Sec Form 13D Filing - HOLDING FRANK B JR filing for FIRST CITIZENS BANCSHARES INC (FCNCA) - 2020-10-21

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

Amendment No. 3

FIRST CITIZENS BANCSHARES, INC.

(Name of Issuer)

CLASS B COMMON STOCK, $1.00 PAR VALUE

(Title of Class of Securities)

31946M-20-2

(CUSIP Number)

William R. Lathan, Jr.

Ward and Smith, P.A.

1001 College Court

New Bern, North Carolina 28562

(252) 633-1000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

October 15, 2020

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box  ☐.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D

SCHEDULE 13D

SCHEDULE 13D

SCHEDULE 13D

SCHEDULE 13D

SCHEDULE 13D

This Amendment No. 3 amends and restates the Reporting Persons’ joint Schedule 13D to report the execution and delivery by certain of the Reporting Persons of a Voting Agreement (in the form attached hereto as Exhibit B) in connection with the Issuer’s entry into the Merger Agreement described herein and to update the numbers of shares and percentages of the Issuer’s Class B Common Stock that may be deemed to be beneficially owned by each of them to reflect changes in their beneficial ownership since the filing of the previous amendment.

Item 1. Security and Issuer.

This Statement relates to the Class B Common Stock, $1 par value per share (“Class B Common Stock”), of First Citizens BancShares, Inc. (the “Issuer”). The Issuer’s principal executive offices are located at 4300 Six Forks Road, Raleigh, North Carolina 27609.

Item 2. Identity and Background.

This statement is filed jointly by Frank B. Holding, Jr., Hope H. Bryant, Olivia B. Holding, Claire H. Bristow, and Carson H. Brice, and their mother, Ella Ann L. Holding. The Reporting Persons are members of the same family, but each of them disclaims membership in a group. Their addresses are as follows:

During the last five years, none of the Reporting Persons have been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors), nor have any of them been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which they were or are subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Each of the Reporting Persons is a citizen of the United States of America.

Item 3. Source and Amount of Funds or Other Consideration.

The shares of the Issuer’s Class B Common Stock held individually by Frank B. Holding, Jr., Hope H. Bryant, Olivia B. Holding, Claire H. Bristow and Carson H. Brice, respectively, were acquired in part through gifts from their parents, Frank B. Holding and Ella Ann L. Holding, in part with their personal funds, and in part, directly or indirectly, from or through the estate of their father, Frank B. Holding. Shares held by their children and grandchildren were acquired through gifts from them and Frank B. Holding and Ella Ann L. Holding. Shares held by the various entities listed in the tables below were acquired by those entities with their separate funds or, in the case of the two charitable foundations, contributions by Lewis R. Holding and Frank B. Holding and Ella Ann L. Holding.

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Item 4. Purpose of the Transaction.

Frank B. Holding, Jr., Hope H. Bryant, and Claire H. Bristow’s spouse, Peter M. Bristow, serve as executive officers and directors of the Issuer and, therefore, participate with the Issuer’s management and Board of Directors in the making of policy and the consideration of and taking of action on significant corporate events involving the Issuer. However, shares of the Issuer’s Class B Common Stock beneficially owned by each of them and by each of the other individuals and entities named in the tables below are held as described below for investment purposes.

On October 15, 2020, the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among the Issuer, First-Citizens Bank & Trust Company, a North Carolina chartered commercial bank and direct, wholly owned subsidiary of the Issuer (“FCB”), FC Merger Subsidiary IX, Inc., a direct, wholly owned subsidiary of FCB (“Merger Sub”), and CIT Group Inc., a Delaware corporation (“CIT”) and the parent company of CIT Bank, N.A., a national banking association (“CIT Bank”). Pursuant to the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into CIT, with CIT as the surviving entity (the “First-Step Merger”), and as soon as reasonably practicable following the effective time of the First-Step Merger, CIT will merge with and into FCB, with FCB as the surviving entity (together with the First-Step Merger, the “Mergers”). The Merger Agreement further provides that immediately following the consummation of the Mergers, CIT Bank will merge with and into FCB, with FCB as the surviving bank (together with the Mergers, the “Transaction”).

Upon the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the First-Step Merger (the “Effective Time”), each share of the common stock, par value $0.01 per share, of CIT issued and outstanding immediately prior to the Effective Time (“CIT Common Stock”), except for certain shares of CIT Common Stock owned by CIT or the Issuer, will be converted into the right to receive 0.06200 shares (the “Exchange Ratio,” and such shares, the “Merger Consideration”) of the Issuer’s Class A Common Stock. In addition, at the Effective Time, each share of Fixed-to-Floating Rate Non-Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per share, of CIT (“CIT Series A Preferred Stock”) and 5.625% Non-Cumulative Perpetual Preferred Stock, Series B, par value $0.01 per share, of CIT (“CIT Series B Preferred Stock”) issued and outstanding immediately prior to the Effective Time will automatically be converted into the right to receive one share of a newly created series of preferred stock, Series B, of the Issuer and one share of a newly created series of preferred stock, Series C, of the Issuer, respectively, having such rights, preferences, privileges and voting powers, and limitations and restrictions, taken as a whole, that are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and limitations and restrictions, taken as a whole, of the CIT Series A Preferred Stock and the CIT Series B Preferred Stock, respectively (taking into account that CIT will not survive the consummation of the Transaction and any adjustment to the right of optional redemption by the Issuer that is reasonably necessary to obtain Tier 1 Capital treatment from the Board of Governors of the Federal Reserve System for such preferred stock. Pursuant to the terms set forth in the Merger Agreement, effective as of the Effective Time, the Boards of Directors of the combined company and the combined bank will consist of 14 directors, (i) 11 of whom will be the current Board of Directors of the Issuer, and (ii) three of whom will be selected from among the current Board of Directors of CIT and will include as one of those three Ellen R. Alemany, Chairwoman and Chief Executive Officer of CIT.

As an inducement for CIT to enter into the Merger Agreement, contemporaneously with the execution of the Merger Agreement, Frank B. Holding, Jr. Hope H. Bryant, Claire H. Bristow, and her spouse, Peter M. Bristow, entered into a Voting Agreement (the “Voting Agreement”) with CIT, pursuant to which each such person agreed, among other things:

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The Voting Agreement covers shares totaling approximately 29.43% of the total outstanding voting power of the Issuer’s common stock. Any shares or other voting securities of the Issuer with respect to which one of the signers of the Voting Agreement acquires sole voting power or sole power of disposition (including, without limitation, by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares or upon exercise or conversion of any securities of the Issuer, if any) after the date of the Voting Agreement will automatically become subject to the terms of the Voting Agreement for all purposes thereunder.

The Voting Agreement and all obligations thereunder will terminate upon the earlier to occur of: (i) the Effective Time and (ii) the date of termination of the Merger Agreement in accordance with its terms; provided, however, that certain obligations may continue for 6 months following the termination of the Merger Agreement related to a bona fide Acquisition Proposal (as defined in the Merger Agreement).

The foregoing description of the Voting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Voting Agreement, which is attached hereto as Exhibit B and is incorporated herein by reference.

Item 5. Interest in Securities of the Issuer.

The following tables list shares of the Issuer’s Class B Common Stock as to which each of the Reporting Persons may be considered to have sole or shared voting and/or dispositive power as of the filing date of this Schedule 13D/A, and the percentage of the outstanding shares of the Issuer’s Class B Common Stock (1,005,185 outstanding shares as of October 15, 2020) represented by the shares listed for each Reporting Person. In the aggregate, the reporting persons may be considered to beneficially own 712,594 shares of Class B Common Stock, or approximately 70.89% of the outstanding shares of that class. Other entities in which certain of the Reporting Persons are shareholders and serve as directors hold 26,769 shares of Class B Common Stock, or approximately 2.66% of the outstanding shares of the class. The Reporting Persons disclaim voting and dispositive power with respect to the shares held by those other entities.

In addition to the shares of Class B Common Stock described in the tables below, the Reporting Persons may be considered to beneficially own, in the aggregate, approximately 34.17% of the outstanding shares of the Issuer’s outstanding Class A Common Stock which is a separate class of common stock and 0.80% of the Issuer’s outstanding Depositary Shares, and other entities in which certain of the Reporting Persons are shareholders and serve as directors hold approximately 5.29% of the outstanding shares of Class A Common and 2.03% of the outstanding Depositary Shares . The Reporting Persons disclaim voting and dispositive power with respect to the shares held by those other entities.

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Frank B. Holding, Jr. Mr. Holding is, or may be deemed to be, the beneficial owner of an aggregate of 183,996 shares of Class B Common Stock, amounting to 18.30% of the outstanding Class B Common Stock, as described in the table below.

Mr. Holding, his spouse and son, respectively, receive, or have the sole or shared power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by them individually. Mr. Holding, for the benefit of his children and grandchildren, receives or has the power to direct the receipt of dividends and sale proceeds from the shares held by him as custodian. The distribution of dividends and sale proceed from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of the trusts. The Foundations receive, or their managements have the power to direct the receipt of, dividends and sale proceeds from the shares they hold.

During the 60 days preceding the filing of this Schedule 13D/A, neither Mr. Holding nor any of the other holders of shares listed above purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

Mr. Holding disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows.

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Hope H. Bryant. Mrs. Bryant is, or may be deemed to be, the beneficial owner of an aggregate of 149,833 shares of Class B Common Stock, amounting to 14.91% of the outstanding Class B Common Stock, as described in the table below.

(1) Includes two trusts of which Mrs. Bryant does not serve as a trustee but has the power to vote shares held by the trusts.

Mrs. Bryant and her spouse, respectively, receive or have the sole or shared power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by them individually. The distribution of dividends and sale proceeds from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of those trusts. Each of the entities and foundations listed above receives, or its management has the power to direct the receipt of, dividends and sale proceeds from the shares it holds.

During the 60 days preceding the filing of this Schedule 13D/A, neither Mrs. Bryant nor any of the other holders of shares listed in the table above purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

Mrs. Bryant disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows:

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Olivia B. Holding. Ms. Holding is, or may be deemed to be, the beneficial owner of an aggregate of 167,053 shares of Class B Common Stock, constituting 16.62% of the outstanding Class B Common Stock, as described in the table below.

Ms. Holding receives or has the sole or shared power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by her individually. The distribution of dividends and sale proceeds from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of those trusts. Each of the entities and foundations listed above receives, or its respective officers and directors or manager have the power to direct the receipt of, dividends and sale proceeds from the shares it holds.

During the 60 days preceding the filing of this Schedule 13D/A, neither Ms. Holding nor any of the other holders of shares listed in the table above purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

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Ms. Holding disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows:

Claire H. Bristow. Mrs. Bristow is, or may be deemed to be, the beneficial owner of an aggregate of 113,889 shares of Class B Common Stock, amounting to 11.33% of the outstanding Class B Common Stock, as described in the table below.

Mrs. Bristow and her daughter, respectively, receive or have the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by them individually. The distribution of dividends and sale proceeds from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of those trusts. The distribution of dividends and sale proceeds from shares held by the limited liability companies is determined by Mrs. Bristow’s spouse, as manager, based on the terms of the governing instruments of those entities.

During the 60 days preceding the filing of this Schedule 13D/A, neither Mrs. Bristow nor any of the other holders of shares listed in the table above purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

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Mrs. Bristow disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows:

Carson H. Brice. Mrs. Brice is, or may be deemed to be, the beneficial owner of an aggregate of 118,779 shares of Class B Common Stock, amounting to 11.82% of the outstanding Class B Common Stock, as described in the table below.

Mrs. Brice and her spouse, respectively, receive or have the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares beneficially owned by them individually. Mrs. Brice receives or has the power to direct the receipt of dividends and sale proceeds, for the benefit of her children, from the shares held by her as custodian. The distribution of dividends and sale proceeds from shares held as a trustee and/or beneficiary of trusts is determined based on the terms of the governing instruments of those trusts.

During the 60 days preceding the filing of this Schedule 13D/A, neither Mrs. Brice nor any of the other holders of shares listed in the table above has purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

Mrs. Brice disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock which are not listed in the table above as follows:

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Ella Ann L. Holding. Mrs. Holding is no longer the beneficial owner of any shares of Class B Common Stock.

During the 60 days preceding the filing of this Schedule 13D/A, Mrs. Holding has not purchased or sold any shares of, or effected any other transactions in, Class B Common Stock.

Mrs. Holding disclaims voting and dispositive power with respect to certain shares of the Issuer’s Class B Common Stock as follows:

The information set forth in Item 4 of this Amendment No. 3 is hereby incorporated by reference into this Item 6.

[SIGNATURES APPEAR ON FOLLOWING PAGE.]

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SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

October 19, 2020    

[Schedule 13D/A Signature Page - Class B]

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