeding, civil or criminal,
to which he shall be made a party by reason of the fact that he is or was a
director, trustee, officer, employee, or agent of the corporation, or that he is
or was serving, at the request of the corporation, trust or other organization
or enterprise; provided; however, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit or proceeding as to
which he shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct or criminal acts in the performance of his duties
to the corporation, or to such other firm, corporation, trust, organization, or
enterprise; and provided further, that no person shall be so indemnified or
reimbursed in relation to any matter in such action, suit, or proceeding which
has been in the subject of a compromise settlement, except with the approval of
(i) a court of competent jurisdiction, (ii) the holders of record of a majority
of the outstanding shares of capital stock of the corporation, or (iii) a
majority of the members of the Board of Directors then holding office, excluding
the votes of any directors who are parties to the same or substantially the same
action, suit or proceeding.
Section 9.2 of the Bylaws provides that
expenses incurred in defending any action, suit or proceeding referred to above
may be paid by the corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of the director,
trustee, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as provided above.
Section 9.3 of the Bylaws provides that
the corporation may purchase and maintain on behalf of a director, officer,
employee or agent of the corporation insurance against liability asserted
against or incurred by that person serving in such capacity for the corporation
or arising from his status with the corporation whether or not the corporation
would have the power to indemnify that person under the Bylaws.
Item
16. Exhibits.
See the
Exhibit Index, which is incorporated into this registration statement by
reference.
Item
17. Undertakings.
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 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. 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
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 20 percent
change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
and
(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 subparagraphs
(1)(i), (1)(ii), and (1)(iii) above do not apply if information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of 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 herein, 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which the prospectus related, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule
424;
(ii) any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) the
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv)
any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(6) 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 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.
(7) 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 Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
AND POWER OF ATTORNEY
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, on January 30,
2009.
| |
|
COLONY
BANKCORP,INC. |
| |
|
|
|
|
By:
|
/s/
Terry L. Hester
|
|
|
Terry
L. Hester
|
|
|
Executive
Vice President and Chief Financial
Officer
|
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Al D. Ross and Terry L. Hester, or either of them,
severally, as his or her attorney-in-fact and agent, 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 pre-effective and
post-effective amendments to this registration statement, and to file the same
with all exhibits hereto, and all other documents in connection herewith, with
the SEC, granting unto said attorney-in-fact and agent, and either of them, full
power and authority to do and perform each and every act and thing requisite or
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 their, his or her
substitutes, 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 by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/
Al D. Ross
|
|
President
and Chief Executive Officer
|
|
January
30, 2009
|
|
Al
D. Ross
|
|
(Principal
Executive and Operating Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Terry L. Hester
|
|
Executive
Vice President and Chief Financial
|
|
January
30, 2009
|
|
Terry
L. Hester
|
|
Officer
(Principal Financial and Accounting
|
|
|
|
|
|
Officer
|
|
|
|
|
|
|
|
|
|
/s/ Terry Coleman
|
|
Director
|
|
January
30, 2009
|
|
Terry
Coleman
|
|
|
|
|
|
|
|
|
|
|
|
/s/ L. Morris Downing
|
|
Director
|
|
January
30, 2009
|
|
L.
Morris Downing
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Edward J. Harrell
|
|
Director
|
|
January
30, 2009
|
|
Edward
J. Harrell
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Mark H. Massee
|
|
Director
|
|
January
30, 2009
|
|
Mark
H. Massee
|
|
|
|
|
|
|
|
|
|
|
|
/s/ James D. Minix
|
|
Director
|
|
January
30, 2009
|
|
James
D. Minix
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Charles E. Myler
|
|
Director
|
|
January
30, 2009
|
|
Charles
E. Myler
|
|
|
|
|
|
|
|
|
|
|
|
/s/ W. B. Roberts, Jr.
|
|
Director
|
|
January
30, 2009
|
|
W.
B. Roberts, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Jonathan W. R. Ross
|
|
Director
|
|
January
30, 2009
|
|
Jonathan
W. R. Ross
|
|
|
|
|
|
|
|
|
|
|
|
/s/ B. Gene Waldron
|
|
Director
|
|
January
30, 2009
|
|
B.
Gene Waldron
|
|
|
|
|
EXHIBIT
INDEX
|
Exhibit
No.
|
|
|
|
Description
|
|
|
|
|
|
|
|
4.1
|
|
—
|
|
Articles
of Incorporation of Colony Bankcorp, Inc. (filed as Exhibit 3(a) to the
Registrant’s Registration Statement on Form 10, filed with the SEC on
April 25, 1990), and incorporated herein by reference.
|
|
|
|
|
|
|
|
4.2
|
|
—
|
|
Bylaws,
as amended, of Colony Bankcorp, Inc. (filed as Exhibit 3(b) to the
Registrant’s Registration Statement on Form 10, filed with the SEC on
April 25, 1990), and incorporated herein by reference.
|
|
|
|
|
|
|
|
4.3
|
|
—
|
|
Articles
of Amendment to the Articles of Incorporation of Colony Bankcorp, Inc.
(filed on Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed
with the SEC on January 13, 2009), and incorporated herein by
reference.
|
|
|
|
|
|
|
|
4.4
|
|
—
|
|
Articles
of Amendment of Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
dated January 9, 2009 (filed as Exhibit 3.2 to the Registrant’s Current
Report on Form 8-K filed with the SEC on January 13, 2009), and
incorporated herein by reference.
|
|
|
|
|
|
|
|
4.5
|
|
—
|
|
Warrant
to Purchase Common Stock, dated January 9, 2009 (filed as Exhibit 4.1 to
the Registrant’s Current Report on Form 8-K filed with the SEC on January
13, 2009), and incorporated herein by reference.
|
|
|
|
|
|
|
|
4.6
|
|
—
|
|
Form
of Series A Preferred Stock Certificate (filed as Exhibit 4.2 to the
Registrant’s Current Report on Form 8-K filed with the SEC on January 13,
2009), and incorporated herein by reference.
|
|
|
|
|
|
|
|
4.7
|
|
—
|
|
Letter
Agreement, dated January 9, 2009, including Securities Purchase
Agreement—Standard Terms incorporated by reference therein, between the
Registrant and the United States Department of the Treasury (filed as
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the
SEC on January 13, 2009), and incorporated herein by
reference.
|
|
|
|
|
|
|
|
|
|
—
|
|
Opinion
of Martin Snow, LLP.
|
|
|
|
|
|
|
|
|
|
—
|
|
Consent
of McNair, McLemore, Middlebrooks & Co., LLP, independent registered
public accounting firm.
|
|
|
|
|
|
|
|
23.2**
|
|
—
|
|
Consent
of Martin Snow, LLP (included in Exhibit 5.1).
|
|
|
|
|
|
|
|
24.1**
|
|
—
|
|
Powers
of Attorney (included in signature
pages).
|