Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COMMUNITY FIRST BANCORPORATION
(Exact name of registrant as specified in its charter)
South Carolina 58-2322486
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3685 Blue Ridge Boulevard, Walhalla, South Carolina 29691
(Address of principal executive offices and zip code)
COMMUNITY FIRST BANCORPORATION
1989 Incentive Stock Option Plan
(Full title of Plan)
Frederick D. Shepherd, Jr. Copies to:
Community First Bancorporation George S. King, Jr., Esquire
President and Suzanne Hulst Clawson, Esquire
Principal Financial Officer Sinkler & Boyd, P.A.
3685 Blue Ridge Boulevard 1426 Main Street, Suite 1200
Walhalla, South Carolina 29691 Columbia, South Carolina 29201
(Name and address of agent for service)
(803) 779-3080
(864) 638-2105
(Telephone number, including
area code, of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
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Proposed
Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered(1) price per share(2) price(2) registration fee
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<S> <C> <C> <C> <C>
Common Stock,
no par value 191,718 shares $7.35 $1,409,127.30 $415.69
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This registration statement also covers such indeterminable number of
additional shares as may become issuable to prevent dilution in the event of
stock splits, stock dividends or similar transactions pursuant to the terms
of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, based on the
book value of the shares as of August 31, 1998.
Exhibit Index on page 6
<PAGE>
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 employees of the Registrant chosen to participate in the
Community First Bancorporation 1989 Incentive Stock Option Plan as required by
Rule 428(b)(1) promulgated under the Securities Act of 1933.
PART II
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference herein the following
documents:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1997 (File No. 000-29640).
(b) The Registrant's Quarterly Reports on Form 10-QSB for the quarters
ended March 31, 1998 and June 30, 1998.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "1934
Act"), prior to the filing of a post-effective amendment that 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
The Registrant was organized for the purpose of becoming the holding
company for Community First Bank pursuant to a triangular merger in which
Registrant's Common Stock was exchanged for all of the common stock of Community
First Bank. The common stock of Community First Bank was registered under the
1934 Act with the Federal Deposit Insurance Corporation. Pursuant to 12 C.F.R.
Section 240.12g-3, because Registrant was successor to a 1934 Act registrant,
upon effectiveness of the share exchange, its common stock was deemed
automatically registered under the 1934 Act without further filing with the
Commission of a 1934 Act registration statement. Consequently, no description of
the Registrant's securities has previously been filed with the Commission.
Accordingly, a description of the Registrant's common stock is set forth below:
Authorized Capital. The Registrant is authorized to issue
10,000,000 shares of common stock, no par value per share.
Voting and Other Rights. The holders of the Registrant's Common Stock
are entitled to one vote per share on each matter voted on at a stockholders'
meeting. A majority of the shares entitled to vote, represented at a meeting in
person or by proxy, constitutes a quorum, and, in general, most routine matters
will be approved if the votes cast in favor of the matter exceed the votes
against the matter. Directors are elected by a plurality of the votes cast by
the shares entitled to vote in the election at a meeting at which a quorum is
present. Each stockholder entitled to vote in such an election shall be entitled
to vote each share of Registrant Common Stock owned by such stockholder for as
many persons as there are directors to be elected. Pursuant to the Articles of
Incorporation of the Registrant, stockholders do not have cumulative voting
rights.
In general, the affirmative vote of two-thirds of the Registrant's
Common Stock outstanding and entitled to vote is required to approve: (i)
amendments to the Registrant's Articles of Incorporation, (ii) the dissolution
of the Registrant, or (iii) a merger, exchange or consolidation of the
Registrant with, or the sale, exchange or lease of all or substantially all of
the assets of the Registrant to, any person or entity.
The stockholders of the Registrant shall have dissenters' rights to an
appraisal with respect to their shares of Registrant Common Stock as provided by
the South Carolina Business Corporation Act of 1988 (the "Business Corporation
Act") in connection with certain types of merger or share exchange transactions.
Dissenters' rights generally are also available with respect to certain sales of
all or substantially all of the property of the Registrant and certain
amendments to the Registrant's Articles of Incorporation that materially and
adversely affect certain enumerated rights of a dissenter's shares.
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Directors and Classes of Directors. Under the Registrant's Articles of
Incorporation and Bylaws and pursuant to the Business Corporation Act, the
number of directors shall consist of a minimum of nine and a maximum of 25
persons. The number within this range may be determined from time to time by the
Board of Directors. Accordingly, the directors of the Registrant have the
authority to increase or decrease the number of directors, which is currently
fixed at 12, within this maximum. Only the stockholders of the Registrant,
however, have the right to change the range for the size of the Board, by
amendment to the Registrant's Articles of Incorporation.
The Board of Directors of the Registrant is divided into three classes so
that each director serves for a term ending on the date of the third annual
meeting following the annual meeting at which such director was elected. In the
event of any increase in the authorized number of directors, the newly created
directorships resulting from such increase shall be apportioned among the three
classes of directors so as to maintain such classes as nearly equal as possible.
The Articles of Incorporation of the Registrant have established the initial
classification by dividing the directors into three classes, with directors of
the first class to hold office for a term expiring at the annual meeting of
stockholders of the Registrant in 1999, directors of the second class to hold
office for a term expiring at the annual meeting of stockholders of the
Registrant in 2000, and directors of the third class to hold office until the
annual meeting of stockholders of the Registrant in 2001. At each annual meeting
thereafter, successors to the directors whose terms expire shall be elected to
hold office for terms expiring at the third succeeding annual meeting following
their election.
Because of the classification of directors, unless the stockholders act
under the Business Corporation Act to remove directors from office, two annual
meetings generally would be required to elect a majority of the Board of
Directors and three, rather than one, would be required to replace the entire
board.
The Articles of Incorporation provide that a director may be removed
only for cause by the affirmative vote of at least 66 2/3% of the outstanding
voting stock.
Liquidation Rights. In the event of liquidation, the holders of
Registrant's Common Stock would be entitled to receive pro rata any assets
legally available for distribution to stockholders with respect to shares held
by them.
Preemptive and Other Rights. The Registrant's Common Stock does not
have any preemptive rights, redemption privileges, sinking fund privileges or
conversion rights. The shares of Registrant's Common Stock are nonassessable.
Distributions. The Registrant may issue share dividends in Registrant's
Common Stock to the holders of shares of Registrant's Common Stock. In addition,
the holders of shares of Registrant's Common Stock will be entitled to receive
such other distributions as the Board of Directors of the Registrant may
declare, subject to any restrictions contained in the Registrant's Articles of
Incorporation (of which there currently are none), unless after giving effect to
such distribution, (i) Registrant would not be able to pay its debts as they
become due in the usual course of business or (ii) Registrant's total assets
would be less than the sum of Registrant's total liabilities plus the amount
that would be needed, if Registrant were to be dissolved at the time of the
distribution, to satisfy claims of stockholders who have preferential rights
superior to the rights of holders of Registrant's Common Stock.
Although the Registrant is not subject to the restrictions on dividends
applicable to state banks, the ability of the Registrant to make distributions
to holders of Registrant's Common Stock is dependent to a large extent upon the
ability of Community First Bank to pay dividends. The ability of Community First
Bank, as well as of the Registrant, to pay dividends in the future may also be
affected by the various minimum capital requirements.
Indemnification of Officers and Directors. The Registrant's Articles of
Incorporation provide that the Registrant shall advance expenses to and
indemnify its current or former directors, officers, agents or employees to the
full extent and in the manner permitted or required by the Business Corporation
Act. Sections 33-8-500 through 33-8-580 of the Business Corporation Act contain
provisions prescribing the extent to which directors and officers shall or may
be indemnified. Section 33-8-510 permits a corporation, with certain exceptions,
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to indemnify a current or former director against liability if (i) he conducted
himself in good faith, (ii) he reasonably believed (x) that his conduct in his
official capacity with the corporation was in its best interest and (y) his
conduct in other capacities was at least not opposed to the corporation's best
interest, and (iii) in the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful. A corporation may not indemnify a
current or former director in connection with a proceeding by or in the right of
the corporation in which he was adjudged liable to the corporation or in
connection with a proceeding charging improper personal benefit to him. The
above standard of conduct is determined by the Board of Directors or a committee
thereof or special legal counsel or the stockholders as prescribed in Section
33-8-550.
Sections 33-8-520 and 33-8-560 require a corporation to indemnify a
director or officer in the defense of any proceeding to which such person was a
party because of his or her capacity as officer or director against reasonable
expenses when such person is wholly successful in his or her defense, unless the
Articles of Incorporation provide otherwise. Upon application, the court may
order indemnification of the director or officer if such person is adjudged
fairly and reasonably so entitled under Section 33-8-540. Section 33-8-560
allows a corporation to indemnify and advance expenses to an officer, employee
or agent who is not a director to the same extent as a director or as otherwise
set forth in the corporation's Articles of Incorporation or Bylaws or by
resolution of the Board of Directors or by contract.
Statutory Matters
Business Combination Statute. The South Carolina business combinations
statute provides that a 10% or greater stockholder of a resident domestic
corporation cannot engage in a "business combination" (as defined in the
statute) with such corporation for a period of two years following the date on
which the 10% stockholder became such, unless the business combination or the
acquisition of shares is approved by a majority of the disinterested members of
such corporation's board of directors before the 10% stockholder's share
acquisition date. This statute further provides that at no time (even after the
two-year period subsequent to such share acquisition date) may the 10%
stockholder engage in a business combination with the relevant corporation
unless certain approvals of the board of directors or disinterested stockholders
are obtained or unless the consideration given in the combination meets certain
minimum standards set forth in the statute. The law is very broad in its scope
and is designed to inhibit unfriendly acquisitions but it does not apply to
corporations whose articles of incorporation contain a provision electing not to
be covered by the law. The Registrant's articles of incorporation do not contain
such a provision. An amendment of the articles of incorporation to that effect
would, however, permit a business combination with an interested stockholder
even though that status was obtained prior to the amendment.
Control Share Acquisitions. South Carolina law also contains provisions
that, under certain circumstances, would preclude an acquiror of the shares of a
South Carolina corporation who crosses one of three voting thresholds (20%,
331/3% or 50%) from obtaining voting rights with respect to such shares unless a
majority in interest of the disinterested stockholders of the corporation votes
to accord voting power to such shares.
The legislation provides that, if authorized by the articles of
incorporation or bylaws prior to the occurrence of a control share acquisition,
the corporation may redeem the control shares for their fair value if the
acquiring person has not complied with certain procedural requirements
(including the filing of an "acquiring person statement" with the corporation
within 60 days after the control share acquisition) or if the control shares are
not accorded full voting rights by the stockholders. The Registrant is not
authorized by its articles or bylaws to redeem control shares pursuant to such
legislation.
General. Taken together, the foregoing provisions of the Articles of
Incorporation and South Carolina law favor maintenance of the status quo and may
make it more difficult to change current management, and may impede a change of
control of the Registrant even if desired by a majority of its stockholders.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under the Business Corporation Act, a corporation has the power to
indemnify directors and officers who meet the standards of good faith and
reasonable belief that conduct was lawful and in the corporate interest (or not
opposed thereto) set forth in the Business Corporation Act. The Business
Corporation Act also empowers a corporation to provide insurance for directors
and officers against liability arising out of their positions even though the
insurance coverage is broader than the power of the corporation to indemnify.
Under the Business Corporation Act, unless limited by its articles of
incorporation, a corporation must indemnify a director or officer who is wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which he was a party because he is or was a director or officer against
reasonable expenses incurred by him in connection with the proceeding. The
Registrant's Articles of Incorporation do not provide otherwise. The provisions
of the Business Corporation Act which deal with indemnification are codified at
Sections 33-8-500 through -580 of the Code of Laws of South Carolina 1976,
amended.
In addition, the Company maintains directors' and officers' liability
insurance for the benefit of its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4 Community First Bancorporation 1989 Incentive Stock Option Plan
(incorporated by reference to Exhibit 10.1 to Registrant's Form
10-KSB for the year ended December 31, 1997.
5 Opinion of Sinkler & Boyd, P.A.
23.1 Consent of Donald G. Jones and Company, P.A.
23.2 Consent of Sinkler & Boyd, P.A. (included in Exhibit 5).
24 Power of Attorney
Item 9. Undertakings.
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 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 a 20% 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;
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Provided, however, that paragraphs (1)(i) and (1)(ii) of this
undertaking do not apply if the registration statement is on Form S-3, 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 Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the 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.
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 Section 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.
(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
The Registrant
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 City of Walhalla, State of South Carolina on October 21,
1998.
Community First Bancorporation
s/Frederick D. Shepherd, Jr.
By:----------------------------------------------
Frederick D. Shepherd, Jr.
Chief Executive Officer and Principal
Accounting Officer
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 21, 1998.
- --------------------------
Larry S. Bowman, M.D. Director
*s/William M. Brown
- --------------------------
William M. Brown Director
*s/Robert H. Edwards
- --------------------------
Robert H. Edwards Director
*s/Blake L. Griffith
- --------------------------
Blake L. Griffith Director
*s/John R. Hamrick
- --------------------------
John R. Hamrick Director
*s/R. Theo Harris, Sr.
- --------------------------
R. Theo Harris, Sr. Director
*s/James E. McCoy
- --------------------------
James E. McCoy Director
s/Frederick D. Shepherd, Jr.
- --------------------------
Frederick D. Shepherd, Jr. Chief Executive Officer,
Principal Financial Officer
and Director
- --------------------------
Gary V. Thrift Director
- --------------------------
James E. Turner Director
- --------------------------
Charles L. Winchester Director
*By Frederick D. Shepherd, Jr.
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
4 Community First Bancorporation 1989 Incentive Stock Option
Plan (incorporated by reference to Exhibit 10.1 to
Registrant's Form 10-QSB for the year ended December 31, 1997
5 Opinion of Sinkler & Boyd, P.A.
23.1 Consent of Donald G. Jones and Company, P.A.
23.2 Consent of Sinkler & Boyd, P.A.
(included in Exhibit 5)
24 Power of Attorney
9
Sinkler & Boyd, P.A.
Attorneys at Law
The Palmetto Center
1426 Main Street, Suite 1200
Columbia, South Carolina 29201
(803) 779-3080
October 21, 1998
Community First Bancorporation
3685 Blue Ridge Boulevard
Walhalla, South Carolina 29691
Gentlemen:
In connection with the registration under the Securities Act of 1933
(the "Act") of 191,718 shares of the common stock (the "Common Stock") of
Community First Bancorporation, a South Carolina corporation (the "Company"),
for issuance pursuant to the Community First Bancorporation 1989 Incentive Stock
Option Plan, we have examined such corporate records, certificates and other
documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion.
Upon the basis of such examination it is our opinion that the Common
Stock, when issued upon the terms and conditions set forth in the Registration
Statement filed by the Company in connection with the registration of the Common
Stock, and upon receipt of the consideration therefor, will be legally issued,
fully paid and nonassessable.
We consent to be named in the Registration Statement as attorneys who
will pass upon certain legal matters in connection with the offering described
in the Registration Statement, and to the filing of a copy of this opinion as an
exhibit to the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
s/Sinkler & Boyd, P.A.
Sinkler & Boyd, P.A.
10
INDEPENDENT AUDITORS' CONSENT
Board of Directors
Community First Bancorporation
We consent to the incorporation by reference into this Registration
Statement on Form S-8 filed by Community First Bancorporation in connection with
the Community First Bancorporation 1989 Incentive Stock Option Plan of our
Report dated January 9, 1998, included in Community First Bancorporation's
Annual Report on Form 10-KSB for the year ended December 31, 1997.
s/Donald G. Jones and Company, P.A.
Donald G. Jones and Company, P.A
Columbia, South Carolina
October 20, 1998
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Frederick D. Shepherd, Jr., his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
this Registration Statement and any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documentation in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that each of
said attorney-in-fact and agent, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Signature Title Date
Director
- ---------------------------------------
Larry S. Bowman, M.D.
s/William M. Brown Director September 30, 1998
- ---------------------------------------
William M. Brown
s/Robert H. Edwards Director September 30, 1998
- ---------------------------------------
Robert H. Edwards
s/Blake L. Griffith Director September 30, 1998
- ---------------------------------------
Blake L. Griffith
s/John R. Hamrick Director September 30, 1998
- ---------------------------------------
John R. Hamrick
s/R. Theo Harris, Sr. Director September 30, 1998
- ---------------------------------------
R. Theo Harris, Sr.
s/James E. McCoy Director September 30, 1998
- ---------------------------------------
James E. McCoy
s/Frederick D. Shepherd, J. Director, Chief September 30, 1998
- --------------------------------------- Executive Officer
Frederick D. Shepherd, Jr. and Principal
Accounting Officer
Director
- ---------------------------------------
Gary V. Thrift
Director
- ----------------------------------------
James E. Turner
Director
- ---------------------------------------
Charles L. Winchester
