As
filed with the Securities and Exchange Commission on December 20,
2005.
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File
No. 333-_______
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SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
UNITED
COMMUNITY BANKS, INC.
(Exact
Name of Issuer as Specified in its Charter)
Georgia
(State
or Other Jurisdiction of
Incorporation
or Organization)
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P.O.
Box 398
63
Highway 515
Blairsville,
Georgia 30512
(Address
of Issuer’s Principal Executive Offices)
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58-1807304
(I.R.S.
Employer
Identification
Number)
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United
Community Banks Employee Stock Purchase Plan
(Full
Title of the Plan)
Jimmy
C. Tallent
President
and Chief Executive Officer
P.O.
Box 398
63
Highway 515
Blairsville,
Georgia 30512
(706)
781-2265
(Name,
Address and Telephone Number, Including Area Code, of Agent for
Service)
Copies
to:
James
W. Stevens
Kilpatrick
Stockton LLP
1100
Peachtree Street, N.E. , Suite 2800
Atlanta,
Georgia 30309
(404)
815-6500
(404)
541-3400 (fax)
.
CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering
Price Per Unit
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Proposed
Maximum
Aggregate
Offering Price
|
Amount
of
Registration
Fee
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Common
Stock $1.00 par value, to be issued under the Employee Stock Purchase
Plan
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250,000(1)
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$
27.13 (2)
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$6,872,500(2)
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$
725.73
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(1)
In addition, pursuant to Rule 416 of the Securities Act of 1933,
as
amended, this Registration Statement shall be deemed to cover any
additional shares of Common Stock of the Registrant as may be issuable
in
the event of a stock dividend, stock split, recapitalization, or
other
similar changes in the capital structure, merger, consolidation,
spin-off,
split-off, spin-out, split-up, reorganization, partial or complete
liquidation, or other distribution of assets, issuance of rights
or
warrants to purchase securities, or any other corporate transaction
or
event having an effect similar to any of the foregoing.
(2)
Estimated solely for the purpose of calculating the registration
fee
pursuant to Rules 457(c) and (h) under the Securities Act of 1933,
as
amended, on the basis of $27.13 per share, the average of the high
and low
prices per share of the Common Stock on December 16, 2005, as reported
by
the Nasdaq National Market.
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PART
I. INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The
documents containing the information specified in Part I of Form S-8 will be
sent or given to participating employees as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the “Securities Act”).
Such documents and the documents incorporated by reference herein pursuant
to
Item 3 of Part II hereof, taken together, constitute a prospectus that meets
the
requirements of Section 10(a) of the Securities Act.
PART
II. INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE
The
following documents filed by United Community Banks, Inc. (the “Company” or the
“Registrant”) are incorporated by reference into this Registration Statement and
are deemed to be a part hereof from the date of the filing of such
documents:
(1) The
Registrant’s Annual Report on Form 10-K for its fiscal year ended December 31,
2004.
(2) The
Registrant’s Quarterly Report on Form 10-Q for its fiscal quarter ended March
31, 2005.
(3) The
Registrant’s Quarterly Report on Form 10-Q for its fiscal quarter ended June 30,
2005.
(4) The
Registrant’s Quarterly Report on Form 10-Q for its fiscal quarter ended
September 30, 2005.
(5) All
other
reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end
of the fiscal year covered by the Registrant’s Annual Report on Form 10-K for
its fiscal year ended December 31, 2004.
(6) A
description of the Registrant’s Common Stock contained in the Registrant’s
Statement on Form S-3, File No. 3-116623, filed with the Commission on June
18,
2004, including any amendment or report filed for the purpose of updating such
description.
(7) All
other
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities that remain unsold.
ITEM
4. DESCRIPTION OF SECURITIES
Not
applicable (the Registrant’s common stock is registered under Section 12(g) of
the Exchange Act).
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The
validity of the issuance of the shares of common stock offered hereby and
certain other legal matters will be passed upon for us by Kilpatrick Stockton
LLP, Atlanta, Georgia. As of the date of this prospectus supplement, Kilpatrick
Stockton attorneys participating in this matter own approximately 25,516 shares
of our common stock.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The
Registrant’s Articles of Incorporation provide that no director shall be
personally liable to the Registrant or its shareholders for breach of his or
her
duty of care or other duty as a director, but only to the extent permitted
from
time to time by the Georgia Business Corporation Code.
The
Registrant’s Bylaws require the Registrant to indemnify directors, officers,
employees, and agents against judgments, fines, penalties, amounts paid in
settlement, and expenses, including attorney’s fees, resulting from various
types of legal actions or proceedings instituted by third parties if the actions
of the director, officer, employee, or agent being indemnified meet the
standards of conduct specified therein.
In
addition, the Bylaws require the Registrant to indemnify directors, officers,
employees, and agents for expenses actually and reasonably incurred in
connection with legal actions or proceedings instituted by or in the right
of
the Registrant to procure a judgment in our favor, if the actions of the
director, officer, employee, or agent being indemnified meet the standards
of
conduct set forth therein. However, we will not indemnify a director, officer,
employee, or agent for such expenses if such person is adjudged liable to the
Registrant, unless so ordered by the court in which the legal action or
proceeding is brought.
A
determination concerning whether or not the applicable standard of conduct
has
been met by a director, officer, employee, or agent seeking indemnification
must
be made by (1) a disinterested majority of the board of directors, (2) our
legal
counsel, if a quorum of disinterested directors is not obtainable or if the
disinterested directors so order, or (3) an affirmative vote of a majority
of
shares held by the shareholders. No indemnification may be made to or on behalf
of a director, officer, employee or agent in connection with any other
proceeding in which such person was adjudged liable on the basis that personal
benefit was improperly received by him or her.
As
provided under Georgia law, the liability of a director may not be eliminated
or
limited (1) for any appropriation, in violation of his duties, of any business
opportunity of the Registrant, (2) for acts or omissions which involve
intentional misconduct or a knowing violation of law, (3) for unlawful corporate
distributions or (4) for any transaction from which the director received an
improper benefit.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to the Registrant’s directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable.
The
Registrant’s directors and officers are insured against losses arising from any
claim against them as such for wrongful acts or omissions, subject to
limitations.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED
Not
applicable.
ITEM
8. EXHIBITS
The
exhibits included as part of this Registration Statement are as
follows:
Exhibit
Number
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Description
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4
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United
Community Banks Employee Stock Purchase Plan, dated December 16,
2005
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5
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Opinion
of Kilpatrick Stockton, LLP
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23.1
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Consent
of Porter Keadle Moore, LLP
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23.2
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Consent
of Kilpatrick Stockton LLP (included in Exhibit 5)
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24
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Power
of Attorney (included on Signature Page of this Registration
Statement)
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ITEM
9. UNDERTAKINGS
(a) The
undersigned Registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent 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
paragraphs (1)(i) and (1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of
the
Exchange Act, that are incorporated by reference in the registration
statement.
(2) That,
for the
purpose of determining any liability under the Securities Act, 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.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) 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.
(c) The
undersigned Registrant hereby undertakes to deliver or cause to be delivered
with the prospectus, to each person to whom the prospectus is sent or given,
the
latest annual report to security holders that is incorporated by reference
in
the prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where interim
financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions of the Articles of Incorporation or Bylaws or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Registrant certifies that it
has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on
its
behalf by the undersigned, thereunto duly authorized, in the City of
Blairsville, State of Georgia, on December 19, 2005.
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UNITED
COMMUNITY BANKS, INC.
By: /s/
Jimmy C.
Tallent
Jimmy C. Tallent
President and Chief Executive
Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Jimmy
C.
Tallent and Robert L. Head, Jr., and either of them, his true and lawful
attorneys-in-fact with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and
all
amendments (including post-effective amendments) to this Registration Statement
and to cause the same to be filed, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
granting to said attorneys-in-fact and agents, full power and authority to
do
and perform each and every act and thing whatsoever requisite and desirable
to
be done in and about the premises, as fully to all intents and purposes as
the
undersigned might or could do in person, hereby ratifying and confirming all
acts and things that said attorneys-in-fact and agents, or their substitutes
or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has
been
signed by the following persons, in the capacities indicated, on
December 19, 2005.
Signature
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Title
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/s/
Jimmy C. Tallent
Jimmy
C. Tallent
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President,
Chief Executive Officer and Director
(Principal
Executive Officer)
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/s/
Rex S. Schuette
Rex
S. Schuette
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Executive
Vice President and Chief Financial Officer
(Principal
Financial Officer)
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/s/
Alan H. Kumler
Alan
H. Kumler
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Senior
Vice President, Controller and Chief Accounting Officer
(Principal
Accounting Officer)
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/s/
Robert L. Head, Jr.
Robert
L. Head, Jr.
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Chairman
of the Board
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/s/
W.C. Nelson, Jr.
W.
C. Nelson, Jr.
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Vice
Chairman of the Board
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/s/
A. William Bennett
A.
William Bennett
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Director
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/s/
Robert H. Blalock
Robert
H. Blalock
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Director
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/s/
Guy W. Freeman
Guy
W. Freeman
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Director
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/s/
Thomas C. Gilliland
Thomas
C. Gilliland
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Director
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/s/
Charles Hill
Charles
Hill
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Director
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/s/
Hoyt O. Holloway
Hoyt
O. Holloway
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Director
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/s/
Clarence W. Mason, Sr.
Clarence
W. Mason, Sr.
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Director
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/s/
Tim Wallis
Tim
Wallis
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Director
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EXHIBIT
INDEX
Exhibit
Number
|
Description
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4
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United
Community Banks Employee Stock Purchase Plan, dated December 16,
2005
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5
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Opinion
of Kilpatrick Stockton, LLP
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23.1
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Consent
of Porter Keadle Moore, LLP
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23.2
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Consent
of Kilpatrick Stockton LLP (included in Exhibit 5)
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24
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Power
of Attorney (included on Signature Page of this Registration
Statement)
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