First Citizens Bancshares Inc 8-K, filed Mar 12, 2020
First Citizens Bancshares Inc (FCNCA)
8-K
2020-03-12
For: 2020-03-11
View Original
Added on
April 10, 2026
About this 8-K
First Citizens Bancshares Inc filed this 8-K on March 12, 2020, reporting on events of March 11, 2020.
Items reported
- Item 3.03: Change to shareholders' rights
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 11, 2020
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction
of incorporation) |
(Commission File Number)
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(IRS Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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Registrant's telephone number, including area code: (919 )
716-7000
(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities Registered Pursuant to Section 12(b) of the Securities Exchange Act of 1934:
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Title of each class
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Trading Symbol
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Name of each exchange on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or
Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
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Item 3.03.
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Material Modification to Rights of Security Holders
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On March 12, 2020, First Citizens BancShares, Inc. (the “Company”) issued and sold an aggregate of 13,800,000 depositary shares (the
“Depositary Shares”), each representing a 1/40th interest in a share of 5.375% Non-Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share (the “Series A Preferred Stock”), with a liquidation preference of $25 per Depositary Share
(equivalent to $1,000 per share of Series A Preferred Stock). The Depositary Shares were issued and sold pursuant to the previously disclosed
Underwriting Agreement, among the Company, as issuer, the Company’s wholly-owned subsidiary First-Citizens Bank & Trust Company, and Piper Sandler & Co., as representative of the several underwriters named therein. The Depositary Shares are represented by depositary receipts (the “Depositary Receipts”). On March 11, 2020, the Company filed a Certificate of Designation (the
“Certificate of Designation”) with the Secretary of State of the State of Delaware, establishing the terms, preferences, privileges, designations, rights, qualifications, limitations, and restrictions thereof, of the Series A Preferred Stock. Holders
of the Depositary Shares will be entitled to all proportional rights and preferences of the Series A Preferred Stock represented thereby (including dividend, voting, redemption, and liquidation rights).
Under the terms of the Series A Preferred Stock, the ability of the Company to (i) declare, pay, or set aside for payment any dividend or
distribution on its common stock or any other shares of capital stock ranking junior to the Series A Preferred Stock, (ii) repurchase, redeem, or otherwise acquire for consideration, directly or indirectly, any shares of its common stock or other
capital stock ranking junior to the Series A Preferred Stock, or (iii) repurchase, redeem, or otherwise acquire for consideration, directly or indirectly, any shares of capital stock ranking on parity with the Series A Preferred Stock, including the
Series A Preferred Stock, will in each case be subject to restrictions in the event that the Company does not declare dividends on the Series A Preferred Stock for the most recently completed dividend period. The foregoing description of the
Certificate of Designation is qualified in its entirety by reference to the full text of the Certificate of Designation, a copy of which is filed as Exhibit 3.2 to the Company’s Registration Statement on Form 8-A filed on March 12, 2020 and is
incorporated herein by reference.
In connection with the issuance of
the Depositary Shares, the Company entered into a Deposit Agreement, dated March 12, 2020 (the “Deposit Agreement”), among the Company, Broadridge Corporate Issuer Solutions, Inc., and the holders from time to time of the Depositary
Receipts. The Series A Preferred Stock represented by the Depositary Shares were deposited against the delivery of the Depositary Receipts
pursuant to the Deposit Agreement. The foregoing description of the Deposit Agreement and the Depositary Receipts are qualified in their entirety by reference to the full text of the Deposit Agreement and the form of Depositary Receipt, copies of which are filed as Exhibit 4.2 and Exhibit 4.3, respectively, to the Company’s Registration Statement on Form 8-A filed March 12, 2020
and are incorporated herein by reference.
A copy of the opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., counsel to the Company, relating to the
legality of the Depositary Shares and the Series A Preferred Stock is filed as Exhibit 5.1 hereto.
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Item 5.03.
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
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The Certificate of Designation became effective upon filing with the Secretary of State of the State of Delaware, and it amends the
Company’s Restated Certificate of Incorporation, as amended. The terms of the Series A Preferred Stock are more fully described in Item 3.03 of this Current Report on Form 8-K and the Certificate of Designation, which is filed as Exhibit 3.2 to the
Company’s Registration Statement on Form 8-A filed on March 12, 2020, both of which are incorporated by reference herein.
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Item 9.01.
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Financial Statements and Exhibits
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(d) Exhibits. The following exhibits accompany this
report.
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Exhibit No.
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Description
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Certificate of Designation of 5.375% Non-Cumulative Perpetual Preferred Stock, Series A, of the Company, filed with the Secretary of State of the
State of Delaware and effective March 11, 2020 (incorporated herein by reference to Exhibit 3.2 to the Company’s Registration Statement on Form 8-A, filed on March 12, 2020)
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Specimen of the Company’s 5.375% Non-Cumulative Perpetual Preferred Stock, Series A Certificate (incorporated
by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A, filed on March 12, 2020)
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Deposit Agreement, dated as of March 12, 2020, among the Company, Broadridge Corporate Issuer Solutions, Inc., as depositary, and the holders from
time to time of the depositary receipts described therein (incorporated by reference to Exhibit 4.2 to the Company’s Registration
Statement on Form 8-A, filed on March 12, 2020)
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Form of Depositary Receipt (included as Exhibit A in Exhibit 4.2 hereto)
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Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
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Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. (included in Exhibit 5.1 hereto)
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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First Citizens BancShares, Inc.
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(Registrant)
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Date:
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March 12, 2020
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By: /s/ Craig L. Nix
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Craig L. Nix
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Chief Financial Officer
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Exhibit 5.1
SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, L.L.P.
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OFFICES
Wells Fargo Capitol Center
150 Fayetteville Street, Suite 2300
Raleigh, North Carolina 27601
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March 12, 2020
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MAILING ADDRESS
P.O. Box 2611
Raleigh, North Carolina
27602-2611
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TELEPHONE: (919) 821-1220
FACSIMILE: (919) 821-6800
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First Citizens BancShares, Inc.
4300 Six Forks Road
Raleigh, North Carolina 27609
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Re:
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First Citizens BancShares, Inc. /
Depositary Shares, Each Representing a 1/40th Interest in a Share of 5.375%
Non-Cumulative Perpetual Preferred Stock, Series A
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Ladies and Gentlemen:
We have acted as counsel to First Citizens BancShares, Inc., a Delaware corporation (the “Company”), in connection with the offering and sale by the Company of 13,800,000 depositary shares (“Depositary Shares”), each such
depositary share representing ownership of a 1/40th interest in a share of the Company’s 5.375% Non-Cumulative Perpetual Preferred Stock, Series A, $0.01 par value per share (the “Preferred
Stock”), pursuant to (i) the automatic shelf registration statement on Form S-3 (File No. 333-236647) (the “Registration Statement”), filed by the Company on
February 26, 2020, with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), including the related prospectus therein (the “Base Prospectus”), (ii) a preliminary prospectus supplement dated March 4,
2020, filed with the Commission pursuant to Rule 424(b) promulgated under the Securities Act, and (iii) a prospectus supplement dated March 5, 2020, filed with the Commission pursuant to Rule 424(b) (together with the Base Prospectus, the “Prospectus”). The Depositary Shares are being sold pursuant to the underwriting agreement dated March 5, 2020, among Piper Sandler & Co., the Company, and First-Citizens Bank
& Trust Company (the “Underwriting Agreement”). Shares of Preferred Stock will, when issued, be deposited by the Company against delivery of depositary receipts (“Depositary Receipts”) to be issued by Broadridge Corporate Issuer Solutions, as depositary (the “Depositary”)
under the Deposit Agreement dated March 12, 2020, among the Company, the Depositary and the holders from time to time of the Depositary Receipts issued thereunder (the “Deposit Agreement”).
Each Depositary Receipt will evidence one or more Depositary Shares. Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Registration Statement. This opinion letter is being furnished in
accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.
We have examined the Registration Statement, the Prospectus, the Underwriting Agreement, the Deposit Agreement (including the form of
Depositary Receipt attached thereto), the Restated Certificate of Incorporation of the Company, the Certificate of Designation of the Preferred Stock, the Amended and Restated Bylaws of the Company and such other documents and matters of law and fact
as we, in our professional judgment, have deemed appropriate to render the opinions contained herein. In our examination, we have assumed the legal capacity of natural persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to originals of all documents submitted to us as certified copies or photocopies, and the authenticity of originals of such latter documents. With respect to certain facts, we have considered it
appropriate to rely upon certificates or other comparable documents of public officials and officers or other appropriate representatives of the Company, without investigation or analysis of any underlying data contained therein.
First Citizens BancShares, Inc.
March 12, 2020
Page 2
Based upon and subject to the foregoing and the further assumptions, limitations and qualifications hereinafter expressed, it is our
opinion that:
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The issuance of the shares of Preferred Stock has been duly authorized and, when duly issued and delivered against payment therefor for in accordance with the
Underwriting Agreement and the Depositary Agreement, the shares of Preferred Stock will be validly issued, fully paid and nonassessable.
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The issuance of the Depositary Shares has been duly authorized and, when duly issued and delivered against payment therefor in the form of Depositary Receipts in
accordance with the Underwriting Agreement and the Deposit Agreement, the Depositary Shares will be validly issued and will entitle the holders of Depositary Shares to the rights specified in the Deposit Agreement and the Depositary
Receipts.
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We have assumed that the shares of Preferred Stock have been deposited with the Depositary in accordance with the Deposit Agreement,
that the Deposit Agreement has been duly authorized, executed and delivered by the Depositary, that the certificates evidencing the shares of Preferred Stock and the Depositary Receipts conform to the specimens thereof examined by us, that the
Depositary Receipts have been duly executed and delivered by one of the Depositary’s authorized officers and, if necessary, have been duly countersigned by the registrar for the Depositary Receipts, that the certificate evidencing shares of Preferred
Stock has been duly countersigned and registered by the registrar and transfer agent for the Preferred Stock.
We express no opinion as to any matter other than as expressly set forth above, and no opinion, other than the opinions given herein,
may be inferred or implied herefrom. Our opinions expressed herein are subject to (i) the effect of applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and similar laws affecting the enforcement of creditors’ rights
generally, (ii) the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law), which may, among other things, deny rights of specific performance, and (iii) public policy considerations that may
limit the rights of parties to obtain certain remedies. We express no opinion with respect to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent
deemed to constitute a penalty, (b) any provision purporting to waive, or to reconstitute terms to avoid, a claim or defense of usury, (c) any proxy, power or trust, (d) any provision for exclusivity, election or cumulation of rights or remedies,
(e) any provision purporting to authorize a party to act in its sole discretion or to provide that determination by a party is conclusive, (f) any waiver of claims, defenses, rights granted by law, notice, opportunity for hearing, evidentiary
requirements, statutes of limitation, trial by jury or other procedural rights, (g) any provision requiring payment of attorneys’ fees, (h) any provision for the indemnification of or contribution to a party with respect to a liability where such
indemnification or contribution is contrary to applicable law or public policy, (i) any grant of setoff rights, (j) any provision requiring waivers or amendments to be made only in writing, (k) any provision prohibiting, restricting or requiring
consent to the assignment or transfer of any right or property, (l) any consent to, or restriction upon, governing law, jurisdiction of courts, venue of actions, means of service of process, arbitration or judicial relief, (m) any provision regarding
severability, or (n) any provision to the extent it requires that a claim with respect to a security denominated other than in U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a
particular date, to the extent applicable law otherwise provides.
First Citizens BancShares, Inc.
March 12, 2020
Page 3
The opinions expressed herein are limited to matters governed by the Delaware General Corporation Law and the laws of the State of New
York, and no opinion is expressed herein as to the laws of any other jurisdiction. Opinions involving matters arising under the laws of the State of New York are given by lawyers in our firm who are licensed to practice in that jurisdiction. The
opinions expressed herein do not extend to compliance with federal or state securities laws relating to the offer or sale of the Securities, and we express no opinion with respect to any law,
rule or regulation that is applicable to any party to the Underwriting Agreement or the Depositary Agreement,or to the transactions contemplated thereby, solely because such law, rule
or regulation is part of a regulatory regime applicable as a result of the specific assets or business operations of any such party.
We hereby consent to the reference to our firm under the caption “Legal Matters” in the Prospectus, and to the filing of this opinion
letter as an exhibit to a current report of the Company on Form 8-K and thereby incorporated by reference in the Registration Statement. Such consent shall not be deemed to be an admission that our firm is within the category of persons whose
consent is required under Section 7 of the Securities Act or the regulations promulgated pursuant to the Securities Act.
Our opinions herein are expressed as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or
any other matters that may come to our attention after the date hereof that may affect our opinions expressed herein.
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Sincerely yours,
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SMITH, ANDERSON, BLOUNT, DORSETT,
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MITCHELL & JERNIGAN, L.L.P.
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/s/ Smith, Anderson, Blount, Dorsett,
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Mitchell & Jernigan, L.L.P.
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