farmers-s3.htm
As
filed with the Securities and Exchange Commission on October 9,
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
FARMERS
CAPITAL BANK CORPORATION
(Exact
name of registrant as specified in its charter)
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Kentucky
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61-1017851
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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P.O.
Box 309
202
W. Main St.
Frankfort,
KY 40602
(502)
227-1668
(Address,
including zip code, and telephone number, including area code, of
registrant’s
principal executive offices)
G.
Anthony Busseni, President and CEO
Farmers
Capital Bank Corporation
P.O.
Box 309
202
W. Main St.
Frankfort,
KY 40602
(502)
227-1614
(Name,
address, including zip code, and telephone number, including
area
code, of agent for service)
Copies
to:
J.
David Smith, Jr., Esq.
Richard H. Mains
Stoll
Keenon Ogden PLLC
300
West Vine Street, Suite 2100
Lexington,
Kentucky 40507
(859)
231-3000
Approximate
date of commencement of proposed sale to the public: from time to time after this
registration statement becomes effective.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. [ ]
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. [
]
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. [ ]
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. [ ]
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. [ ]
________________________________________
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a small reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large
accelerated filer
[ ] Accelerated
Filer [X]
Non-accelerated
filer
[ ] Smaller
reporting company [ ]
(Do not
check if a smaller reporting company)
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
(1)(2)(3)(4)
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Proposed
Maximum
Offering
Price Per
Unit(2)
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Proposed
Maximum
Aggregate
Offering
Price(1)(2)(3)(4)
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Amount
of
Registration
Fee(5)
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Common
Stock, par value $0.125 per share
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Preferred
Stock, no par value
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Depositary
Shares(6)
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Warrants
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Units(7)
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Total
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$35,000,000
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$35,000,000
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$1,953
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(1)
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Does
not include the securities up to a proposed maximum aggregate offering
price of $35,000,000 of Farmers Capital Bank Corporation covered by
Registration Statement No. 333-157143 that are being carried over to this
registration statement. Also does not include the registration
fee of $1,376 that was previously paid with respect to such
securities.
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(2)
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Not
specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3 under the Securities Act of 1933, as
amended (the “Securities
Act”).
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(3)
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The
Registrant is hereby registering an indeterminate principal amount and
number of each identified class of its securities up to a proposed maximum
aggregate offering price of $35,000,000, which may be offered from time to
time in unspecified numbers at unspecified prices. The Registrant has
estimated the proposed maximum aggregate offering price solely for the
purpose of calculating the registration fee pursuant to Rule 457(o) under
the Securities Act. Securities registered hereunder may be sold
separately, together or as units with other securities registered
hereunder.
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(4)
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The
Registrant is hereby registering such indeterminate amount and number of
each identified class of the identified securities as may be issued upon
conversion, exchange, or exercise of any other securities that provide for
such conversion, exchange or
exercise.
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(5)
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Calculated
pursuant to Rule 457(o) under the Securities
Act.
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(6)
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Each
depositary share will be issued under a deposit agreement, will represent
a fractional interest in a share of serial preferred stock, and will be
evidenced by a depositary receipt.
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(7)
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Each
unit will be issued under a unit agreement and will represent an interest
in two or more equity securities, which may or may not be separable from
one another.
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STATEMENT
PURSUANT TO RULE 429(b)
Pursuant
to the provisions of Rule 429 under the Securities Act of 1933, the prospectus
contained in this registration statement also relates to the securities of up to
a maximum aggregate offering price of $35,000,000 registered but not sold under
Farmers Capital Bank Corporation’s registration statement on Form S-3
(Registration No. 333-157143), which became effective on March 6, 2009 (the
“March 6, 2009 Registration Statement”). This registration statement,
which is a new registration statement, also constitutes a post-effective
amendment to the March 6, 2009 Registration Statement. Such
post-effective amendment shall hereafter become effective concurrently with the
effectiveness of this registration statement and in accordance with Section 8(c)
of, and Rule 429 under, the Securities Act.
In the
event that any of such previously registered securities are offered prior to the
effective date of this registration statement, the amount of such securities
will not be included in any prospectus hereunder. The securities of
up to $35,000,000 aggregate offering price being registered pursuant to this
registration statement, together with the securities of up to $35,000,000
aggregate offering price registered under the March 6, 2009 Registration
Statement, represent the securities up to the maximum aggregate offering price
of $70,000,000 that the registrant expects to offer for sale.
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
further amendment that specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
We will amend and complete the information in this prospectus. We may
not sell these securities or accept your offer to buy any of them until
the registration statement filed with the Securities and Exchange
Commission relating to these securities has been declared “effective” by the
Securities and Exchange Commission. This prospectus is not an offer to sell
these securities and we are not soliciting your offer to buy these securities in
any State or other jurisdiction where that would not be permitted or
legal.
Subject
to Completion, dated October 9, 2009
PROSPECTUS
FARMERS
CAPITAL BANK CORPORATION
Common
Stock
Preferred
Stock
Depositary
Shares
Warrants
Units
_______________________
Title,
Amount and Offering Price of Securities. We may offer, issue
and sell from time to time, together or separately, (a) shares of our common
stock, (b) shares of our preferred stock, which we may issue in one or more
series, (c) depositary shares, each representing a fraction of serial preferred
stock, (d) warrants to purchase our common or preferred securities and (e) units
which may include a combination of any of the other offered securities, up to a
maximum aggregate offering price of $70,000,000.
Prospectus
Supplements. We will provide the specific terms of these
securities in supplements to this prospectus. You should read this prospectus
and the accompanying prospectus supplement carefully before you make your
investment decision. This prospectus may not be used to sell
securities unless accompanied by a prospectus supplement or a free writing
prospectus.
Market
and Market Price. Our common stock is listed on the NASDAQ
Global Select Market under the symbol “FFKT.” On October
7, 2009, the closing price of our common stock was $16.24 per
share. Each prospectus supplement will indicate if the securities
offered thereby will be listed on any securities exchange.
Underwriting. We
may offer securities through underwriting syndicates managed or co-managed by
one or more underwriters, or directly to purchasers. The prospectus
supplement for each offering of securities will describe in detail the plan of
distribution for that offering. For general information about the
distribution of securities offered, please see “Plan of Distribution”
on page 19 in this prospectus.
Address
and Telephone Number. Our principal executive office is
located at 202 W.
Main St., Frankfort, Kentucky 40602, and the telephone number is
(502) 227-1668.
Risk
Factors. You should carefully read and consider the risk
factors included on page 1 of this prospectus under the heading “Risk Factors,”
in our Annual Report on Form 10-K for the year ended December 31, 2008, future
periodic reports incorporated into this prospectus, prospectus supplements
relating to specific offerings of securities and in other information that we
file with the Securities and Exchange Commission before you invest in our
securities.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus or
any accompanying prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
________________________
These
securities will be equity securities in Farmers Capital Bank
Corporation. These securities will be unsecured and are not savings
accounts, deposits or other obligations of any of our bank or non-bank
subsidiaries, and are not insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency. These securities involve
investment risks, including possible loss of principal.
_________________________
The date
of this prospectus is _____________ __, 2009
Table
of Contents
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “SEC”) using a “shelf”
registration process. Under this shelf process, we may, from time to
time, sell any combination of the securities described in this prospectus in one
or more offerings, up to a maximum aggregate offering price of
$70,000,000.
This
prospectus provides you with a general description of the securities we may
offer and is not meant to be a complete description of each
security. Each time that securities are sold, a prospectus supplement
that will contain specific information about the terms of that offering will be
provided, including the specific amounts, prices and terms of the securities
offered. The prospectus supplement may also add, update or change
information contained in this prospectus. We urge you to read both
this prospectus and any prospectus supplement together with additional
information described under the headings “Available
Information” and “Incorporation of Certain
Documents by Reference” on page 2 in this prospectus.
You should rely only on the information
incorporated by reference or provided in this prospectus. We have not
authorized anyone to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely on it. We
will not make an offer to sell our securities in any jurisdiction where the
offer or sale is not permitted.
As used
in this prospectus, “Farmers Capital,”
“the Company,”
“we,” “us,” and “ours” refer to
Farmers Capital Bank Corporation and its subsidiaries.
You
should not assume that the information contained in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front cover of such documents. Neither the delivery of this
prospectus or any applicable prospectus supplement nor any distribution of
securities pursuant to such documents creates any implication, under any
circumstances, that there has been no change in the information set forth in
this prospectus or any applicable prospectus supplement or in our affairs since
the date of this prospectus or any applicable prospectus
supplement.
Investing
in our securities involves risk. In addition to the risk factor below
please see the “Risk Factors” section in our most recent Annual Report on Form
10-K, along with any risk factor disclosure contained in our subsequent periodic
reports, which are incorporated by reference into this prospectus, as updated by
our future filings with the SEC. The prospectus supplement applicable
to each type or series of securities we offer may contain a discussion of
additional risks applicable to the particular type of securities we are offering
under that prospectus supplement. Before you invest in our
securities, you should carefully consider these risks as well as other
information contained or incorporated by reference in this
prospectus. Each of the risks described in these sections and
documents could materially and adversely affect our business, financial
condition, results of operations and prospects, and could result in a partial or
complete loss of your investment. Additionally, risks that we
currently deem immaterial or that are presently unknown to us may also impair
our business, financial condition, results of operations and the value of our
securities.
Because of our participation in the
United States Department of the Treasury (“Treasury”) Capital Purchase Program, we are
subject to several restrictions including restrictions on our ability to declare
or pay dividends and repurchase our stock.
On
January 9, 2009, we sold directly to the Treasury for the aggregate
consideration of $30 million (1) 30,000 shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series A, no par value and liquidation preference
$1,000 per share (the “Series A Preferred
Stock”) and (2) a warrant (the “Warrant”) to purchase
223,992 shares of our common stock. We issued these securities
pursuant to a letter agreement dated January 9, 2009 and the Securities Purchase
Agreement – Standard Terms attached thereto between us and the Treasury
(collectively, the “Purchase
Agreement”). Pursuant to the terms of the Purchase Agreement,
our ability to declare or pay dividends on any of our stock is
limited. Specifically, we are unable to declare dividend payments on
shares of our common or junior preferred stock if we are in arrears on the
dividends on the Series A Preferred Stock. Similarly, dividends
on
preferred
stock that has the same liquidation and distribution preference as the Series A
Preferred Stock may only receive dividends pro rata with the Series A Preferred
Stock during any period in which dividends on the Series A Preferred Stock are
in arrears. Further, until January 9, 2012, we must have the
Treasury’s approval before we may increase dividends on our common stock above
the amount of the last quarterly cash dividend per share we declared prior to
October 14, 2008, which was $0.33 per share. This restriction no
longer applies if all the Series A Preferred Stock has been redeemed by us or
transferred by the Treasury.
In
addition, our ability to repurchase our shares is restricted. Until
January 9, 2012, we generally must have the Treasury’s approval before we may
repurchase any of our shares of common stock, unless all of the Series A
Preferred Stock has been redeemed by us or transferred by the
Treasury.
We file
annual, quarterly and current reports, proxy statements and other information
required by the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with
the SEC. You may read and copy any of these filed documents at the
SEC’s Public Reference Room at 100 F Street, N.E., Room 1580, Washington, DC,
20549. Please call the SEC at 1-800-SEC-0330 for further information
on the operation of the Public Reference Room. Our SEC filings are
also available to the public from the SEC’s website at
http://www.sec.gov.
Our
Internet address is www.farmerscapital.com. We make available through our
website, free of charge, our periodic and current reports, proxy and information
statements and other information we file with the SEC and amendments thereto as
soon as reasonably practicable after we file such material with, or furnish such
material to, the SEC, as applicable. Unless specifically incorporated
by reference, the information on our website is not part of this
prospectus.
This
prospectus is part of a registration statement and does not contain all of the
information included in the registration statement. Whenever a
reference is made in this prospectus or any prospectus supplement to any
contract or other document of ours, you should refer to the exhibits that are a
part of the registration statement for a copy of the referenced contract or
document. Statements contained in this prospectus concerning the
provisions of any documents are necessarily summaries of those documents, and
each statement is qualified in its entirety by reference to the copy of the
document filed with the SEC.
The SEC
allows us to “incorporate by reference” into this prospectus information that we
file with the SEC in other documents. This means that we can disclose
important information to you by referring you to other documents filed
separately with the SEC. The information that we incorporate by
reference is considered to be part of this prospectus, and information that we
file later with the SEC will automatically update and supersede the information
contained in this prospectus.
We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus and prior to the termination of the offering
covered by this prospectus:
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Our
Annual Report on Form 10-K (File No.
000-144412)
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Year
Ended Filing
Date
December
31,
2008 March
12, 2009
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Our
Quarterly Reports on Form 10-Q (File No.
000-144412)
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Quarter
Ended Filing
Date
March 31,
2009 May
7, 2009
June 30,
2009 August
7, 2009
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Our
Current Reports on Form 8-K (File No.
000-144412)
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January
12, 2009, January 13, 2009, January 21, 2009, January 27, 2009, April 22,
2009, April 28, 2009, June 8, 2009, July 22, 2009 and July 28,
2009.
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Portions
of DEF 14A (our definitive Proxy Statement for our Annual Meeting of
Shareholders held on May 12, 2009) that are incorporated by reference into
Items 11, 12, 13 and 14 of our Annual Report on Form 10-K for year ended
December 31, 2008.
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Description
of our common stock contained in our registration statement filed under
Section 12 of the Exchange Act, including all amendments or reports filed
for the purpose of updating such
description.
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We also
incorporate by reference any future documents, including any documents filed
after the date of this registration statement and prior to its effectiveness,
that we will file with the SEC under Section 13(a), 13(c), 14, or 15(d) of the
Exchange Act (other than information in such additional documents that is
deemed, under SEC rules, to have been furnished and not to have been filed).
These additional documents will be deemed to be incorporated by reference, and
to be a part of, this prospectus from the date of their filing. These documents
include proxy statements and periodic reports, such as Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q, and, to the extent they are considered
filed, Current Reports on Form 8-K. To the extent any information
incorporated by reference from later filed documents is inconsistent with
information that is included in this prospectus, any applicable prospectus
supplement or incorporated by reference from earlier documents, then the later
information shall supersede the earlier information to the extent they are
inconsistent.
On the
written or oral request of each person, including any beneficial owner, to whom
a copy of this prospectus is delivered, we will provide, without charge, a copy
of any or all of the documents incorporated by reference in this prospectus or
in any related prospectus supplement including the exhibits to those documents
that are specifically incorporated by reference.
Written
requests for copies should be directed to P.O. Box 309, 202 W. Main St.,
Frankfort, KY 40602, Attention: C. Douglas
Carpenter. Telephone requests for copies should be directed to (502)
227-1668.
You
should rely only upon the information provided in this document, or incorporated
in this document by reference. We have not authorized anyone to
provide you with different information. You should not assume that
the information in this document, including any information incorporated by
reference, is accurate as of any date other than the date indicated on the front
cover or the date given in the applicable document.
Special
Cautionary Note Regarding
This
prospectus includes, and any accompanying prospectus supplement and documents
incorporated by reference may contain, “forward-looking statements”
within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act. Forward-looking statements discuss future expectations, describe
future plans and strategies, contain projections of results of operations or of
financial condition or state other forward-looking information. Forward-looking
statements are generally identifiable by the use of forward-looking terminology
such as “anticipate,” “believe,” “continue,” “could,” “endeavor,” “estimate,”
“expect,” “forecast,” “goal,” “intend,” “may,” “objective,” “potential,”
“predict,” “pro-forma,” “project,” “seek,” “should,” “will” and other similar
words and expressions of future intent.
Our
ability to predict results or the actual effect of future plans or strategies is
inherently uncertain. Although we believe that the expectations reflected in
such forward-looking statements are based on reasonable assumptions, actual
results and performance could differ materially from those set forth in the
forward-looking statements. Factors that could cause actual results and
performance to differ from those expressed in our forward-looking statements
include, but are not limited to:
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our
ability to manage effectively interest rate risk and other market, credit
and operational risk,
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the
quality and composition of our loan and investment
portfolios,
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changes in the availability and cost of credit and capital
in the financial markets,
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the
failure of assumptions underlying the establishment of reserves for
possible loan losses and other
estimates,
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changes
in general economic conditions due to the effects of war or other
conflicts, acts of terrorism or other catastrophic
events,
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our
ability to manage fluctuations in the value of assets and liabilities and
off-balance sheet exposure so as to maintain sufficient capital and
liquidity to support our business,
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new
legislation and regulations and changes in existing legislation and
regulations, including changes in banking, securities and tax laws and
regulations and their application by our regulators, and changes in the
scope and cost of FDIC insurance and other
coverages,
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possible
changes in general economic and business conditions in the United States
in general, and in the Kentucky communities we serve in particular, may
lead to a deterioration in asset and credit
quality,
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monetary
and fiscal policies of the United States Government,
and
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the
cost and other effects of material contingencies, including litigation
contingencies.
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We do not
have a policy of updating or revising forward-looking statements except as
otherwise required by law, and silence by management over time should not be
construed to mean that actual events are occurring as estimated in such
forward-looking statements. For further information on other factors
that could affect us is included in the SEC filings incorporated by reference in
this prospectus. See also “Risk Factors”
contained herein and therein.
Farmers
Capital Bank Corporation is a Kentucky corporation and a registered bank holding
company headquartered in Frankfort, Kentucky. Our principle executive
office is located at 202 W. Main St., Frankfort, Kentucky 40602. Our common
stock is listed on the NASDAQ Global Select Market under the symbol “FFKT”. Our operating subsidiaries provide a
wide range of banking and bank-related services to customers throughout Central
and Northern Kentucky. The bank subsidiaries owned by Farmers Capital
include Farmers Bank & Capital Trust Co. (Frankfort, Kentucky), United Bank
& Trust Co. (Versailles, Kentucky), Citizens Bank of Northern Kentucky, Inc.
(Newport, Kentucky), The Lawrenceburg Bank and Trust Company (Lawrenceburg,
Kentucky), and First Citizens Bank (Elizabethtown, Kentucky). We also
own FCB Services, Inc., a nonbank data processing subsidiary located in
Frankfort, Kentucky, which provides services primarily to our bank subsidiaries.
Further, we own EKT Properties, Inc., which is involved in real estate
management and liquidation for certain properties repossessed by our subsidiary
banks.
Our subsidiaries provide a broad range
of financial services to individuals, corporations and others through their
combined 36 banking locations in 23 communities throughout Central and Northern
Kentucky. These services primarily include the activities of lending
and leasing, receiving deposits, providing cash management services, safe
deposit box rental and trust activities. Operations are managed and
financial performance is evaluated at the subsidiary
level. Our chief decision makers monitor the results of
the various banking products and services of its
subsidiaries. Accordingly, all of our operations are considered by
management to be aggregated in one reportable operating
segment: commercial and retail banking.
As of
June 30, 2009, we had consolidated total assets of approximately $2.30 billion,
consolidated total gross loans of approximately $1.32 billion, consolidated
total deposits of approximately $1.64 billion and consolidated shareholders’
equity of approximately $195 million.
Unless
otherwise set forth in a prospectus supplement, we intend to use the net
proceeds from the sale of securities covered by this prospectus for general
corporate purposes, including the redemption of part or all of the 30,000 shares
of Series A Preferred Stock we sold to the Treasury on January 9,
2009. We may temporarily invest funds that we do not immediately need
for these purposes in short-term marketable securities or use them to make
payments on our borrowings.
Our
consolidated ratios of earnings to fixed charges for each of the periods
indicated is as follow:
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Six
Months
Ended
June
30,
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Year
Ended
December
31,
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2009
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2008 |
2008
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2007
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2006
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2005
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2004
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Ratio
of Earnings to Fixed Charges and Preferred Dividends:
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Excluding
Interest on Deposits
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1.4x
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2.5x |
1.2x
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2.8x
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2.9x
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4.4x
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5.7x
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Including
Interest on Deposits
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1.1x
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1.4x |
1.1x
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1.4x
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1.4x
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1.7x
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2.0x
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As of the
date of this prospectus, we had 30,000 shares of preferred stock outstanding
that we issued on January 9, 2009. We were not required to pay any
dividends on the preferred stock for the periods prior to January 9,
2009. For the purpose of computing the ratios of earnings to fixed
charges and preferred dividends, earnings consist of consolidated income from
continuing operations before income tax expense and fixed charges. Fixed charges
include the estimated interest portion of rents.
We may
offer any of the following securities from time to time:
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·
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warrants
to purchase common stock or preferred stock;
and
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When
we use the term “securities” in this
prospectus, we mean any of the securities we may offer with this prospectus,
unless we say otherwise. The total dollar amount of all securities
that we may issue will not exceed $70,000,000. This prospectus,
including the following summary of the securities that may be issued, describes
the general terms that may apply to the securities. The specific terms of any
particular securities that we may offer will be described in a separate
prospectus supplement.
Common
Stock
We may
offer shares of our common stock, which is currently traded on the NASDAQ Global
Select Market under the symbol “FFKT.” See “Description of Capital
Stock” beginning on page 6 of this prospectus.
Preferred
Stock
We may
offer our preferred stock in one or more series. For any particular series we
offer, the applicable prospectus supplement will describe the specific
designation; the aggregate number of shares offered; the rate and periods, or
the manner of calculating the rate and periods, for dividends, if any; the
stated value and liquidation preference amount, if any; the voting rights, if
any; the terms on which the series will be convertible into or exchangeable for
other securities or property, if any; the redemption terms, if any; and any
other specific terms that apply to that series of preferred stock. See “Description of Capital
Stock” beginning on page 6 of this prospectus.
Depositary
Receipts
We may
offer depositary shares representing receipts for fractional interests in any
serial preferred stock in the form of depositary shares. Each
depositary share would represent a fractional interest in serial preferred stock
and would be represented by a depositary receipt. The prospectus
supplement will describe the specific terms of the depositary shares offered
through that prospectus supplement and any general terms outlined in this
section that will not apply to those depositary shares. See “Description of Other
Securities We May Offer – Depositary Shares” beginning on page 15 of this
prospectus.
Warrants
We may
offer warrants to purchase our common stock or preferred stock. For
any particular warrants we offer, the applicable prospectus supplement will
describe the underlying security; the expiration date; the exercise price or the
manner of determining the exercise price; the amount and kind, or the manner of
determining the amount and kind, of securities to be delivered by us upon
exercise; and any other specific terms. We may issue the warrants under warrant
agreements between us and one or more warrant agents. See “Description of Other
Securities We May Offer - Warrants” beginning on page 16 of this
prospectus.
Units
We may
offer units comprising one or more of the securities described in this
prospectus in any combination. Each unit will be issued so that the
holder of the unit also is the holder of each security included in the
unit. For any particular units we offer, the applicable prospectus
supplement will describe the specific terms relating to the offering and units,
including, the designation and terms of the units and of the securities
comprising the units, and whether and under what circumstances those securities
may be held or transferred separately; any provision for the issuance, payment,
settlement, transfer or exchange of the units or of the securities comprising
those units; and whether the units will be issued in fully registered or global
form. See “Description of Other
Securities We May Offer – Units” beginning on page 19 of this
prospectus.
Listing
If any
securities we offer are to be listed or quoted on a securities exchange or
quotation system, the applicable prospectus supplement will state such
information.
The
following is a description of our capital stock and certain provisions of our
articles of incorporation, bylaws and certain provisions of applicable law. The
following is only a summary and is qualified by applicable law and by the
provisions of our articles of incorporation, as amended and bylaws, copies of
which are available upon request from us. Our Articles of
Incorporation, as amended, have been filed with the SEC.
Authorized
Capital Stock
The
Company’s authorized capital stock consists of 10,608,000 shares, 9,608,000 of
such shares being common stock, par value $0.125 per share, and 1,000,000 of
such shares being preferred stock, no par value, issuable in one or more
series. As of October 1, 2009, 7,371,207 shares of our common stock
were issued and outstanding, plus an additional 366,894 shares of our common
stock were reserved for issuance under existing stock options held by employees,
our employee stock purchase plan and a warrant we issued to the Treasury on
January 9, 2009. As of that same date, 30,000 shares of our preferred
stock were issued and outstanding.
Common
Stock
Voting
Rights. Subject to the rights of any series of preferred stock
outstanding or that we may issue, our common stock has the exclusive right to
vote in the election of directors and on all other matters in which shareholders
are generally entitled to vote. The common stock is entitled to one vote per
share on matters that holders of our common stock are entitled to
vote.
Except
with respect to certain special matters that are required by statute to be
submitted to shareholders for a greater number of affirmative votes as
identified below, any act of our shareholders requires that more votes be cast
for than against the matter at a meeting at which a quorum is
present. Subject to special votes required below in specific
instances, the affirmative vote of a majority of all the outstanding shares
entitled to vote is required to approve actions specified by statute such as
mergers, share exchanges, certain sales of assets, and amendments of the
articles of incorporation, among other things.
Our
directors are elected by a plurality of votes cast by the shares entitled to
vote in the election at a meeting at which a quorum is present. Holders of our
voting common stock are entitled to cast, in person or by proxy, one vote per
share for each director to be elected and for other matters submitted to the
shareholders for a vote.
Dividend
Rights. Holders of our common stock are entitled to dividends when, as,
and if declared by our board of directors out of funds legally available for the
payment of dividends. The Kentucky Business Corporation Act prohibits
the board of directors from declaring a dividend if as a result of such
dividend:
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we
would not be able to pay our debts as they become due in the usual course
of business, or
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our
total assets would be less than the sum of our total liabilities plus the
amount that would be needed, if we were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights are superior to those receiving the
distribution.
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Liquidation
and Dissolution. In the event of the liquidation, dissolution and winding
up of the Company, the holders of our common stock are entitled to receive
ratably all of the assets of the Company available for distribution after
satisfaction of all liabilities of the Company, subject to the rights of the
holders of any shares of the Company’s preferred stock that may be issued and
outstanding from time to time.
Other
Rights. Holders of our common stock have no preemptive
rights. There are no conversion rights or redemption or sinking fund
provisions applicable to shares of our common stock.
No
Shareholder Liability. No holder of our common stock will be
personally liable for our debts.
Transfer
Agent. American Stock Transfer & Trust Company is the
registrar and transfer agent for our common stock.
Preferred
Stock
Our board
of directors has the authority, without further action by the shareholders, to
issue shares of preferred stock in one or more series and to fix the number,
designation, powers, preferences and rights of the shares of each such series of
preferred stock. These powers, preferences and rights fixed by the
board may include dividend rights, conversion rights, voting rights, redemption
rights, liquidation preferences, sinking funds, and any other rights,
preferences, privileges and restrictions.
Prior to
the issuance of any shares of a new series of preferred stock, we must through
action of our board of directors and filing articles of amendment with the
Kentucky Secretary of State, amend our articles of incorporation, designating
the number of shares of that series and the terms of the stock of that
series. The issuance of any preferred stock could adversely affect
the rights of the holders of our common stock and, therefore, reduce the value
of our common stock. The ability of our board of directors to issue
preferred stock could discourage, delay or prevent a takeover or other corporate
action.
The terms
of any particular series of preferred stock will be described in the prospectus
supplement relating to that particular series of preferred stock, including,
where applicable:
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the
designation, stated value and liquidation preference of such preferred
stock and the number of shares
offered,
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the
dividend rate on the shares of that series, whether dividends will be
cumulative (or partially cumulative), and, if so, from which date or
dates, and the relative rights of priority, if any, of payment of
dividends on shares of that series,
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whether
that series will have voting rights, in addition to the voting rights
provided by law, and, if so, the terms of such voting
rights,
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whether
that series will have conversion privileges, and, if so, the terms and
conditions of such conversion, including provision for adjustment of the
conversion rate in such events as the board of directors will
determine,
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whether
or not the shares of that series shall be redeemable, and, if so, the
terms and conditions of such redemption, including the date or dates upon
or after which they will be redeemable, and the amount per share payable
in case of redemption,
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whether
that series will have a sinking fund for the redemption or purchase of
shares of that series, and, if so, the terms and amount of such sinking
fund,
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whether
the shares of such series will have a preference, as to the payment of
dividends or otherwise, over the shares of our common stock or the shares
of any other series of our preferred
stock,
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the
rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Company, and the
relative rights of priority, if any, of payment of shares of that series,
and
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any
other relative rights, preferences and limitations of that
series.
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The
description of the terms of a particular series of preferred stock in the
applicable prospectus supplement will not be complete. You should
refer to the applicable articles of amendment to our articles of incorporation
for complete information regarding a series of preferred stock.
The
preferred stock will, when issued, be fully paid and
nonassessable. Unless otherwise specified in the applicable
prospectus supplement, the shares of each series of preferred stock will, upon
issuance, rank senior to the common stock and on a parity in all respects with
each other outstanding series of preferred stock. The rights of the
holders of our preferred stock will be subordinate to that of our general
creditors.
Fixed
Rate Cumulative Perpetual Preferred Stock, Series A
The
following is a brief description of the terms of our Series A Preferred
Stock. This summary does not purport to be complete in all
respects. This description is subject to and is qualified in its
entirety by reference to the Articles of Amendment to our Second Amended and
Restated Articles of Incorporation with respect to the Series A Preferred Stock,
a copy of which we filed with the SEC as Exhibit 3.1 to our Current Report on
Form 8-K filed on January 13, 2009, which is incorporated herein by reference
and is also available upon request from us.
We have
30,000 shares of the Series A Preferred Stock authorized, all of which are
issued and outstanding. The Series A Preferred Stock was issued on
January 9, 2009 to the Treasury pursuant to the Purchase Agreement.
Dividends
Payable on Series A Preferred Stock. Holders of Series A
Preferred Stock are entitled to receive if, as and when declared by our board of
directors, out of legally available funds, cumulative cash dividends at a rate
per annum of 5% 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 Series A Preferred Stock are entitled to receive cumulative cash
dividends at a rate per annum of 9% 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. We have paid the full
dividend due on each dividend payment date which has elapsed as of the date of
this prospectus. 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 our Series A Preferred
Stock are payable to holders of record on the date that is 15 calendar days
immediately preceding the applicable dividend payment date or such other record
date as our board of directors or any duly authorized board committee
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 Series A
Preferred Stock, we are required to provide written notice to the holders of
Series A Preferred Stock prior to the applicable dividend payment
date.
We are
subject to various regulatory policies and requirements relating to the payment
of dividends, including requirements to maintain adequate capital above
regulatory minimums. The Federal Reserve Board (“FRB”) is authorized
to determine, under certain circumstances relating to the financial condition of
a bank holding company, such as us, that the payment of dividends would be an
unsafe or unsound practice and to prohibit payment of that
dividend.
Priority
of Dividends. With respect to the payment of dividends and the
amounts to be paid upon liquidation, Series A Preferred Stock will
rank:
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senior
to our common stock and all other equity securities ranking junior to
Series A Preferred Stock as to dividends and/or rights on liquidation,
dissolution or winding up of the Company,
and
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at
least equally with all other equity securities designated as ranking on a
parity with Series A Preferred Stock (“parity stock”),
with respect to the payment of dividends and distribution of assets upon
our liquidation, dissolution or winding up of the
Company.
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So long
as any shares of Series A Preferred Stock remain outstanding, we may not declare
or pay any dividends on our common stock, other than dividends payable solely in
common stock, unless all accrued and unpaid dividends for the Series A Preferred
Stock for all prior dividend periods have been paid or are contemporaneously
declared and paid in full.
Further,
without the Treasury’s approval or unless all of the Series A Preferred Stock
has been redeemed or transferred by the Treasury, until January 9, 2012, we are
not permitted to increase dividends on our common stock above the amount of the
last quarterly cash dividend per share we declared prior to October 14, 2008,
which was $0.33 per share.
On any
dividend payment date on Series A Preferred Stock and any other parity stock for
which full dividends are not paid or declared and funds set aside for payment,
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 falling within the dividend period and related to the
dividend payment date for Series A Preferred Stock), must be declared ratably
among the holders of any such shares of Series A Preferred Stock and other
parity stock who have the right to receive dividends, in proportion to the
respective amounts of the undeclared and unpaid dividends payable on such
dividend payment date.
Subject
to the foregoing restrictions, our board of directors may declare and pay
dividends (payable in cash, stock or otherwise) 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. The
Series A Preferred Stock will not be entitled to participate in any such
dividend.
In
addition, we may not purchase, redeem or otherwise acquire for consideration any
shares of our common stock or other junior stock or parity stock unless we have
paid in full all accrued dividends on Series A Preferred Stock for all prior
dividend periods, other than:
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redemptions,
purchases 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,
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purchases
or other acquisitions by any 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 any broker-dealer subsidiaries of the Company for
resale pursuant to an offering by us 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
by us or our subsidiaries of record ownership of junior stock or parity
stock for the beneficial ownership of any other person (other than us),
including as trustees or custodians,
and
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the
exchange or conversion of (a) junior stock for or into other junior stock
or (b) parity stock for or into other parity stock or junior stock, but
only to the extent that (x) the acquisition is required pursuant to
binding contractual agreements entered into before January 9, 2009 or (y)
any subsequent agreement for the accelerated exercise, settlement or
exchange thereof for common stock.
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Redemption. The
articles of amendment that created the Series A Preferred Stock state that we
may not redeem shares of our Series A Preferred Stock prior to February 15,
2012, unless we have received aggregate gross proceeds from one or more
qualified equity offerings (as described below) equal to
$7,500,000. In such a case, we may redeem the Series A Preferred
Stock, subject to the approval of the 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 qualified equity offerings. A “qualified equity
offering” means the Company’s sale and issuance for cash, to persons
other than the Company or our subsidiaries after January 9, 2009, of shares of
perpetual preferred stock, common stock or a combination thereof, that in each
case qualify as tier 1 capital of the Company 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.
The
American Recovery and Reinvestment Act of 2009 was signed into law on February
17, 2009, after we issued shares of our Series A Preferred Stock to the
Treasury. Under this act, subject to consultation with the FRB, the
Treasury must permit us to repurchase the shares of Series A Preferred Stock it
purchased without regard to the above waiting period restrictions or our source
of funds for such repurchase.
In any
redemption, the redemption price will be an amount equal to the per share
liquidation amount plus accrued and unpaid dividends to but excluding the date
fixed for 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.
In case
of any redemption of less than all of the shares of Series A Preferred Stock,
the shares to be redeemed will be selected either pro rata or in such other
manner as our board of directors 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 we redeem, repurchase or otherwise acquire will
revert to authorized but unissued shares of our preferred stock. Such
shares may be reissued as another series of preferred stock, but may not be
reissued as Series A Preferred Stock.
Liquidation
Rights. In the event that we 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 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 of our stock 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 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 the Company’s board of
directors will be automatically increased by two. Holders of Series A
Preferred Stock, together with the holders of any outstanding parity stock with
like voting rights (the “Voting Parity
Stock”), voting as a single class, will be entitled to elect the two
additional members of the Company’s board of directors (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. The election of any
Preferred
Stock Director is subject to the qualification that the election would not cause
us to violate the corporate governance requirements 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 the Company 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 articles of incorporation, 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 articles of incorporation or the articles
of amendment that created the Series A Preferred Stock, 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 our liquidation, dissolution or
winding up,
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any
amendment, alteration or repeal of any provision of our articles of
incorporation or the articles of amendment that created 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 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 that have rights, preferences, 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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The
creation and issuance, or increase in the authorized or issued amount of any
other series of preferred stock ranking equally with and/or junior to the Series
A Preferred Stock will not be deemed to adversely affect the rights,
preferences, privileges or voting powers of, and shall not require the vote or
consent of, the holders of the Series A Preferred Stock.
Holders
of the Series A Preferred Stock are entitled to one vote for each share on any
matter on which such holders are entitled to vote.
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.
Anti-Takeover
Provisions in our Articles of Incorporation, Bylaws and Kentucky
Law
Our
articles of incorporation and bylaws contain provisions designed to assure
continuity of management and to discourage sudden changes in control of our
board of directors by a party seeking control of the Company.
Omission
of Cumulative Voting. The omission of cumulative voting from
our articles of incorporation may be considered anti-takeover in
nature. Cumulative voting entitles each shareholder to as many votes
as equal the number of shares owned by him or her multiplied by the number of
directors to be elected. A shareholder may cast all these votes for
one candidate or distribute them among any two or more
candidates. Cumulative voting is optional under the Kentucky Business
Corporation Act and, by their omission from our articles of incorporation, we
have not elected to permit cumulative voting.
Classification
of Board of Directors. Our articles of incorporation provide
for the division of our board of directors into three classes, as nearly equal
as possible. Each class of directors is elected for a term of three
years. As a result, only one class of directors is elected at each
annual meeting of the shareholders. Any vacancy on the board may be
filled by a majority vote of the remaining directors. Directors
elected in this manner to fill a vacancy will serve the unexpired portion of the
vacated term.
This
classification provision extends the time required to change control of the
board and tends to discourage any unauthorized takeover bids for the
Company. Under this classification provision, it may require at least
two annual meetings for even a majority of the shareholders to make a change in
control of our board.
Special
Approval Requirements for Certain Business Combinations. Our articles of
incorporation require a vote of eighty percent (80%) or more of the shares of
common stock to change the number of directors, approve a business combination,
or remove a director without cause. A “business combination”
includes any of the following involving us or any of our
subsidiaries:
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a
merger or consolidation with a related
person,
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the
sale, lease, exchange, transfer or other disposition of all or a
substantial part of our or a subsidiary’s assets to a related
person,
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the
sale, lease, exchange, transfer or other disposition of all or a
substantial part of the assets of a related person to us or any
subsidiary,
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the
issuance of securities to a related
person,
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a
recapitalization that would increase the voting power of a related person,
or
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our
dissolution or liquidation when we have a related
person.
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A “related person” is
one who either owns ten percent (10%) or more of our capital stock or controls,
is controlled by, or is under common control of a person who controls ten
percent (10%) or more of our capital stock.
However,
a vote of eighty percent (80%) is not required for the approval of a change in
the number of directors or a business combination if such transaction is
approved by a majority of “continuing directors”. “Continuing directors”
means each Farmers Capital director that:
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is
a director at the time the board votes with respect to the business
combination, and
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meets
one of the following criteria:
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was
a director on March 1, 1986,
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was
a director immediately before any 10% or greater shareholder involved in
the business combination became a 10% shareholder,
or
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is
designated a continuing director by a majority of the then continuing
directors within 90 days after he or she is first elected to the
board.
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As a
Kentucky corporation, we are or could be subject to certain restrictions on
business combinations under Kentucky law, including, but not limited to,
combinations with interested shareholders.
The requirement of a supermajority vote
of shareholders to approve certain business transactions may discourage a change
in control of Farmers Capital by allowing a minority of our shareholders to
prevent a transaction favored by the majority of our
shareholders. The primary purpose of the supermajority vote
requirement is to encourage negotiations with our existing management by groups
or corporations interested in acquiring control of Farmers Capital and to reduce
the danger of a forced merger or sale of assets.
Vote
Required to Amend Certain Provisions. The Kentucky Business
Corporation Act provides that a corporation’s charter may be amended by the
directors in certain limited circumstances or by the shareholders, subject to
any condition the board of directors may place on its submission of the
amendment to the shareholders. In addition, if we have a related
person at the time of an amendment and our continuing directors do not approve
the amendment, our articles of incorporation require a vote of eighty percent
(80%) or more of the shares of common stock to amend, alter or repeal the
provisions of the articles of incorporation governing our authorized shares of
common stock, number of directors, certain business combinations (i.e., a merger
or consolidation, a sale or lease of all or a substantial part of our assets, or
a dissolution or liquidation), or the removal of
directors. Additionally, amendments to the provisions of our articles
of incorporation limiting director liability require approval of eighty percent
(80%) or more of the shares of our common stock.
Our board
of directors may adopt, amend or repeal our bylaws by a majority vote of the
entire board of directors. The bylaws may also be amended or repealed
by our shareholders.
In
addition, our articles of incorporation authorize the issuance of up to
1,000,000 shares of preferred stock. The rights and preferences for
any series of preferred stock may be set by our board of directors, in its sole
discretion and without shareholder approval, and the rights and preferences of
any such preferred stock may be superior to those of the common stock and thus
may adversely affect the rights of holders of the common stock.
The
overall effect of the articles of incorporation and bylaw provisions described
above may be to deter a future tender offer or other takeover attempt that some
shareholders might view to be in their best interests especially if the offer
includes a premium over the market price of our capital stock at that
time. In addition, these provisions may assist our current management
in retaining their positions and place them in a better position to resist
changes that some dissatisfied shareholders may want.
Removal of Directors under
our Articles of
Incorporation
Under our
articles of incorporation, a director may be removed without cause, but only on
the affirmative vote of the holders of at least 80% of the outstanding shares of
common stock then entitled to vote on the election of directors.
Director
Liability and Limitations on Director Liability
A
director’s liability to us or our shareholders is limited to the greatest extent
permitted by law. No director is personally liable to us or our
shareholders for monetary damages for a breach of his or her duties as a
director except for liability:
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for
any transaction in which the director’s personal financial interest is in
conflict with the financial interest of the Company or its
shareholders;
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acts
or omissions not taken in good faith or which involve intentional
misconduct or a knowing violation of the
law;
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actions
creating personal liability for unlawful distributions as set forth in KRS
271B.8-330; or
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transactions
from which the director derived an improper personal
benefit.
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Shareholders
may still seek equitable relief, such as injunction, against an action of a
director that is inappropriate.
KRS
271B.8-300 provides that a director of a Kentucky corporation must discharge his
duties as a director in good faith, on an informed basis, and in a manner he
honestly believes to be in the best interests of the corporation. To discharge
his duties on an informed basis, a director must make inquiry into the business
and affairs of the corporation, or into a particular action to be taken or
decision to be made, with the care an ordinary prudent person in a like
position
would
exercise under similar circumstances. In addition to the limitations
on director liability for monetary damages explained above, any action
taken as a director, or any failure to take any action as a director, will not
be the basis for monetary damages or injunctive relief unless:
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the
director has breached or failed to perform his duties as a director in
good faith, on an informed basis and in a manner he honestly believes to
be in the best interests of the corporation,
and
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in
the case of an action for monetary damages, the breach or failure to
perform constitutes willful misconduct or wanton or reckless disregard for
the best interests of the corporation and its
shareholders.
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A person
bringing an action for monetary damages for breach of duty has the burden of
proving by clear and convincing evidence the above provisions, and the burden of
proving that the breach or failure to perform was the legal cause of the damages
suffered by the corporation.
Indemnification
Indemnification
of corporate directors and officers is governed by Sections 271B.8-500 through
271B.8-580 of the Kentucky Business Corporation Act. Under that Act,
we may indemnify a person against judgments, fines, amounts paid in settlement
and reasonable expenses (included attorneys’ fees) actually and necessarily
incurred by him or her in connection with any threatened or pending suit or
proceeding or any appeal thereof (other than an action by us or in our right),
if:
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he
or she is or was our director or officer or is or was serving at our
request as a director or officer, employee or agent of another corporation
of any type or kind, domestic or
foreign,
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if
such director or officer acted in good faith for a purpose which he or she
reasonably believed to be in the best interest of the corporation,
and
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in
criminal actions or proceedings only, such director or officer had no
reasonable cause to believe that his or her conduct was
unlawful.
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Generally,
our bylaws require us to indemnify our directors and officers to the extent
permitted by Kentucky law.
As
permitted by Kentucky law, we maintain liability insurance on behalf of the
directors and officers for claims asserted against them or incurred by them in
their capacity or arising out of their status as director or
officer.
This
prospectus contains summary descriptions of our depositary shares, warrants, and
units that we may offer from time to time. These summary descriptions are not
meant to be complete descriptions of each security. The particular
terms of any security will be described in the accompanying prospectus
supplement and other offering material. The accompanying prospectus supplement
may add, update, or change the terms and conditions of the securities as
described in this prospectus.
Depositary
Shares
We may
offer depositary shares representing receipts for fractional interests in any
serial preferred stock in the form of depositary shares. Each
depositary share would represent a fractional interest in serial preferred stock
and would be represented by a depositary receipt. The summary of depositary
shares in this prospectus does not purport to be exhaustive and is qualified in
its entirety by reference to the relevant deposit agreement and depositary
receipts with respect to any particular series of depositary shares. The
prospectus supplement will describe the specific terms of the depositary shares
offered through that prospectus supplement and any general terms outlined in
this section that will not apply to those depositary shares.
The
serial preferred stock underlying the depositary shares will be deposited under
a separate deposit agreement between us and a bank or trust company having its
principal office in the United States, which we refer to in this prospectus as
the “depositary.” We
will identify the depositary in the applicable prospectus
supplement. Subject to the terms of the deposit agreement, each owner
of a depositary share will be entitled to the applicable fraction of a share of
serial preferred stock represented by the depositary share, including any
dividend, voting, redemption, liquidation, and conversion rights. If
necessary, the prospectus supplement will provide a description of U.S. Federal
income tax consequences relating to the purchase and ownership of the series of
depositary shares offered by that prospectus supplement.
The
depositary shares will be evidenced by depositary receipts issued under the
deposit agreement. If you purchase fractional interests in the serial
preferred stock, you will receive depositary receipts as described in the
applicable prospectus supplement. While the final depository receipts
are being prepared, we may order the depositary to issue temporary depositary
receipts substantially identical to the final depositary receipts although not
in final form. The holders of the temporary depositary receipts will be entitled
to the same rights as if they held the depositary receipts in final
form. Holders of the temporary depositary receipts can exchange them
for the final depositary receipts at our expense.
Warrants
We may
offer warrants from time to time in one or more series for the purchase of our
common stock or preferred stock or any combination of those
securities. Warrants may be issued independently or together with any
shares of common stock or shares of preferred stock or offered by any prospectus
supplement and may be attached to or separate from common stock or preferred
stock. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and a warrant agent, or any
other bank or trust company specified in the related prospectus supplement
relating to the particular issue of warrants. The warrant agent will
act as our agent in connection with the warrants and will not assume any
obligation or relationship of agency or trust for or with any holders of
warrants or beneficial owners of warrants. The specific terms of a
series of warrants will be described in the prospectus supplement relating to
that series of warrants along with any general provisions applicable to that
series of warrants.
The
following is a general description of the warrants we may issue. The
prospectus supplement relating to the warrants will describe the specific terms
of any issuance of warrants. The terms of any warrants we offer may
differ from the terms described in this
prospectus. Consequently, we will describe in the prospectus
supplement the specific terms of the particular series of warrants offered by
that prospectus supplement. For a description of the terms of a
particular series of warrants, you should carefully read this prospectus, the
prospectus supplement related to those warrants, and the applicable warrant
agreement, which will be filed as an exhibit to the registration statement of
which this prospectus forms a part or by a document incorporated by reference
into this prospectus.
Terms.
If we offer warrants, the prospectus supplement will describe the terms of the
warrants, including the following if applicable to the particular
offering:
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the
title of the warrants,
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the
total number of warrants,
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the
number of shares of common stock purchasable upon exercise of the warrants
to purchase common stock and the price at which shares of common stock may
be purchased upon exercise of the
warrants,
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the
designation and terms of any series of preferred stock purchasable upon
exercise of the warrants to purchase preferred stock and the price at
which shares of preferred stock may be purchased upon exercise of the
warrants,
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the
date on and after which the warrants and the related common stock or
preferred stock will be separately
transferable,
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the
date on which the right to exercise the warrants will commence and the
date on which this right will
expire,
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the
minimum or maximum amount of the warrants which may be exercised at any
one time,
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a
discussion of federal income tax, accounting and other special
considerations, procedures and limitations relating to the warrants,
and
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any
other terms of the warrants including terms, procedures and limitations
relating to the exchange and exercise of the
warrants.
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Before
the exercise of their warrants, holders of warrants will not have any of the
rights of holders of shares of common stock or shares of preferred stock
purchasable upon exercise, including the right to receive any dividends or
vote. Unless otherwise stated in the prospectus supplement, warrants
may be exchanged for new warrants of different denominations, may be presented
for registration of transfer, and may be exercised at the office of the warrant
agent.
Exercise
of Warrants. Each warrant will entitle the holder to purchase
a number of shares of common stock or shares of preferred stock at an exercise
price as will in each case be set forth in, or calculable from, the related
prospectus supplement. Warrants may be exercised at the times set forth in the
applicable prospectus supplement. After the close of business on the
expiration date (or any later date to which the expiration date may be extended
by us), unexercised warrants will become void. Subject to any
restrictions and additional requirements that may be set forth in the related
prospectus supplement, warrants may be exercised by delivery to the warrant
agent of the certificate evidencing the warrants properly completed and duly
executed and of payment as provided in the prospectus supplement of the amount
required to purchase shares of common stock or shares of preferred stock
purchasable upon such exercise. The exercise price will be the price
applicable on the date of payment in full, as set forth in the prospectus
supplement relating to the warrants. Upon receipt of the payment and
the certificate representing the warrants to be exercised properly completed and
duly executed at the office of the warrant agent or any other office indicated
in the prospectus supplement, we will, as soon as practicable, issue and deliver
the shares of common stock or shares of preferred stock purchasable upon such
exercise. If fewer than all of the warrants represented by that
certificate are exercised, a new certificate will be issued for the remaining
amount of warrants.
The
description in the applicable prospectus supplement and other offering material
of any warrants we offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable warrant agreement, which will be
filed with the SEC if we offer warrants. For more information on how
you can obtain copies of the applicable warrant agreement if we offer warrants,
see “Incorporation of
Certain Information by Reference” and “Available
Information” on page 2 of this prospectus. We urge you to read
the applicable warrant agreement and the applicable prospectus supplement and
any other offering material in their entirety.
Existing
Warrant
The
following is a brief description of the terms of the Warrant. This
summary does not purport to be complete in all respects. This description is
subject to and is qualified in its entirety by reference to the Warrant,
copies of which have been filed with the SEC as Exhibit 4.2 to our Current
Report on Form 8-K filed on January 13, 2009 and are also available upon request
from us.
Shares
of Common Stock Subject to the Warrant. The Warrant is
initially exercisable for 223,992 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 $30,000,000, 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 Treasury will be reduced by 50% to 111,996 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 $20.09 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 the Company 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 warrantholder, 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.”
The
Warrant may be partially exercised. The holder of the Warrant is
entitled to receive, within three business days of partial exercise, a new
substantially identical Warrant for the unexercised shares.
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.
Liquidation. Under the
American Recovery and Reinvestment Act of 2009, when we redeem or repurchase the
shares of Series A Preferred Stock we sold to the Treasury on January 9, 2009,
the Treasury is required to liquidate the Warrant at the current market
price.
Rights
as a Shareholder. The warrantholder shall have no rights or
privileges that holders of our common stock have, including any voting rights,
until the Warrant has been exercised, and then only with respect to shares of
common stock issued in connection with such exercise.
Transferability. The
Treasury may not transfer a portion of the Warrant with respect to more than
111,996 shares of common stock until the earlier of the date on which the
Company has received aggregate gross proceeds from a qualified equity offering
of at least $30,000,000 and 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 stock 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 and 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, 2012.
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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 the Company and requiring shareholder approval,
the warrantholder’s right to receive shares of our common stock upon exercise of
the warrant will 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.
Units
We may
offer units comprising one or more of the securities described in this
prospectus in any combination. Each unit will be issued so that the
holder of the unit also is the holder of each security included in the
unit. Consequently, the holder of a unit will have the rights and
obligations of a holder of each included security. The unit agreement
under which a unit is issued may provide that the securities included in the
unit may not be held or transferred separately at any time or at any time before
a specified date. In this section, we describe the general terms and
provisions of the units that we may offer.
The
prospectus supplement relating to the units we may offer will include specific
terms relating to the offering, including, the designation and terms of the
units and the securities comprising the units; whether and under what
circumstances those securities may be held or transferred separately; any
provision for the issuance, payment, settlement, transfer or exchange of the
units or of the securities comprising those units; and whether the units will be
issued in fully registered or global form.
The
description in the applicable prospectus supplement and other offering material
of any units we offer will not necessarily be complete and will be qualified in
its entirety by reference to the applicable unit certificate, which will be
filed with the SEC if we offer units. We urge you to read the
applicable unit certificate and the applicable prospectus supplement and any
other offering material in their entirety.
The
following sets forth a general summary of the plan of distribution for
securities we may offer. The applicable prospectus supplement may update and
supersede this summary.
We may
sell our securities in any of three ways (or in any combination):
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through
underwriters or dealers,
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directly
to one purchaser or a limited number of purchasers,
or
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Each time
that we use this prospectus to sell our securities, we will also provide a
prospectus supplement that contains the specific terms of the offering, which
will include:
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the
name or names of any underwriters, dealers, or agents and the type and
amounts of securities underwritten or purchased by each of
them,
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the
public offering price of the securities and the proceeds to us and any
discounts, commissions or concessions allowed or reallowed or paid to
underwriters or dealers, and
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any
delayed delivery arrangements.
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The offer
and sale of the securities by us, the underwriters, or the third parties
described above may be effected from time to time in one or more transactions,
including privately negotiated transactions, either:
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at
a fixed price or prices, which may be
changed,
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at
market prices prevailing at the time of
sale,
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at
prices related to the prevailing market prices,
or
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Any
public offering price and any discounts or concessions to dealers may be changed
from time to time.
If
underwriters are used in the sale of any securities, the securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The securities may be either offered to the public through
underwriting syndicates represented by managing underwriters, or directly by
underwriters. Unless otherwise provided in a prospectus supplement, any
obligation of underwriters to purchase the securities will be subject to certain
conditions precedent and any underwriters will be obligated to purchase all of
the securities if they purchase any of the securities.
We may
sell the securities through agents from time to time. The prospectus
supplement will name any agent involved in the offer or sale of our securities
and any commissions we pay to them. Generally, any agent will be
acting on a best efforts basis for the period of its appointment.
If so
indicated in the applicable prospectus supplement, we may authorize
underwriters, dealers, or agents to solicit offers by certain purchasers to
purchase our securities at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. The contracts will be
subject only to those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth any commissions or discounts we pay for
solicitation of these contracts.
Agents
and underwriters may be entitled to indemnification by us against certain
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments that the agents or underwriters may be required to make
in respect thereof. Agents and underwriters may be customers of,
engage in transactions with, or perform services for us in the ordinary course
of business.
Unless
otherwise indicated in the applicable prospectus supplement, certain legal
matters with respect to the securities offered from time to time under this
prospectus will be passed upon by Stoll Keenon Ogden PLLC, Lexington,
Kentucky. If legal matters are passed upon by counsel for the
underwriters, dealers or agents, if any, such counsel will be named in the
prospectus supplement relating to such offering.
Crowe
Horwath LLP, independent registered public accounting firm, has audited our
consolidated financial statements included in our Annual Report on Form 10-K for
the year ended December 31, 2008, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in this registration
statement. Our consolidated financial statements are incorporated by
reference in reliance on Crowe Horwath LLP’s report, given on their authority as
experts in accounting and auditing.
Exhibit
Index
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Exhibit
No.
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Exhibit
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1.1*
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Form
of Underwriting Agreement for common stock, serial preferred stock,
depositary shares, warrants or units.
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3.1
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Second
Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3i to Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 2006, File No.
000-14412).
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3.2
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Articles
of Amendment to Second Amended and Restated Articles of Incorporation of
the Registrant (incorporated by reference to Exhibit 3.1 to Current Report
on Form 8-K filed by the Registrant on January 13, 2009, File No.
000-14412).
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3.3
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Amended
and Restated Bylaws of the Registrant (incorporated by reference to
Exhibit 3(ii) to Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, File No. 000-14412).
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3.4
|
Amendments
to Bylaws of the Registrant (incorporated by reference to Exhibit 3iia to
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2003, File No. 000-14412).
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4.1*
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Form
of Deposit Agreement, including form of Depositary Receipt
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4.2*
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Form
of Warrant Agreement, including form of Warrant
Certificate
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4.3*
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Form
of Unit Certificate
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4.4*
|
Form
of Preferred Stock Certificate
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5.1
|
Opinion
of Stoll Keenon Ogden PLLC
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12.1
|
Computation
of Ratio of Earnings to Fixed Charges and Preferred
Dividends
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23.1
|
Consent
of Crowe Horwath LLP
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24.1
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Power
of Attorney with respect to directors of the registrant (included on the
signature page of this registration statement)
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*
|
To
be filed by a post-effective amendment to this registration statement or
as an exhibit to a Current Report on Form 8-K and incorporated by
reference herein.
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PART
II
Information
Not Required In Prospectus
Item 14. Other Expenses of Issuance
and Distribution.
The
estimated fees and expenses (other than underwriting discounts and commissions)
payable by us in connection with the offerings described in this registration
statement are set forth below. All fees and expenses (except for SEC
registration fees) are estimates.
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SEC
registration fee
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$ |
1,953 |
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Printing
costs*
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1,000 |
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Legal
fees and expenses*
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12,500 |
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Accounting
fees and expenses*
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4,500 |
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Miscellaneous*
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1,000 |
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Total
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$ |
20,953 |
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*Does not
include fees and expenses associated with preparing prospectus supplements and
relating to offerings of particular proceedings.
Item 15. Indemnification of Directors
and Officers.
Indemnification
of corporate directors and officers is governed by Sections 271B.8-500 through
271B.8-580 of the Kentucky Business Corporation Act (the “Kentucky Act”). Under
the Kentucky Act, a person may be indemnified by a corporation against
judgments, fines, amounts paid in settlement and reasonable expenses (included
attorneys’ fees) actually and necessarily incurred by him in connection with any
threatened or pending suit or proceeding or any appeal thereof (other than an
action by or in the right of the corporation), whether civil or criminal, by
reason of the fact that he is or was a director or officer of the corporation or
is or was serving at the request of the corporation as a director or officer,
employee or agent of another corporation of any type or kind, domestic or
foreign, if such director or officer acted in good faith for a purpose which he
reasonably believed to be in the best interest of the corporation and, in
criminal actions or proceedings only, in addition, had no reasonable cause to
believe that his conduct was unlawful. A Kentucky corporation may
indemnify a director or officer thereof in a suit by or in the right of the
corporation against amounts paid in settlement and reasonable expenses,
including attorneys’ fees, actually and necessarily incurred as a result of such
suit if such director or officer acted in good faith for a purpose which he
reasonably believed to be in the best interests of the corporation. A
Kentucky corporation may purchase and maintain liability insurance on behalf of
the directors and officers for claims asserted against them or incurred by them
in their capacity or arising out of their status as director or
officer.
Generally, the registrant’s bylaws
require the registrant indemnify its directors and officers to the extent
permitted by Kentucky law.
Item 16.
Exhibits.
The
exhibits to this registration statement are listed in the exhibit index, which
appears elsewhere herein and is incorporated herein by reference.
Item 17.
Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of 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) (§230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement.
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however,
That:
(A)
Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
registration statement is on Form S–8 (§239.16b of this chapter), and the
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 (15 U.S.C. 78m or 78o(d)) that are incorporated by
reference in the registration statement; and
(B)
Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if
the registration statement is on Form S–3 (§239.13 of this chapter) or Form F–3
(§239.33 of this chapter) and the 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) (§230.424(b) of this chapter) that is part of the
registration statement.
(C) Provided further, however ,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is for an offering of asset-backed securities on Form S–1 (§239.11 of
this chapter) or Form S–3 (§239.13 of this chapter), and the information
required to be included in a post-effective amendment is provided pursuant to
Item 1100(c) of Regulation AB (§229.1100(c)).
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(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) If
the registrant is a foreign private issuer, to file a post-effective amendment
to the registration statement to include any financial statements required by
Item 8.A. of Form 20–F at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise required by
Section 10(a)(3) of the Act need not be furnished, provided that the registrant
includes in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is at least as
current as the date of those financial statements. Notwithstanding the
foregoing, with respect to registration statements on Form F–3, a post-effective
amendment need not be filed to include financial statements and information
required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such
financial statements and information are contained in periodic 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 Form F–3.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If
the registrant is relying on Rule 430B (§230.430B of this chapter):
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) (§230.424(b)(3) of
this chapter) 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
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
(§230.424(b)(2), (b)(5), or (b)(7) of this chapter) 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) (§230.415(a)(1)(i), (vii), or (x) of this chapter)
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 that prospectus relates, 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;
or
(ii) If
the registrant is subject to Rule 430C (§230.430C of this chapter), each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B
or other than prospectuses filed in reliance on Rule 430A (§230.430A of this
chapter), shall be deemed to be part of and included in the registration
statement as of the date it is first used after effectiveness. 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 first use, 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 date of first
use.
(6) 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 (§230.424 of this
chapter);
(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.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, Farmers Capital Bank
Corporation 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, in the City of Frankfort, Commonwealth of Kentucky, on October
8, 2009.
FARMERS CAPITAL BANK
CORPORATION
By: /s/ G. Anthony
Busseni
G.
Anthony Busseni
President
and Chief Executive Officer
POWER OF
ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears immediately
below constitutes and appoints G. Anthony Busseni and C. Douglas Carpenter, and
each of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution, for him or her and in his or her name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same
with all exhibits thereto, and all supplements and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents or any of them or their
substitute or 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.
|
Name
|
|
Title
|
Date
|
|
|
|
|
|
| /s/ G.
Anthony Busseni |
|
President,
Chief Executive Officer
|
October
8, 2009
|
|
G.
Anthony Busseni
|
|
and
Director (principal executive
|
|
|
|
|
officer
of the Registrant)
|
|
|
|
|
|
|
| /s/ C.
Douglas Carpenter |
|
Senior
Vice President, Secretary and
|
October
8, 2009
|
|
C.
Douglas Carpenter
|
|
Chief
Financial Officer (principal
|
|
|
|
|
financial
and accounting officer)
|
|
|
|
|
|
|
| /s/ Frank
W. Sower, Jr. |
|
Chairman
of the Board and Director
|
October
8, 2009
|
|
Frank
W. Sower, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Director
|
October
__, 2009
|
|
J.
Barry Banker
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
R. Terry Bennett
|
|
Director
|
October
8, 2009
|
|
R.
Terry Bennett
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
/s/
Ben F. Brown
|
|
Director
|
October
9, 2009
|
|
Ben
F. Brown
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Lloyd C. Hillard, Jr.
|
|
Director
|
October
8, 2009
|
|
Lloyd
C. Hillard, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Dr. Donald J. Mullineaux
|
|
Director
|
October
7, 2009
|
|
Dr.
Donald J. Mullineaux
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Robert Roach, Jr.
|
|
Director
|
October 9,
2009
|
|
Robert
Roach, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Dr. Donald A. Saelinger
|
|
Director
|
October
8, 2009
|
|
Dr.
Donald A. Saelinger
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Marvin E. Strong, Jr.
|
|
Director
|
October 9,
2009
|
|
Marvin
E. Strong, Jr.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Dr. John D. Sutterlin
|
|
Director
|
October
9, 2009
|
|
Dr.
John D. Sutterlin
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
October
__, 2009
|
|
Shelley
S. Sweeney
|
|
|
|