As filed with the Securities and Exchange Commission on August 11, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CATAWBA VALLEY BANCSHARES, INC.
(Exact Name of Registrant as Specified in its Charter)
NORTH CAROLINA 56-2137427
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1039 SECOND STREET, NE
HICKORY, NORTH CAROLINA 28601-3843
(828) 431-2300
(Address, including ZIP Code, and telephone number, including area
code, of registrant's principal executive offices)
Catawba Valley Bancshares, Inc. 1996 Incentive Stock Option Plan
Catawba Valley Bancshares, Inc. 1997 Nonqualified Stock Option Plan
(Full title of the plans)
R. STEVE AARON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CATAWBA VALLEY BANK
1039 SECOND STREET, NE
HICKORY, NORTH CAROLINA 28601
(828) 431-2300
(Name and address of agent for service)
WITH COPIES TO:
---------------
ANTHONY GAETA, JR. , ESQ.
808 SALEM WOODS DRIVE, SUITE 201
RALEIGH, NORTH CAROLINA 27615
(919) 845-2558
CALCULATION OF REGISTRATION FEE (1)
- --------------------------------------------------------------------------------
Title of Proposed Proposed
Securities Maximum Maximum Amount of
to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee (1)
- --------------------------------------------------------------------------------
Common Stock
$1.00 Par Value 210,070 (1) $2,033,900 (1) $565.00
- --------------------------------------------------------------------------------
(1) The shares of Common Stock are being offered to eligible employees and
directors of Registrant and its direct and indirect subsidiaries pursuant to
options granted to them in accordance with the terms of the Catawba Valley
Bancshares, Inc. 1996 Incentive Stock Option Plan and the 1997 Nonqualified
Stock Option Plan for Directors (the "Plans") adopted by Registrant in
connection with the reorganization of Catawba Valley Bank into a holding company
form of organization whereby Catawba Valley Bank became the wholly-owned
subsidiary of the Registrant. Pursuant to Rule 457(h), the Aggregate Offering
Price and the Registration Fee have been calculated on the basis of the maximum
number of shares to be issued under the Plans and an Offering Price equal to the
price at which the shares may be purchased pursuant to the Plans upon the
exercise of the options.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Explanatory Note
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I (Items 1 and 2) of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the Plans as
required by Rule 428(b) under the Securities Act of 1933 ("Securities Act").
Such documents are not being filed with the Commission as part of this
Registration Statement or prospectuses or prospectus supplements pursuant to
Rule 424.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by Registrant with the Commission under the
Securities Act are incorporated herein by reference:
(i) Registrant's Registration Statement on Form S-4 filed under the
Securities Act on March 25, 1999 (Registration No. 333-75021);
In addition, all documents subsequently filed with the Commission by
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") after the date hereof prior to the
filing of a post-effective amendment which indicates that all securities being
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated herein by reference and to be a part hereof
from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Registrant is incorporated under the laws of the State of North Carolina.
North Carolina's Business Corporation Act (the "BCA") contains provisions
prescribing the extent to which directors and officers of a corporation shall or
may be indemnified.
The BCA permits a corporation, with certain exceptions, to indemnify a
current or former officer or director against liability if he acted in good
faith and he reasonably believed (i) in the case of conduct in his official
capacity with the corporation, that his conduct was in its best interests, (ii)
in all other cases, that his conduct was at least not opposed to its bet
interests and (iii) with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A corporation may not
indemnify him 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 any other proceeding charging improper personal benefit to him, whether or
not involving action in his official capacity, in which he as adjudged liable on
the basis that personal benefit was improperly received by him unless and only
to the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, he is fairly and reasonably entitled
to indemnity for such reasonable expenses incurred which the court shall deem
proper.
The BCA requires a corporation to indemnify an officer or director in the
defense of any proceeding to which he was a party against reasonable expenses to
the extent that he is wholly successful on the merits or otherwise in his
defense. Indemnification under the BCA generally shall be made by the
corporation only upon a determination that indemnification of the director or
officer was proper under the circumstances because he met the applicable
standard of conduct. Such determination may be made by (i) the Board of
Directors by a majority vote of a quorum
2
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consisting of directors who are not parties to such proceeding, (ii) if such a
quorum is not obtainable, by majority vote of a committee duly designated by the
Board of Directors consisting solely of two or more directors not at the time
party to such proceeding; (iii) if such quorum is not obtainable, or, even if
obtainable if a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iv) by the stockholders of the
corporation.
The BCA permits a corporation to provide for indemnification of directors
and officers in its Articles of Incorporation or Bylaws or by contract or
otherwise, against liability in various proceedings, and to purchase and
maintain insurance policies on behalf of these individuals. The Articles of
Incorporation of the Registrant provide for the elimination of the personal
liability for monetary damages for certain breaches of fiduciary duty and the
Bylaws of the Registrant provide for the indemnification of directors and
officers to the maximum extent permitted by North Carolina law.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed herewith or incorporated herein by
reference as a part of the Registration Statement.
Exhibit Number Description
4 Specimen of Registrant's Common Stock certificate
(incorporated by reference to Registration Statement on
Form S-4; Registration No. 333-75021).
5 Opinion of Anthony Gaeta, Jr., P.A. as to the legality of
the securities being registered (filed herewith).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Anthony Gaeta, Jr., P.A. (contained in his
opinion filed herewith as Exhibit 5).
24 Power of Attorney (filed herewith).
99 Copy of Registrant's 1996 Incentive Stock Option Plan and
1997 Nonqualified Stock Option Plan for Directors
(incorporated herein by reference to Registration
Statement on Form S-4 filed March 25, 1999, Registration
No. 333-75021).
99.1 Amendment No. 1 to 1996 Incentive Stock Option Plan (filed
herewith).
99.2 Amendment No. 1 to 1997 Nonqualified Stock Option Plan for
Directors (filed herewith).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the
Registration
3
<PAGE>
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.
(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 information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 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.
(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 Section 15(d) of the
Securities and 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.
(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 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.
4
<PAGE>
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 City of Hickory, State of North Carolina, on July 1, 1999.
CATAWBA VALLEY BANCSHARES, INC.
By: /s/ R. Steve Aaron
-------------------------------------
R. Steve Aaron
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE CAPACITY
- --------- --------
/s/ R. Steve Aaron President and Chief Executive Officer
- -------------------------------
R. Steve Aaron
/s/ Marty Lowder* Chief Financial Officer
- -------------------------------
Marty Lowder
/s/ Hal F. Huffman, Jr * Director
- -------------------------------
Hal F. Huffman, Jr.
/s/ Robert P. Huntley* Director
- -------------------------------
Robert P. Huntley
/s/ W. Steve Ikerd* Chairman of its Board of Directors
- -------------------------------
W. Steve Ikerd
/s/ Robert T. King* Director
- -------------------------------
Robert T. King
/s/ Pat M. Moss* Director
- -------------------------------
Pat M. Moss
/s/ Cloyd Hugh Propst, Jr.* Director
- -------------------------------
Cloyd Hugh Propst, Jr.
/s/ Howard L. Pruitt* Director
- -------------------------------
Howard L. Pruitt
/s/ William R. Sigmon, Jr. * Director
- -------------------------------
William R. Sigmon, Jr.
* By: /s/ R. Steve Aaron
- -------------------------------
Attorney-in-fact
5
<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
4 Specimen of Registrant's Common Stock Incorporated by reference
5 Opinion of Anthony Gaeta, Jr., P.A.
as to the legality of the securities
being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Anthony Gaeta, Jr., P.A. Included in Exhibit 5
24 Power of Attorney
99 Copy of Catawba Valley Bancshares, Incorporated by reference
Inc. 1996 Incentive Stock Option Plan
and 1997 Nonqualified Stock Option
Plan for Directors
99.1 Amendment No. 1 to 1996 Incentive
Stock Option Plan.
99.2 Amendment No. 1 to 1997 Nonqualified
Stock Option Plan for Directors.
6
EXHIBIT 5
July 21, 1999
Catawba Valley Bancshares, Inc.
1039 Second Street NE
Hickory, North Carolina 28601-3843
Ladies and Gentlemen:
As counsel for Catawba Valley Bancshares, Inc. (the "Company"), I am furnishing
the following opinion in connection with the proposed issuance by the Company of
up to 210,070 shares of its common stock, $1.00 par value (the "Common Stock")
pursuant to the Catawba Valley Bancshares, Inc. 1996 Incentive Stock Option Plan
and the 1997 Nonqualified Stock Option Plan for Directors (collectively, the
"Plans"). These securities are the subject of a Registration Statement to be
filed by the Company with the Securities and Exchange Commission on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act"), to which this opinion is to be attached as an exhibit.
I have examined the Articles of Incorporation and Bylaws of the Company, the
minutes of meetings of its Board of Directors and such other corporate records
of the Company and other documents and have made such examinations of law as I
have deemed relevant for the purposes of this opinion. Based upon such
examination and such certificate, it is my opinion that the 210,070 of Common
Stock of the Company which are being registered pursuant to the Registration
Statement, may be legally issued in accordance with the Company's Articles of
Incorporation and Bylaws, and when so issued and duly delivered against payment
therefore pursuant to the Plans as described in the Registration Statement, such
shares of Common Stock will be legally issued, fully paid and nonassessable.
The opinion expressed herein does not extend to compliance with state and
federal securities laws relating to the sale of these securities.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement that you are about to file with the Securities and Exchange
Commission. Such consent shall not be deemed to be an admission that this firm
is within the category of persons whose consent is required under Section 7 of
the 1933 Act or the regulations promulgated pursuant to the 1933 Act.
Yours very truly,
ANTHONY GAETA, JR., P.A.
By: Anthony Gaeta, Jr.
7
[PRICEWATERHOUSECOOPERS LETTERHEAD]
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement of
Catawba Valley Bancshares, Inc. on Form S-8 of our report, dated January 22,
1999, on our audits of the financial statements of Catawba Valley Bank as of
December 31, 1998 and 1997, and for each of the three years in the period ended
December 31, 1998.
/s/ PRICEWATERHOUSECOOPERS, LLP
- -------------------------------
PRICEWATERHOUSECOOPERS, LLP
July 19, 1999
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EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of Catawba Valley
Bancshares, Inc., and the several undersigned Officers and Directors thereof
whose signatures appear below hereby makes, constitutes and appoints R. Steve
Aaron and Marty Lowder, or either of them, its and his or her true and lawful
attorneys, with full power of substitution to execute, deliver and file in its
or his or her name and on its or his or her behalf, and in each of the
undersigned Officer's and Director's capacity or capacities as shown below, (a)
Registration Statement on Form S-8 (or other appropriate form) with respect to
the registration under the Securities Act of 1933, as amended, of the shares of
common stock of Catawba Valley Bancshares, Inc., $1.00 par value per share, to
be issued in connection with the issuance of shares upon the exercise of options
pursuant to the Catawba Valley Bancshares, Inc. 1996 Incentive Stock Option Plan
and 1997 Nonqualified Stock Option Plan for Directors, all documents in support
thereof or supplemental thereto and any and all amendments, including any and
all post-effective amendments, to the foregoing (hereinafter called the
"Registration Statement"), and (b) such registration statement, petitions,
applications, consents to service of process or other instruments, any and all
documents in support thereof or supplemental thereto, and any and all amendments
or supplements to the foregoing, as may be necessary or advisable to qualify or
register the securities covered by said Registration Statement; and each of
Catawba Valley Bancshares, Inc. and said Officers and Directors hereby grants to
said attorneys, or any of them, full power and authority to do and perform each
and every act and thing whatsoever as said attorneys may deem necessary or
advisable to carry out fully the intent of this power of attorney to the same
extent and with the same effect as Catawba Valley Bancshares, Inc. might or
could do, and as each of said Officers and Directors might or could do
personally in his or her capacity or capacities as aforesaid, and each of
Catawba Valley Bancshares, Inc. and said Officers and Directors hereby ratifies
and confirms all acts and things which said attorneys might do or cause to be
done by virtue of this power of attorney and its or his or her signatures as the
same may be signed by said attorneys to any or all of the following (and/or any
and all amendments and supplements to any or all thereof); such Registration
Statement filed under the Securities Act of 1933, as amended, and all such
registration statement, petitions, applications, consents to service of process
and other instruments, and all documents in support thereof or supplemental
thereto, filed under such securities laws, regulations and requirements as may
be applicable.
IN WITNESS WHEREOF, Catawba Valley Bancshares, Inc. has caused this
power of attorney to be signed on its behalf, and each of the undersigned
Officers and Directors in the capacity or capacities noted has hereunto set his
or her hand on the date indicated below.
CATAWBA VALLEY BANCSHARES, INC.
(Registrant)
By: /s/ R. Steve Aaron
-------------------
R. Steve Aaron, President and Chief Executive Officer
Dated: July 1, 1999
9
<PAGE>
SIGNATURE CAPACITY
- --------- --------
/s/ R. Steve Aaron President and Chief Executive Officer
- ------------------------------
R. Steve Aaron
/s/ Marty Lowder Chief Financial Officer
- ------------------------------
Marty Lowder
/s/ Hal F. Huffman, Jr Director
- ------------------------------
Hal F. Huffman, Jr.
/s/ Robert P. Huntley Director
- ------------------------------
Robert P. Huntley
/s/ W. Steve Ikerd Chairman of its Board of Directors
- ------------------------------
W. Steve Ikerd
/s/ Robert T. King Director
- ------------------------------
Robert T. King
/s/ Pat M. Moss Director
- ------------------------------
Pat M. Moss
/s/ Cloyd Hugh Propst, Jr. Director
- ------------------------------
Cloyd Hugh Propst, Jr.
/s/ Howard L. Pruitt Director
- ------------------------------
Howard L. Pruitt
/s/ William R. Sigmon, Jr. Director
- ------------------------------
William R. Sigmon, Jr.
10
EXHIBIT 99.1
AMENDMENT NO. 1
to
Catawba Valley Bank
1996 Incentive Stock Option Plan
WHEREAS, the Board of Directors of Catawba Valley Bank adopted and
the shareholders and the North Carolina Commissioner of Banks approved the 1996
Incentive Stock Option Plan (the "Plan"); and
WHEREAS, effective June 30, 1999 Catawba Valley Bank reorganized
into a bank holding company form of organization and is the wholly-owned
subsidiary of Catawba Valley Bancshares, Inc. ("CVB"); and
WHEREAS, on March 24, 1999 the Board of Directors of CVB adopted the
Plan as the Plan of CVB, subject to certain amendments set forth in such
adoption.
NOW, THEREFORE, the following Amendment No. 1 to the Plan is hereby
effected as follows:
The name of the Plan shall be the "Catawba Valley Bancshares, Inc.
1996 Incentive Stock Option Plan."
Paragraphs 7 and 11 of the Plan are hereby amended to provide that
payment for shares subject to an option may be made either in cash or in issued
and outstanding shares of the $1.00 par value common stock of CVB.
Paragraph 10 is hereby amended by eliminating the limitation that no
more than 40% of the shares of common stock available under the Plan may be
allocated to any one individual.
Paragraph 4 of Exhibit A entitled "Incentive Stock Option Agreement"
shall be amended to eliminate the requirement that an optionee complete one full
year of service as a director of CVB following the date of the grant of the
option prior to exercise.
IN WITNESS WHEREOF, this Amendment No. 1 is effective June 30, 1999.
/s/ R. Steve Aaron
-------------------------
R. Steve Aaron, President
Attest:
- ------------------------------
Secretary
EXHIBIT 99.2
AMENDMENT NO. 1
to
Catawba Valley Bank
1997 Nonqualified Stock Option Plan for Directors
WHEREAS, the Board of Directors of Catawba Valley Bank adopted and
the shareholders and the North Carolina Commissioner of Banks approved the 1997
Nonqualified Stock Option Plan for Directors (the "Plan"); and
WHEREAS, effective June 30, 1999 Catawba Valley Bank reorganized
into a bank holding company form of organization and is the wholly-owned
subsidiary of Catawba Valley Bancshares, Inc. ("CVB"); and
WHEREAS, on March 24, 1999 the Board of Directors of CVB adopted the
Plan as the Plan of CVB, subject to certain amendments set forth in such
adoption.
NOW, THEREFORE, the following Amendment No. 1 to the Plan is hereby
effected as follows:
The name of the Plan shall be the "Catawba Valley Bancshares, Inc.
1997 Nonqualified Stock Option Plan for Directors."
Paragraphs 7 and 11 of the Plan are hereby amended to provide that
payment for shares subject to an option may be made either in cash or in issued
and outstanding shares of the $1.00 par value common stock of CVB.
Paragraph 10 is hereby amended by eliminating the limitation that no
more than 40% of the shares of common stock available under the Plan may be
allocated to any one individual.
Paragraph 4 of Exhibit A entitled "Nonqualified Stock Option
Agreement" shall be amended to eliminate the requirement that an optionee
complete one full year of service as a director of CVB following the date of the
grant of the option prior to exercise.
IN WITNESS WHEREOF, this Amendment No. 1 is effective June 30, 1999.
/s/ R. Steve Aaron
---------------------------
R. Steve Aaron, President
Attest:
- ------------------------------
Secretary
12
