forms3a.htm
As
filed with the Securities and Exchange Commission on February 19,
2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
PRE-EFFECTIVE
AMENDMENT NO. 1 to
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Colony
Bankcorp, Inc.
(Exact
Name of Registrant as Specified in its Charter)
|
Georgia
|
58-1492391
|
|
(State
or Other Jurisdiction of Incorporation or Organization)
|
(I.R.S.
Employer Identification
Number)
|
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. q
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. q
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. q
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. q
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. q
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. q
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):
|
Large
accelerated filer q
|
Accelerated
filer x
|
Non-accelerated
filer q
|
Smaller
reporting company q
|
|
|
|
(Do
not check if a smaller reporting company)
|
|
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of Securities to be registered
|
|
Amount
to be
registered
|
|
|
Proposed
maximum aggregate offering price per share
|
|
|
Proposed
maximum aggregate offering price
|
|
|
Amount
of registration fee
|
|
|
Common
Stock, par value $1.00 per share, and underlying shares of Warrant to
Purchase Common Stock 1
|
|
|
500,000 |
|
|
$ |
8.40 |
|
|
$ |
4,200,0002 |
|
|
$ |
165 |
|
|
Total
|
|
|
500,000 |
|
|
$ |
8.40 |
|
|
$ |
4,200,000 |
|
|
$ |
1653 |
|
1 The
shares of common stock being registered include: (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. Pursuant to Rule 457(g), no additional fee is payable for
the Warrant.
2
Calculated in accordance with Rule 457(i) with respect to the per share exercise
price of the warrant of $8.40.
3
Previously paid.
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 o sale is not
permitted.
The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
future amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said section 8(a)
may determine.
Subject
to Completion
DATED
FEBRUARY ___, 2009
PROSPECTUS
Colony
Bankcorp, Inc.
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 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 Warrant
and the shares of Common Stock issuable upon exercise of the Warrant,
collectively, as the “Securities.” The Warrant was 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.
The Warrant is not listed on any
exchange, and, unless requested by the Treasury, 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.
The securities are not deposits or
account 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 February ___, 2009
|
|
Page
|
|
|
|
|
|
1
|
|
|
1
|
|
|
1
|
|
|
2
|
|
|
4
|
|
|
4
|
|
|
5
|
|
|
5
|
|
|
7
|
|
|
7
|
|
|
8
|
|
|
9
|
|
|
10
|
|
|
10
|
|
|
10
|
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:
|
|
•
|
Our
Quarterly Report on Form 10-Q for the quarter ended September 30,
2008;
|
|
|
•
|
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
|
|
|
•
|
the
description of our Common Stock contained in our Registration Statement on
Form S-4 filed with the SEC on December 28,
2001.
|
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, but we will receive
the exercise price upon exercise of the Warrant if exercised for
cash. We will use the proceeds from the exercise of the Warrant, if
any, for working capital and general corporate purposes.
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:
|
|
•
|
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;
|
|
|
•
|
in
the over-the-counter market;
|
|
|
•
|
in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
|
|
|
•
|
through
the writing of options, whether the options are listed on an options
exchange or otherwise.
|
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:
|
|
•
|
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
|
|
|
•
|
500,000
shares of our Common Stock issuable upon exercise of the Warrant, which
share, if issued, would represent ownership of approximately 6.5% of our
Common Stock as of January 28,
2009.
|
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.
SUMMARY OF THE 2009 PRIVATE PLACEMENT
On October 14, 2008, the U.S.
Department of the Treasury (the “Treasury”) announced a voluntary Troubled Asset
Relief Program Capital Purchase Program (the “TARP Program”) to provide U.S.
financial institutions with the opportunity to raise additional
capital. Under the TARP Program, the Treasury would provide capital
to U.S. financial institutions in exchange for senior preferred
stock.
On January 9, 2009, pursuant to the
TARP program, we sold to the Treasury 28,000 shares of our Series A Preferred
Stock for an aggregate purchase price of $28.0 million and concurrently issued
to the Treasury a ten-year Warrant to purchase up to 500,000 shares of our
Common Stock at an exercise price of $8.40 per share. The issuance of
the Series A Preferred Stock and the Warrant were completed in a private
placement to the Treasury exempt from the registration requirements of the
Securities Act pursuant to the terms of a Letter Agreement, dated January 9,
2009 which incorporates the provisions of a Securities Purchase Agreement –
Standard Terms attached thereto (collectively with the Letter Agreement, the
“Purchase Agreement”). We are required under the terms of the
Purchase Agreement to register for resale the shares of the Series A Preferred
Stock, the Warrant and the shares of our Common Stock underlying the Warrant on
the condition that we are eligible to register these securities on Form S-3 as
of the signing date of the Purchase Agreement. The Series A Preferred
Stock was not eligible for registration on Form S-3 on January 9, 2009 and,
therefore, this registration statement relates solely to the Warrant and the
shares of Common Stock issuable upon exercise of the Warrant. The
terms of the Warrant and our Common Stock are described under “DESCRIPTION OF
WARRANT” and “DESCRIPTION OF COMMON STOCK.” The Purchase Agreement
between us and the Treasury was attached as Exhibit 10.1 to our Current Report
on Form 8-K filed with the Securities and Exchange Commission on January 13,
2009 and incorporated into this prospectus by reference. See “WHERE
TO FIND MORE INFORMATION.”
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:
|
|
•
|
as
consideration for or to fund the acquisition of businesses and/or related
assets;
|
|
|
•
|
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;
|
|
|
•
|
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
|
|
|
•
|
in
connection with the exercise of preemptive rights on terms existing as of
January 9, 2009.
|
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.
Restriction
and 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.
Please refer to the Company’s Current
Report on Form 8-K as filed with the SEC on January 13, 2009 for a description
of our Series A Preferred Stock, including the rights, preferences, privileges
and restrictions of the Series A Preferred Stock, the Articles of Amendment of
Fixed Rate Cumulative Perpetual Preferred Stock, Series A, filed as Exhibit 3.2
and the Form of Series A Preferred Stock Certificate filed as Exhibit 4.2
thereto.
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
|
|
$ |
165 |
|
|
Legal
fees and expenses
|
|
$ |
10,000 |
|
|
Accounting
fees and expenses
|
|
$ |
5,000 |
|
|
Miscellaneous
fees and expenses
|
|
$ |
2,500 |
|
|
Total
|
|
$ |
17,595 |
|
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
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 Amendment No. 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, on February 19,
2009.
|
|
COLONY
BANKCORP, INC.
|
|
|
|
|
|
|
By:
|
/s/ Terry L. Hester
|
|
|
|
Terry
L. Hester
|
|
|
|
Executive
Vice President and Chief Financial
Officer
|
Pursuant to the requirements of the
Securities Act of 1933, this Amendment Nos. to the Registration Statement has
been signed by the following persons in the capacities indicated on February 19,
2009.
|
|
|
Signature
|
|
Title
|
|
|
|
|
|
|
|
|
|
/s/ Al D. Ross
|
|
President
and Chief Executive Officer and Director
|
|
|
|
Al
D. Ross
|
|
(Principal
Executive and Operating Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Terry L. Hester
|
|
Executive
Vice President and Chief Financial Officer
|
|
|
|
Terry
L. Hester
|
|
(Principal
Financial and Accounting Officer) and Director
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
Terry
Coleman
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
L.
Morris Downing
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
Edward
J. Harrell
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
Mark
H. Massee
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
James
D. Minix
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
Charles
E. Myler
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
W.
B. Roberts, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
Jonathan
W. R. Ross
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
B.
Gene Waldron
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Al D. Ross
|
|
President
and Chief Executive Officer and Director
|
|
|
|
Al
D. Ross
|
|
|
|
|
|
As
Attorney-in-Fact
|
|
|
|
|
|
|
|
|
|
*By:
|
|
/s/ Terry L. Hester
|
|
Executive
Vice President and Chief Financial Officer
|
|
|
|
Terry
L. Hester
|
|
and
Director
|
|
|
|
As
Attorney-in-Fact
|
|
|
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
|
---------
|
Power
of Attorney (previously
filed).
|
**
Filed herewith.