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As filed with the Securities and Exchange Commission
on March 31, 1999
Registration No. 333-49759
________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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NEWSOUTH BANCORP, INC.
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(Exact name of Registrant as Specified in Its Charter)
VIRGINIA 56-1999749
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1311 CAROLINA AVENUE, P.O. BOX 2047
WASHINGTON, NORTH CAROLINA 27889
(919) 946-4178
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(Address of Principal Executive Offices)
NEWSOUTH BANCORP, INC. MANAGEMENT RECOGNITION PLAN
NEWSOUTH BANCORP, INC. 1997 STOCK OPTION PLAN
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(Full Title of the Plan)
GARY R. BRONSTEIN, ESQUIRE
JOEL E. RAPPOPORT, ESQUIRE
HOUSLEY KANTARIAN & BRONSTEIN, P.C.
1220 19TH STREET N.W., SUITE 700
WASHINGTON, D.C. 20036
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(Name and Address of Agent For Service)
(202) 822-9611
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(Telephone number, including area code, of agent for service)
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PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
- ------ INFORMATION*
*Documents containing the information required by Part I of
this Registration Statement has been sent or given to
participants in the NewSouth Bancorp, Inc. Management
Recognition Plan and the NewSouth Bancorp, Inc. 1997 Stock
Option Plan (together, the "Plans") in accordance with Rule
428(b)(1). In accordance with Note to Part I of Form S-8, such
documents are not filed with the Securities and Exchange
Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus
supplements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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NewSouth Bancorp, Inc. (the "Company") is subject to the
informational requirements of the Securities Exchange Act of
1934, as amended (the "1934 Act") and, accordingly, files
periodic reports and other information with the Commission.
Reports, proxy statements and other information concerning the
Company filed with the Commission may be inspected and copies
may be obtained (at prescribed rates) at the Commission's Public
Reference Section, Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission also maintains a Web
site that contains reports, proxy and information statements and
other information regarding registrants that file electronically
with the Commission, including the Company. The address for the
Commission's Web site is "http://www.sec.gov".
The following documents are incorporated by reference in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 1998 (Commission File No. 0-22219);
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1998 (Commission File No. 0-22219);
The Company's Current Report on Form 8-K filed with the
Commission on February 8, 1999 (Commission File No. 0-22219);
(c) The description of the Company's securities contained
in Exhibit 99 to the Company's Current Report on Form 8-K filed
with the Commission on March 31, 1999.
ALL DOCUMENTS FILED BY THE COMPANY PURSUANT TO SECTIONS
13(A), 13(C), 14, AND 15(D) OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED, PRIOR TO THE FILING OF A POST-EFFECTIVE
AMENDMENT WHICH INDICATES THAT ALL SECURITIES OFFERED HAVE BEEN
SOLD OR WHICH DEREGISTERS ALL SECURITIES THEN REMAINING UNSOLD,
SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THIS
REGISTRATION STATEMENT AND TO BE A PART HEREOF FROM THE DATE OF
FILING OF SUCH DOCUMENTS.
ITEM 4. DESCRIPTION OF SECURITIES
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Not applicable, as the Common Stock is registered under
Section 12 of the Securities Exchange Act of 1934.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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INDEMNIFICATION OF OFFICER AND DIRECTORS OF THE COMPANY.
General. Directors and officers of the Company may be
entitled to indemnification provisions contained in the Virginia
Stock Corporation Act (the "VSCA") and the Company's Articles
of Incorporation. The general effect of these provisions is
summarized below.
Virginia Stock Corporation Act. In accordance with Sections
13.1-696 through 13.1-704 of the VSCA, a director or officer of
the Company generally shall be indemnified in the defense of a
proceeding if they are successful. A corporation may indemnify
a director, officer, employee or agent under the circumstances
in the preceding sentence and in other circumstances if (i) he
conducted himself in good faith; and (ii) he believed (x) that
his conduct in his official capacity with the corporation was in
its best interests and (y) in all other cases his conduct was at
least not opposed to the corporation's best interests, and (iii)
in the case of any criminal proceeding, he had no reasonable
cause to believe that his conduct was unlawful. A corporation
may not indemnify a director, officer, employee or agent in
connection with a proceeding by or in the right of the
corporation in which the individual was adjudged liable to the
corporation or in connection with a proceeding charging improper
personal benefit to the individual. The above standard of
conduct is determined by a majority vote of a quorum of the
board of directors consisting of directors not at the time
parties to the proceeding, or majority vote of a duly designated
committee of the board of directors, special legal counsel, or
the shareholders as prescribed in Section 13.1-701.
Sections 13.1-698 and 13.1-702 of the VSCA require a
corporation to indemnify a director or officer in the defense of
any proceeding to which the director or officer was a party
against reasonable expenses when the director or officer is
wholly successful in the director's or officer's defense, unless
the articles of incorporation provide otherwise. Upon
application, the court may order indemnification of the director
or officer if the director or officer is adjudged fairly and
reasonably so entitled under Section 13.1-700.1.
In addition, Section 13.1-704 of the VSCA permits a
corporation to provide for indemnification of directors,
officers, employees or agents, in its articles of incorporation
or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance
policies on behalf of these individuals, except an indemnity
against willful misconduct or a knowing violation of criminal
law.
Articles of Incorporation. Article XVI of the Company's
Articles of Incorporation sets forth the circumstances under
which directors, officers, employees and agents may be
indemnified or insured against liability which they may incur in
their capacities as such.
ARTICLE XVI
INDEMNIFICATION
A. The Corporation shall indemnify, to the fullest extent
permissible under the Virginia Stock Corporation Act, any
individual who is or was a director, officer, employee or agent
of the Corporation, and any individual who serves or served at
the Corporation's request as a director, officer, partner,
trustee, employee or agent of another corporation, partnership,
joint venture, trust, other enterprise or employee benefit plan,
in any proceeding in which the individual is made a party as a
result of his service in such capacity.
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B. (1) Reasonable expenses incurred by any person
identified in paragraph A of this Article XVI who is a party to
a proceeding will be paid or reimbursed by the Corporation in
advance of the final disposition of the proceeding upon receipt
by the Corporation of: (i) a written statement by such person
of his good faith belief that the standard of conduct necessary
for indemnification by the Corporation as authorized in this
Article XVI has been met; and (ii) a written undertaking by or
on behalf of such person to repay the amount if it shall
ultimately be determined that the standard of conduct has not
been met.
(2) The undertaking required by subparagraph (ii) of
paragraph (1) of this paragraph B shall be an unlimited general
obligation of such person but need not be secured and may be
accepted without reference to financial ability to make the
repayment.
C. Nonexclusive. The indemnification and advance payment
of expenses provided by paragraphs A and B shall not be
exclusive of any other rights to which a person may be entitled
by law, bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise.
D. Continuation. The indemnification and advancement of
expenses provided by this Article XVI shall be deemed to be a
contract between the Corporation and the persons entitled to
indemnification thereunder, and any repeal or modification of
this Article XVI shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore
existing or any action, suit or proceeding theretofore or
thereafter brought based in whole or in part upon any such state
of facts. The indemnification and advance payment provided by
paragraphs A and B shall continue as to a person who has ceased
to hold a position named in paragraph A and shall inure to his
or her heirs, executors and administrators.
E. Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who holds or who has held any
position as a director or officer of the Corporation against any
liability incurred by him or her in any such position, or
arising out of his status as such, whether or not the
Corporation would have power to indemnify him or her against
such liability under paragraphs A and B.
F. Intention and Savings Clause. It is the intention of
this Article XVI to provide for indemnification to the fullest
extent permitted by the Virginia Stock Corporation Act, and this
Article XVI shall be interpreted accordingly. If this Article
XVI or any portion hereof shall be invalidated on any ground by
any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director, officer, employee, and
agent of the Corporation as to costs, charges, and expenses
(including attorneys' fees), judgments, fines, and amounts paid
in settlement with respect to any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative,
including an action by or in the right of the Corporation, to
the full extent permitted by any applicable portion of this
Article XVI that shall not have been invalidated and to the full
extent permitted by applicable law. If the Virginia Stock
Corporation Act is amended, or other Virginia law is enacted, to
permit further or additional indemnification of the persons
defined in this Article XVI.A, then the indemnification of such
persons shall be to the fullest extent permitted by the Virginia
Stock Corporation Act, as so amended, or such other Virginia
law.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
INDEMNIFICATION OF DIRECTORS AND OFFICERS OF NEWSOUTH BANK
General. Directors and officers of NewSouth Bank, the
Company's main operating subsidiary (the "Bank"), may be
entitled to indemnification provisions contained in the North
Carolina Business Corporation Act (the "NCBCA") and the Bank's
Articles of Incorporation. The general effect of these
provisions is summarized below:
Articles of Incorporation. The Articles of Incorporation of
the Bank provides that, the Bank shall indemnify, to the fullest
extent permissible under North Carolina Law, as from time to
time amended, any individual who is or was a director, officer,
employee or agent of the Bank, and any individual who serves or
served at the Bank's request as a
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director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan, in any proceeding in which
the individual is made a party as a result of his service in
such capacity.
In addition, Article VIII provides that to the fullest
extent permitted by the NCBCA, no person who serves as a
director shall be personally liable to the Bank or any of its
stockholders or otherwise for monetary damages for breach of any
duty as director, provided, however, that this limitation of
liability shall not be effective with respect to: (i) acts or
omissions that the director at the time of such breach knew or
believed were clearly in conflict with the best interests of the
Bank; (ii) any transaction from which the director derived an
improper personal benefit; (iii) such acts or omissions under
which the elimination of personal liability of directors for
monetary damages would be in violation of the provisions of
Chapter 53 of the General Statutes of North Carolina (or any
amendment thereto); (iv) acts or omissions occurring prior to
the date these Articles are filed with the North Carolina
Secretary of State, or (v) the extent otherwise required
or liable by North Carolina law.
North Carolina Business Corporation Act. Sections 55-8-50
through 55-8-58 of the NCBCA contain provisions prescribing the
extent to which directors and officers shall or may be
indemnified. Section 55-8-51 of the NCBCA permits a
corporation, with certain exceptions, to indemnify a present or
former director against liability if (i) the director conducted
himself in good faith, (ii) the director reasonably believed (x)
that the director's conduct in the director's official capacity
with the corporation was in its best interests and (y) in all
other cases the director's conduct was at least not opposed to
the corporation's best interests, and (iii) in the case of any
criminal proceeding, the director had no reasonable cause to
believe the director's conduct was unlawful. A corporation may
not indemnify a director in connection with a proceeding by or
in the right of the corporation in which the director was
adjudged liable to the corporation or in connection with a
proceeding charging improper personal benefit to the director.
The above standard of conduct is determined by the board
of directors, or a committee or special legal counsel or the
shareholders as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the NCBCA require a
corporation to indemnify a director or officer in the defense of
any proceeding to which the director or officer was a party
against reasonable expenses when the director or officer is
wholly successful in the director's or officer's defense, unless
the articles of incorporation provide otherwise. Upon
application, the court may order indemnification of the director
or officer if the director or officer is adjudged fairly and
reasonably so entitled under Section 55-8-54.
In addition, Section 55-8-57 permits a corporation to
provide for indemnification of directors, officers, employees or
agents, in its articles of incorporation or bylaws or by
contract or resolution, against liability in various proceedings
and to purchase and maintain insurance policies on behalf of
these individuals.
The foregoing is only a general summary of certain aspects
of North Carolina law dealing with indemnification of directors
and officers and does not purport to be complete. It is
qualified in its entirety by reference to the relevant statutes,
which contain detailed specific provisions regarding the
circumstances under which and the person for whose benefit
indemnifications shall or may be made.
The Bank has a directors and officers liability policy
providing for insurance against certain liabilities incurred by
directors and officers of the Bank while serving in their
capacities as such.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not Applicable.
ITEM 8. EXHIBITS
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For a list of all exhibits filed or included as part of this
Registration Statement, see "Index to Exhibits" at the end of
this Registration Statement.
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ITEM 9. UNDERTAKINGS
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1. The undersigned registrant hereby undertakes:
(a) 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) 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 (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(b) 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.
(c) 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.
(2) 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 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.
(3) 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 Securities
Exchange Act of 1934; 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.
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(4) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 Washington, State of
North Carolina, on March 29, 1999.
NEWSOUTH BANCORP, INC.
By: /s/ Thomas A. Vann
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Thomas A. Vann
President
(Duly Authorized Representative)
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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Signatures Title Date
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<S> <C> <C>
/s/ Thomas A. Vann President and Director March 29, 1999
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Thomas A. Vann
/s/ William L. Wall Executive Vice President and March 29, 1999
- ------------------------ Chief Financial Officer
William L. Wall (Principal Financial and
Accounting Officer)
* Director March 29, 1999
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Edmund T. Buckman, Jr.
* Director March 29, 1999
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Linley H. Gibbs, Jr.
* Director March 29, 1999
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Frederick N. Holscher
* Director March 29, 1999
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Frederick H. Howdy
* Director March 29, 1999
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Charles E. Parker, Jr.
* Director March 29, 1999
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Marshall T. Singleton
* By: /s/ Thomas A. Vann
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Thomas A. Vann
Attorney-in-fact
/TABLE
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INDEX TO EXHIBITS
Exhibit Description
* 5 Opinion of Housley Kantarian & Bronstein, P.C. as
to the legality of the Common Stock being registered
* 23 Consent of Housley Kantarian & Bronstein, P.C.
(appears in their opinion filed as Exhibit 5)
* 24 Power of Attorney (contained in the signature page
to this registration statement)
* 99.1 NewSouth Bancorp, Inc. Management Recognition Plan,
Trust Agreement under the NewSouth Bancorp, Inc.
Management Recognition Plan, and Notice of Removal
of Trustee
* 99.2 NewSouth Bancorp, Inc. 1997 Stock Option Plan and
associated trust
* 99.3 Form of Stock Option Agreement to be entered into
with Optionees with respect to Incentive Stock
Options granted under the NewSouth Bancorp, Inc.
1997 Stock Option Plan
* 99.4 Form of Stock Option Agreement to be entered into
with Optionees with respect to Non-Incentive Stock
Options granted under the NewSouth Bancorp, Inc.
1997 Stock Option Plan
* 99.5 Notice of MRP Award
* 99.6 Memorandum concerning taxation of MRP Awards, and
associated election form
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* Previously filed
