As filed with the Securities and Exchange Commission on June 20, 2003
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIRST COMMUNITY BANCSHARES, INC.
(Exact Name of Registrant as Specified in Its Charter)
NEVADA 55-0694814
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer Identification
Organization) No.)
ONE COMMUNITY PLACE
BLUEFIELD, VIRGINIA 24605
(Address of Principal Executive Offices, Including Zip Code)
THE COMMONWEALTH BANK AMENDED AND RESTATED STOCK OPTION PLAN
(Full Title of the Plan)
JOHN M. MENDEZ
PRESIDENT AND CHIEF EXECUTIVE OFFICER
FIRST COMMUNITY BANCSHARES, INC.
ONE COMMUNITY PLACE
BLUEFIELD, VIRGINIA 24605
(Name and Address of Agent for Service)
(276) 326-9000
(Telephone Number, Including Area Code, of Agent for Service)
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Copy to:
JEFFREY D. HAAS, ESQ.
NORMAN B. ANTIN, ESQ.
PATTON BOGGS LLP
2550 M STREET, NW
WASHINGTON D.C., 20037-1350
(202) 457-6000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
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Common Stock,
par value $1.00 per share 112,124 shares (2) $35.19 $3,945,644 $320
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933, as
amended, based on the average of the high and low prices on June 17,
2003, as reported by the Nasdaq National Market.
(2) Together with an indeterminable number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant
to the CommonWealth Bank Amended and Restated Stock Option Plan as a
result of a stock split, stock dividend or similar adjustment of the
outstanding Common Stock of the Registrant.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by First Community Bancshares, Inc. (the
"Registrant") are hereby incorporated by reference in this Registration
Statement (in each instance, our Commission file number is 000-19297):
(a) Our Annual Report on Form 10-K for the year ended
December 31, 2002, filed on March 31, 2003.
(b) Our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2003 filed on May 15, 2003 and our Current Reports on Form 8-K filed
on January 16, 2003, January 27, 2003, January 28, 2003, February 26, 2003,
March 4, 2003, March 25, 2003, March 26, 2003, March 28, 2003, April 22, 2003,
May 22, 2003, June 5, 2003, June 9, 2003 and June 18, 2003.
(c) The description of our Common Stock contained in the
Registrant's Form 8-A as filed with the Commission pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), on May 20,
1991.
All documents filed by the Registrant pursuant to the Exchange
Act, after the date hereof and prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered
hereby have been sold or which deregisters all such securities then remaining
unsold, shall also be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof commencing on the respective
dates on which such reports and documents are filed with the Commission. Any
statement incorporated by reference herein shall also be deemed to be modified
or superseded for the purposes of this Registration Statement and any amendment
or supplement hereto to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of this Registration Statement or any such amendment or
supplement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 27 of the Registrant's Bylaws requires indemnification of the
Registrant's directors and officers and any person serving as such for another
corporation at our request, against costs and expenses at any time reasonably
incurred by the director or officer arising out of or in connection with any
claim, action, suit or proceeding, civil or criminal, against him or to which he
may be made a party by reason of his being or having been such director or
officer except in relation to matters as to which he shall be adjudged in such
action, suit or proceeding to be liable for gross negligence or willful
misconduct in the performance of his duty to the Registrant. If, in the judgment
of the Board of Directors of the Registrant, a settlement of any claim, action,
suit or proceeding so arising be deemed in the best interests of the Registrant,
any such director or officer shall be reimbursed for any amounts paid by him in
effecting such settlement and reasonable expenses incurred in connection
therewith. The foregoing right of indemnification shall be, in addition to, any
and all rights to which any director or officer may be entitled as a matter of
law.
The Nevada General Corporation Law provides as follows:
78.7502 DISCRETIONARY AND MANDATORY INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS: GENERAL PROVISIONS.
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the person is liable pursuant to NRS
78.138 or did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, or that, with
respect to any criminal action or proceeding, he had reasonable cause to believe
that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
78.751 AUTHORIZATION REQUIRED FOR DISCRETIONARY INDEMNIFICATION; ADVANCEMENT OF
EXPENSES; LIMITATION ON INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
1. Any discretionary indemnification pursuant to NRS 78.7502, unless
ordered by a court or advanced pursuant to subsection 2, may be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum
consisting of directors who were not parties to the action, suit or
proceeding;
(c) If a majority vote of a quorum consisting of directors who were
not parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
2. The articles or incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
3. The indemnification pursuant to NRS 78.7502 and advancement of expenses
authorized in or ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the
articles or incorporation or any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, for either an action in his
official capacity or an action in another capacity while holding his
office, except that indemnification, unless ordered by a court pursuant
to NRS 78.7502 or for the advancement of expenses made pursuant to
subsection 2, may not be made to or on behalf of any director or
officer if a final adjudication establishes that his acts or omissions
involved intentional misconduct, fraud or a knowing violation of the law
and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
78.752 INSURANCE AND OTHER FINANCIAL ARRANGEMENTS AGAINST LIABILITY OF
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.
1. A corporation may purchase and maintain insurance or make other
financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
2. The other financial arrangements made by the corporation pursuant to
subsection 1 may include the following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by granting a
security interest or other lien on any assets of the corporation.
(d) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide protection
for a person adjudged by a court of competent jurisdiction, after exhaustion of
all appeals therefrom, to be liable for intentional misconduct, fraud or a
knowing violation of law, except with respect to the advancement of expenses or
indemnification ordered by a court.
3. Any insurance or other financial arrangement made on behalf of a person
pursuant to this section may be provided by the corporation or any other person
approved by the board of directors, even if all or part of the other person's
stock or other securities is owned by the corporation.
4. In the absence of fraud:
(a) The decision of the board of directors as to the propriety of
the terms and conditions of any insurance or other financial arrangement
made pursuant to this section and the choice of the person to provide
the insurance or other financial arrangement is conclusive; and
(b) The insurance or other financial arrangement:
(1) Is not void or voidable; and
(2) Does not subject any director approving it to personal liability
for his action, even if a director approving the insurance or other
financial arrangement is a beneficiary of the insurance or other
financial arrangement.
5. A corporation or its subsidiary which provides self-insurance for itself
or for another affiliated corporation pursuant to this section is not subject to
the provisions of Title 57 of NRS.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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5.1 Opinion of Patton Boggs LLP regarding the legality of the Common Stock being
registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Patton Boggs LLP (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included in the signature page of this Registration Statement).
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
to include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered 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 of 1933, 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) 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 Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933, as amended, 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 of 1933, as amended, and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Commonwealth of Virginia, on June 20, 2003.
FIRST COMMUNITY BANCSHARES, INC.
By: /s/ John M. Mendez
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John M. Mendez
President and Chief Executive Officer
POWER OF ATTORNEY
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 date indicated. Each person whose signature appears below,
hereby makes, constitutes and appoints John M. Mendez or his true and lawful
attorney, with full power to sign for such person and in such person's name and
capacity indicated below, and with full power of substitution, any and all
amendments to this Registration Statement, hereby ratifying and confirming such
person's signature as it may be signed by said attorney to any and all
amendments.
NAME TITLE DATE
---- ----- ----
/s/ Sam Clark Director June 20, 2003
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Sam Clark
/s/ Allen T. Hamner Director June 20, 2003
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Allen T. Hamner
/s/ B.W. Harvey Director June 20, 2003
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B. W. Harvey
/s/ I. Norris Kantor Director June 20, 2003
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I. Norris Kantor
/s/ John M. Mendez President, Chief Executive June 20, 2003
------------------------------------- Officer and Director (Principal
John M. Mendez Executive Officer)
/s/ A.A. Modena Director June 20, 2003
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A. A. Modena
/s/ Robert L. Schumacher Chief Financial Officer June 20, 2003
------------------------------------- (Principal Financial and
Robert L. Schumacher Accounting Officer)
/s/ Robert E. Perkinson, Jr. Director June 20, 2003
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Robert E. Perkinson, Jr.
/s/ William P. Stafford Chairman of the Board and Director June 20, 2003
-------------------------------------
William P. Stafford
/s/ William P. Stafford, II Director June 20, 2003
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William P. Stafford, II
/s/ W.W. Tinder, Jr. Director June 20, 2003
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W. W. Tinder, Jr.
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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5.1 Opinion of Patton Boggs LLP regarding the legality of the Common Stock being
registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Patton Boggs LLP (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included in the signature page of this Registration Statement).