<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FIRST CENTURY BANKSHARES, INC.
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(Exact name of registrant as specified in its charter)
West Virginia 55-0628089
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 Federal Street
Bluefield, West Virginia 24701
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(Address of Principal Executive Offices) Zip Code
Registrant's Telephone Number,
including Area Code: (304) 325-8181
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NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
and
OFFICER STOCK OPTION PLAN
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J. Ronald Hypes, Treasurer
500 Federal Street
Bluefield, West Virginia 24701
(304) 324-3215
Calculation of Registration Fee
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<TABLE>
<CAPTION>
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share* offering price* fee*
- ---------- ---------- ---------- --------------- ------------
<S> <C> <C> <C> <C>
Common Stock
$1.25 par value 200,000 $14.28 $2,856,000 $793.97
- --------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of calculating the registration fee. Pursuant
to Rule 457(h)(1) under the Securities and Exchange Act of 1933, the
registration is based on the book value of the common stock of First Century
Bankshares, Inc. as reported as of March 31, 1999, the latest practicable date
before filing of this registration statement, and computed based on the maximum
number of shares (200,000) that may be granted.
<PAGE>
FIRST CENTURY BANKSHARES, INC.
FORM S-8, PART I
500 Federal Street
Bluefield, West Virginia 24701
(304) 325-8181
The documents containing the information required by Part I of the
Registration Statement will be provided to each participant in the Plans as
required by Rule 428 (b)(i). Such documents are not being filed with the
Securities and Exchange Commission (the "Commission") in accordance with
instructions to Form S-8.
<PAGE>
FIRST CENTURY BANKSHARES, INC.
FORM S-8, PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 - INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The proxy statement of First Century Bankshares, Inc. ("First
Century") for the Annual Meeting of Shareholders held April 20, 1999, the Annual
Report of First Century Form 10-K for the year ended December 31, 1998, and all
other reports filed by First Century pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
Annual Report on Form 10-K for the year ended December 31, 1998, are
incorporated herein by reference. All reports and other documents filed by
First Century pursuant to Sections 13, 14, or 15(d) of the Securities Exchange
Act of 1934, as amended, after the date hereof and prior to the termination of
the offering of securities hereby shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents, 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.
ITEM 4 - DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5 - INTERESTS OF NAMED EXPERTS AND COUNSEL
LEGAL OPINION
The validity of the Common Stock which may be issued pursuant to the
Plans has been passed upon by Bowles Rice McDavid Graff & Love, PLLC, 600
Quarrier Street, P.O. Box 1386, Charleston, West Virginia 25325-1386.
ITEM 6 - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 ("the Act") may be permitted to directors, officers, and
controlling persons of First Century, First Century 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 therefor, unenforceable.
Article IX of the Bylaws of First Century contains the following
indemnification provision:
INDEMNIFICATION
Section 1. ACTION BY PERSONS OTHER THAN THE CORPORATION. Under the
circumstances prescribed in Sections 3 and 4 of this Article, the corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party of any, threatened, pending or completed action,
suit or proceeding, or investigation, whether civil, criminal or administrative
(other than 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 now 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 attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in a
manner which he reasonably believed to be in or not opposed to the best interest
of the corporation, and, with respect to criminal action or proceeding, he 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, shall not, of itself, create a
---------------
presumption that the person did not act in a manner which he reasonably believed
<PAGE>
to be in or not opposed to the best interest of the corporation, and with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
Section 2. ACTIONS BY OR IN THE NAME OF THE CORPORATION. Under the
circumstances prescribed in Sections 3 and 4 of this Article, the corporation
shall indemnify and hold harmless any person who was or is a party or is
threatened to be made a party of any, threatened, pending or completed action,
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 attorney's fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation; except that no indemnification shall be made in respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation, 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, such
person is fairly and reasonably entitled to indemnity for such expense which the
court shall deem proper.
Section 3. SUCCESSFUL DEFENSE. 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 Sections 1
and 2 of this Article, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorney's fees) actually and
reasonably incurred by him in connection therewith.
Section 4. AUTHORIZATION OF INDEMNIFICATION. Except as provided in
Section 3 of this Article and except as may be ordered by a court, any
indemnification under Sections 1 and 2 of this Article shall 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 because he has met the applicable standard of conduct set forth in
Sections 1 and 2. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to such action, suite
or proceeding; or
(2) if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Directors so directs, by the firm of
independent legal counsel then employed by the corporation, in a
written opinion.
Section 5. PREPAYMENT OF EXPENSES. Expenses incurred in defending a
civil or criminal action, suite or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific case upon receipt of an
undertaking by or on behalf of the Director, Officer, employee or agent to repay
such amount unless such indemnification shall ultimately be determined to have
been proper by the corporation as authorized in this Section.
Section 6. NON-EXCLUSIVE RIGHT. The indemnification provided by this
Section shall not be deemed exclusive of any other right to which the person
indemnified hereunder shall be entitled and shall inure to the benefit of the
heirs, executors or administrators of such persons.
Section 7. INSURANCE. The corporation may purchase and maintain
insurance 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, against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this section.
Section 8. INFORMATION TO SHAREHOLDERS. If any expense or other
amounts are paid by way of indemnification, otherwise than by court order or by
an insurance carrier pursuant to insurance maintained by
<PAGE>
the corporation, the corporation shall, not later than the next annual meeting
to the shareholders, unless such meeting is held within three months from the
date such payment, and, in any event, within fifteen months from the date of
such payment, send by first class mail to its shareholders of record at the time
entitled to vote for the election of Directors, a statement specifying the
persons paid, the amount paid, and the nature and status at the time of such
payment of the litigation or threatened litigation.
In addition, Section 31-1-9 of the West Virginia Code provides:
(a) A corporation shall have power to 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 proceeding, whether civil, criminal, administrative or
investigative (other than 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), judgment, fines, taxes and penalties and interest thereon, and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action or proceeding if he acted in good faith and in a manner 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 not
reasonable cause to believe his conduct was unlawful. The termination of any
action or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interest of the corporation, and,
with respect to any criminal action or proceeding, that such person did have
reasonable cause to believe that his conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made party to any threatened, pending or
completed action or proceeding by or in the right of the corporation to procure
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 attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue or matter, including, but not
limited to, taxes or any interest or penalties thereon, as to which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless and only to the extent that
the court in which such action or proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
(c) 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 or proceeding referred to in subsection (a) or (b), or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsection (a) or (b) (unless ordered by
a court) shall 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 because he has met the
applicable standard of conduct set forth in subsection (a) or (b). Such
determination shall be made (1) by the board of directors by a majority vote of
a quorum consisting of directors who were not parties to such action or
proceeding, or (2) if such a quorum is no obtainable, or even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the shareholders or members.
(e) Expenses (including attorneys' fees) incurred in defending a civil
or criminal action or proceeding may be paid by the corporation in advance of
the final disposition of such action or proceeding as authorized in the manner
provided in subsection (d) upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this section.
<PAGE>
(f) The indemnification provided by this section shall not be deemed
exclusive of any other rights to which any shareholder or member may be entitled
under any bylaw, agreement, vote of shareholders, members or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent 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 partnership, joint venture,
trust or other enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
See Exhibit Index attached hereto.
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 statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represents
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; provided
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and 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.
<PAGE>
(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 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) 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 presented by Article
3 of Regulation S-X are 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.
(d) 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 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 its is against public
policy as expressed in the Act 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 City of Bluefield, State of West Virginia, on this 23rd day
of June, 1999.
GBB.GBB.0053528
<PAGE>
FIRST CENTURY BANKSHARES, INC.
(Registrant)
/s/ B. L. Jackson
--------------------------------------------------------
By: B. L. Jackson
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
/s/ B. L. Jackson
----------------------------------------
B. L. Jackson, Chairman of the Board
/s/ Richard W. Wilkinson
----------------------------------------
Richard W. Wilkinson
/s/ Byron K. Satterfield
----------------------------------------
Byron K. Satterfield
/s/ Frank W. Wilkinson
----------------------------------------
Frank W. Wilkinson
/s/ Eustace Frederick
----------------------------------------
Eustace Frederick
/s/ Dr. Robert M. Jones, Jr.
----------------------------------------
Dr. Robert M. Jones, Jr.
/s/ C. E. Richner
----------------------------------------
C. E. Richner
/s/ W. Paul Cole, Jr.
----------------------------------------
W. Paul Cole, Jr.
/s/ Harold Lee Miller
----------------------------------------
Harold Lee Miller
/s/ Charles A. Peters
----------------------------------------
Charles A. Peters
<PAGE>
/s/ Scott H. Shott
----------------------------------------
Scott H. Shott
/s/ John H. Shott
----------------------------------------
John H. Shott
/s/ Walter L. Sowers
----------------------------------------
Walter L. Sowers
/s/ Dr. J. Brookins Taylor
----------------------------------------
Dr. J. Brookins Taylor
GBB.GBB.0053528
<PAGE>
FIRST CENTURY BANKSHARES, INC.
FORM S-8
EXHIBITS INDEX
Item 601
Paragraph (b)
Reference
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No. 4 First Century Bankshares, Inc., 1998
Non-Employee Director Stock Option Plan
First Century Bankshares, Inc., 1998
Officer Stock Option Plan
No. 5 Opinion of Bowles Rice McDavid Graff
No. 23.1 & Love, PLLC, regarding the validity of the securities
being offered, and Consent of Bowles Rice McDavid
Graff & Love, PLLC (contained as part of Exhibit 5)
No. 23.2 Consent of PriceWaterhouseCoopers LLP
GBB.GBB.0053528
<PAGE>
Exhibit 4
POCAHONTAS BANKSHARES CORPORATION
1998 DIRECTOR STOCK OPTION PLAN
Witnesseth this 1998 DIRECTOR STOCK OPTION PLAN dated as of the 21st day of
April, 1998, by POCAHONTAS BANKSHARES CORPORATION ("Corporation"), a West
Virginia corporation:
1. PURPOSE OF PLAN. This 1998 Director Stock Option Plan (Plan) is
established to provide selected non-employee Directors of the Corporation
(Participating Directors) with the opportunity to be granted Non Qualified
Stock Options under the Plan while maintaining the Participating Director's
status as a "disinterested person" within the meaning of Rule 16b-
3(c)(ii)(i) promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended. The Corporation has adopted
this Plan to attract and retain qualified Directors and motivate Directors
to work on behalf of the Corporation to increase shareholder value.
All Non Qualified Stock Options granted to Participating Directors shall be
subject to the terms and conditions set forth in this Plan.
2. REFERENCES, CONSTRUCTION, AND DEFINITIONS. Unless otherwise indicated, all
references made in this Plan shall be to articles, sections and subsections
of this Plan. This Plan shall be construed in accordance with the laws of
the state of West Virginia. The headings and subheadings in this Plan have
been inserted for convenience of reference only and are to be ignored in
construction of the provisions of this Plan. In the construction of this
Plan, the masculine shall include the feminine and the singular the plural,
wherever appropriate. The following terms (in alphabetical order) shall
have the meanings set forth opposite such terms for purposes of this Plan:
(a) "Board" means the Board of Directors of the Corporation.
(b) "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
on which the Corporation's Common Stock is available for purchase or
sale.
(c) "Change of Control" means the accumulation by any individual, firm,
corporation, or other entity (other than current shareholders of the
Corporation as of the date this Plan is adopted; the Corporation or any
subsidiary; any profit-sharing, employee stock ownership, or other
employee benefit plans of the Corporation; or any trustee or fiduciary
with respect to any such plan when acting in such capacity), separately
or in combination with any affiliates or associates, of an increase in
its ownership that results in an ownership interest of more than twenty-
five percent (25%) of the outstanding shares of the Common Stock. The
Change of Control shall not include any such accumulation which a
majority of the Board, under appropriate meeting requirements, declares,
for reasons in its sole discretion, not to be a Change of Control for
purposes of this Plan. The date of a Change of Control shall be deemed to
be the actual date of accumulation for, if such date is not necessarily
determinable, the date on which the majority of the Board members meeting
as described above, shall determine was the date as of which the
Corporation had reason to know of the accumulation.
(d) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(e) "Committee" means the Executive Committee of the Board as constituted
from time to time in accordance with Section 4(a); provided, however,
that if the Committee shall not be in existence, the term "Committee"
shall mean the Board.
<PAGE>
(f) "Common Stock" means the common stock ($1.25 par value) of the
Corporation.
(g) "Corporation" means Pocahontas Bankshares Corporation, a West Virginia
banking corporation.
(h) "Date of Grant" means the date on which an option is granted under the
Plan.
(i) "Director" means a member of the Board or a member of the board of
directors of a subsidiary bank of the Corporation.
(j) "Effective Date" means the date on which the Plan is approved by the
shareholders of the Corporation.
(k) "Fair Market Value" means the value of Common Stock (i) if listed on an
established stock exchange, based on its price on such exchange at the
close of business on the date in question; (ii) if traded on a
reasonably active basis but not listed on an established stock exchange,
based on its price as reflected on the NASDAQ Inter-dealer Quotation
System of the National Association of Securities Dealers, Inc. at the
close of business on the date in question; or (iii) if the Common Stock
is not traded on any United States securities exchange but is traded on
any formal over-the-counter quotation system in general use in the
United States, the value per share shall be the mean of the closing
prices reported on the last five (5) Business Days prior to the date of
grant on which the Common Stock traded.
(l) "Non Qualified Stock Option" means an option to purchase a share or
shares of Common Stock which is not of the type described in Section
422(b) or 423(b) of the Code.
(m) "Non Qualified Stock Option Agreement" means, with respect to each option
granted to a Participating Director, the written agreement to be entered
into by the Corporation and the Participating Director, as provided in
Section 6 hereof.
(n) "Participating Director" means a non-employee Director who has been
granted options under the Plan
(o) "Plan" means this 1998 Director Stock Option Plan.
(p) "Reorganization" means any statutory merger, statutory consolidation,
sale of all or substantially all of the assets of the Corporation or its
subsidiaries, or sale, pursuant to an agreement with the Corporation, of
securities of the Corporation pursuant to which the Corporation is or
becomes a wholly-owned subsidiary of another entity after the effective
date of the transaction.
(q) "Reorganization Agreement" means a written plan or agreement regarding
the terms and implementation of a Reorganization.
(r) "Vest" or "Vesting" means the date, event, or act prior to which an
option, in whole or in part, is not exercisable, and as a consequence of
which the option, in whole or in part, becomes exercisable for the first
time.
3. STOCK SUBJECT TO PLAN. Subject to the provisions of Section 6, there shall
be reserved for issuance or transfer upon the exercise of options to be
granted from time to time under the Plan an aggregate of thirty thousand
(30,000) shares of Common Stock, which shares may be in whole or in part,
as the Board shall from time to time determine, authorized and unissued
shares of Common Stock, or issued shares of Common Stock which shall have
been reacquired by the Corporation. If any option granted under the Plan
shall expire, terminate, or be canceled for any reason without having been
exercised in full, the unpurchased shares subject thereto shall again be
available for purposes of the Plan.
<PAGE>
4. ADMINISTRATION
(a) The Plan shall be administered by a Committee, comprised of members who
satisfy the criteria set forth in Section 4(b).
(b) The Board shall authorize the Executive Committee to administer the
Plan.
In the event the Board elects to administer the Plan, the Board shall
have the power and authority otherwise delegated to the Committee in
this Plan document and all acts to be performed by the Committee under
this Plan shall be performed by the Board.
(c) The Committee shall have the authority in its discretion, but subject to
the express provisions of the Plan:
(1) to determine the Participating Directors to whom options may be granted;
(2) to determine the time or times when options may be granted;
(3) to determine the purchase price of the Common Stock covered by each
option;
(4) to determine the number of shares to be subject to each option;
(5) to determine when an option may be exercised and whether in whole or in
installments as the result of a Vesting schedule triggered by the passage
of time or the attainment of performance goals set by the Committee and
approved by the Board;
(6) to prescribe, amend, or rescind rules and regulations relating to the
Plan;
(7) to determine any other terms and provisions and any related amendments of
the individual Non Qualified Stock Option Agreements, which need not be
identical for each Participating Director, including such terms and
provisions and amendments as shall be required in the judgment of the
Committee to conform to any change in any law or regulation applicable
thereto, and with particular regard to any changes in or effect of the
Code and the regulations thereunder; and
(8) to make all other determinations deemed necessary or advisable for the
administration of the Plan.
5. PARTICIPATION.
(a) Eligibility for Participation. Only non-employee Directors may
participate in this Plan. The Committee's determination of an
individual's eligibility for participation shall be final and binding.
(b) Commencement of Participation. A Participating Director shall commence
participation in the Plan on the date subsequent to the date elected or
appointed as a non-employee Director (or, for current non-employee
Directors on the date subsequent to the effective date of this Plan) when
he shall be granted options under this Plan. A Director who is an
employee at election or appointment and who thereafter ceases to be an
employee shall commence participation in this Plan on the date he shall
be granted options under this Plan.
(c) Termination of Participation. A Participating Director's participation in
this Plan shall terminate on the earlier of (i) the date the
Participating Director's term as a Director expires or is otherwise
terminated for any reason, or (ii) on the date the Participating Director
becomes an employee.
<PAGE>
6. OPTION GRANTS AND LIMITS
(a) Nothing contained in the Plan or in any resolution adopted or to be
adopted by the Board shall constitute the granting of any option
hereunder. The granting of an option pursuant to the Plan shall take
place only when a written Non Qualified Stock Option Agreement shall
have been duly executed and delivered by or on behalf of the Corporation
and the Participating Director (or his duly authorized attorney-in-fact)
in whom such option is to be granted.
(b) During the Participating Director's lifetime, any option granted under
this Plan shall be exercisable only by the Participating Director or any
guardian or legal representative of the Participating Director, and the
option shall not be transferable except, in case of the death of the
Participating Director, by will or the laws of descent and distribution,
nor shall the option be subject to attachment, execution, or other
similar process. In the event of (i) any attempt by the Participating
Director to alienate, assign, pledge, hypothecate, or otherwise dispose
of the option, except as provided in this Plan, or (ii) the levy of any
attachment, execution, or similar process upon the rights or interests
conferred by the option, the Corporation may terminate the option by
notice to the Participating Director and upon such notice the option
shall become null and void.
(c) Each Non Qualified Stock Option Agreement shall include a Vesting
schedule describing the date, event, or act upon which an option shall
Vest, in whole or in part, with respect to all or a specified portion of
the shares covered by such option. This condition shall not impose upon
the Corporation any obligation to retain the Participating Director as a
member of the Board or subsidiary boards for any period.
(d) Options shall be limited to Non Qualified Stock Options.
7. OPTION PRICES. The option price to be paid by the Participating Director
to the Corporation for each share purchased upon the exercise of the option
shall be not less than the Fair Market Value of the share on the date the
option is granted. In no event may an option be granted under the Plan if
the option price per share is less than the par value of a share.
8. EXERCISE OF OPTIONS.
(a) A Participating Director may exercise any option granted under this Plan
with respect to all or any part of the number of shares then exercisable
under the terms of his written Non Qualified Stock Option Agreement by
giving the Committee written notice of intent to exercise. The notice of
exercise shall specify the number of shares to be purchased under the
option and the date of exercise.
(b) Each option granted under the Plan shall be exercisable only during a
term established by the Committee as set forth in the applicable Non
Qualified Stock Option Agreement. In no event shall the term of the
option extend beyond ten (10) years from the date of grant of the option.
(c) Full payment of the option price for the shares purchased shall be made
by the Participating Director on or before the exercise date specified in
the notice of exercise. Payment of the purchase price of any shares with
respect to which the option is being exercised shall be (i) cash, (ii)
certified check to the order of the Corporation, or (iii) shares of
Common Stock of the Corporation valued at the Fair Market Value on such
Business Day as the option or portion thereof is exercised.
(d) The Corporation shall not be required to deliver certificates for such
shares until full payment of the option price has been made. On or as
soon as is practicable after the exercise date specified in the
Participating Director's notice and upon full payment of the option
price, the Corporation shall cause to be delivered to the Participating
Director a
<PAGE>
certificate or certificates for the shares then being purchased (out of
previously unissued Common Stock or reacquired Common Stock, as the
Corporation may elect). The exercise of the option and the resulting
obligation of the Corporation to deliver Common Stock shall, however, be
subject to the condition that the listing, registration, or qualification
of the option or the shares upon any securities exchange or under any
state or federal law, or the consent, or approval of any governmental
regulatory body shall have been effected or obtained free of any
conditions not acceptable to the Committee.
(e) If the Participating Director fails to pay for any of the shares
specified in such notice or fails to accept delivery of the shares, his
right to purchase such shares may be terminated by the Corporation. The
date specified in the Participating Director's notice as the date of
exercise shall be deemed the date of exercise of the option, provided
that payment in full for the shares to be purchased upon such exercise
shall have been received by such date.
(f) The holder of an option shall not have any of the rights of a stockholder
with respect to the shares subject to the option until such shares shall
be issued or transferred to him upon the exercise of his option.
(g) Notwithstanding the foregoing, any shares that may be purchased as of the
Effective Date, pursuant to the terms of any option granted prior to the
Effective Date, shall continue thereafter to be purchasable pursuant to
the exercise of such option.
9. TERMINATION, DISABILITY, OR DEATH OF OPTION HOLDER. The ability to exercise
options under this Plan shall be conditioned as follows:
(a) Exercise During and After Board Membership. Unless otherwise provided in
the terms of an option, an option may be exercised by the Participating
Director while he is a member of the Board and has maintained since the
date of the grant of the option continuous status as a Director. An
option granted pursuant to this Plan may not be exercised more than three
(3) months following the termination of the Participating Director's
membership on the Board of the Corporation or its subsidiaries for any
reason other than (i) permanent disability described in subsection (b)
below, or (ii) death as described in subsection (c) below.
(b) Exercise Upon Permanent Disability. Unless otherwise provided in the
terms of an option, if a Participating Director's continuous Board
membership shall terminate by reason of a permanent disability (as
determined by the Participating Director's establishing to the Committee
his disability as defined in Code Section 22(e)(3) of the Code, as
amended from time to time), the Participating Director shall become one
hundred percent (100%) Vested in any Option he has been granted under the
Plan as of that date, and he may exercise the otherwise exercisable
Option; provided, however, that in all events the Option shall terminate
if not exercised within one (1) year of the termination from the Board
due to permanent disability.
(c) Exercise Upon Death. Unless otherwise provided in the terms of an option,
if a Participating Director's continuous Board membership shall terminate
by reason of his death, any Options he has been granted under the Plan
shall become one hundred percent (100%) Vested, and may be exercised
during the period the option would have been exercisable if the deceased
Participating Director had not died and had remained a Board member, by
the person or persons (including his estate) to whom his rights under
such option shall have passed by will or by laws of descent and
distribution.
10. ADJUSTMENTS.
(a) In the event that the outstanding shares of Common Stock are hereafter
increased or decreased or changed into or exchanged for a different
number or kind of shares or other securities of the Corporation or of
another corporation, by reason of a recapitalization,
<PAGE>
reclassification, stock split-up, combination of shares or dividend, or
other distribution payable in capital stock, appropriate adjustment
shall be made by the Committee in the number and kind of shares for
which options may be granted under the Plan. In addition, the Committee
shall make appropriate adjustment in the number and kind of shares as to
which outstanding options, or portions thereof then unexercised, shall
be exercisable, to the end that the proportionate interest of the holder
of the option shall, to the extent practicable, be maintained as before
the occurrence of such event. Such adjustment in outstanding options
shall be made without change in the total price applicable to the
unexercised portion of the option but with a corresponding adjustment in
the option price per share.
(b) In the event of the dissolution or liquidation of the Corporation, any
option under the Plan shall terminate as of a date to be fixed by the
Committee, provided that not less than thirty (30) days' written notice
of the date so fixed shall be given to each Participating Director, and
each such Participating Director shall have the right during such period
to exercise any of his options as to all or any part of the shares
covered thereby including shares as to which such options would not
otherwise be exercisable by reason of an insufficient lapse of time.
(c) In the event of a Reorganization in which the Corporation is not the
surviving or acquiring corporation, or in which the Corporation is or
becomes a wholly-owned subsidiary of another corporation after the
effective date of the Reorganization, then
(1) if there is no Reorganization Agreement, or if the Reorganization
Agreement does not specifically provide for the change, conversion,
or exchange of shares under outstanding and unexercised stock options
for securities of another corporation, then the Committee shall take
such action, and the options shall terminate, as provided in
subparagraph (b) of this Section 10 or
(2) if there is a Reorganization Agreement and if the Reorganization
Agreement specifically provides for the change, conversion, or
exchange of shares under outstanding and unexercised stock options
for securities of another corporation, then the Committee shall
adjust the shares under the Plan, if the Reorganization Agreement
makes specified provision for such adjustment, in a manner not
inconsistent with the provisions of the Reorganization Agreement for
the adjustment, change, conversion, or exchange of such stock and
such options.
(d) Adjustments and determinations under this Section 10 shall be made by
the Committee, whose decisions as to what adjustments or determinations
shall be made, and the extent thereof, shall be final, binding, and
conclusive.
11. CHANGE OF CONTROL. Notwithstanding any other Plan provisions or grant
term, if any Participating Director is involuntarily removed from Board
membership with the Corporation within twelve (12) months after a Change
of Control, all options granted hereunder shall become exercisable
regardless of the number of years that have passed since the Date of
Grant.
12. AMENDMENT AND TERMINATION. Unless the Plan shall theretofore have been
terminated as hereinafter provided, it shall terminate on, and no option
shall be granted thereunder after the tenth (10th) anniversary of the
Effective Date. The Board may terminate the Plan or make such
modifications or amendments thereof as it shall deem advisable, or to
conform to any change in any law or regulation applicable thereto,
including (a) increasing the maximum number of shares to which options may
be granted under the Plan, subject to shareholder approval, (b) increasing
the periods during which options may be granted or options may be
exercised, or (c) providing for the administration of the Plan in a manner
which may avoid, without the consent of the Participating Director to whom
any option shall theretofore have been granted, adversely affecting the
rights of such Participating Director under such grant.
<PAGE>
13. RESTRICTIONS ON ISSUING SHARES. The transfer of a share of Common Stock
upon the exercise of each option shall be subject to the condition that if
at any time the Corporation shall determine in its discretion that the
satisfaction of withholding tax or other withholding liabilities, or that
the listing, registration or qualification of any shares otherwise
deliverable upon any securities exchange or under any state or federal law,
or that the consent or approval of any regulatory body, is necessary or
desirable as a condition of, or in connection with, such transfer of shares
pursuant thereto, then in any such event, such transfer shall not be
effective unless such withholding, listing, registration, qualification,
consent, or approval shall have been effected or obtained under conditions
acceptable to the Corporation.
14. USE OF PROCEEDS. The proceeds received from the sale of Common Stock
pursuant to the exercise of options granted under the Plan shall be added
to the Corporation's general funds and used for general corporate purposes.
15. INDEMNIFICATION OF COMMITTEE. In addition to such other rights of
indemnification as they may have as members of the Board or as members of
the Committee, the members of the Committee shall be indemnified by the
Corporation against all costs and expenses reasonably incurred by them in
connection with any action, suit, or proceeding to which they or any of
them may be party by reason of any action taken or failure to act under or
in connection with the Plan, or any option and against all amounts paid by
them in settlement thereof (provided such settlement is approved by legal
counsel selected by the Corporation) or paid by them in satisfaction of a
judgment in any such action, suit, or proceeding, except a judgment based
upon a finding of bad faith. Upon the institution of any such action,
suit, or proceeding, a Committee member shall notify the Corporation in
writing, giving an opportunity, at its own expense, to handle and defend
the same before such Committee member undertakes to handle it on his own
behalf.
16. EFFECTIVENESS OF THE PLAN. The Plan shall become effective as of the
Effective Date. Options may be granted to Participating Directors prior to
such date, but the ability to exercise all such options from such grant
shall be conditioned upon such approval and advice.
17. MISCELLANEOUS.
(a) Board Membership Not Affected. Neither the granting of an option nor its
exercise shall be construed as granting to the Participating Director
any right with respect to continuance of his membership on the Board of
the Corporation or its subsidiaries.
(b) Notice. Any notice to the Corporation provided for in this instrument
shall be addressed to it in care of its Treasurer at its principal
office in West Virginia, and any notice to the Participating Director
shall be addressed to the Participating Director at the current address
shown on the payroll records of the Corporation. Any notice shall be
deemed to be duly given if and when properly addressed and posted by
registered or certified mail, postage prepaid.
CORPORATION:
_____________________________
By: _______________________________
Title: _______________________________ (CORPORATE SEAL)
Attest: _______________________________
Title: _______________________________
<PAGE>
Exhibit 4
POCAHONTAS BANKSHARES CORPORATION
1998 OFFICER STOCK OPTION PLAN
Witnesseth this 1998 OFFICER STOCK OPTION PLAN dated as of the ___ day of
___________, 1998, by POCAHONTAS BANKSHARES CORPORATION ("Corporation"), a West
Virginia corporation:
1. PURPOSE OF PLAN. The purpose of this 1998 Officer Stock Option Plan (Plan)
is to further the success of the Corporation and its subsidiaries by making
stock of the Corporation available for purchase by officers of the
Corporation or its subsidiaries through stock option grants. The Plan
provides an additional incentive to such officers to continue in the
Corporation's service and give them a greater interest as stockholders in
the success of the Corporation.
2. REFERENCES, CONSTRUCTION, AND DEFINITIONS. Unless otherwise indicated, all
references made in this Plan shall be to articles, sections, and
subsections of this Plan. This Plan shall be construed in accordance with
the laws of the state of West Virginia. The headings and subheadings in
this Plan have been inserted for convenience of reference only and are to
be ignored in construction of the provisions of this Plan. In the
construction of this Plan, the masculine shall include the feminine and the
singular the plural, wherever appropriate. The following terms (in
alphabetical order) shall have the meanings set forth opposite such terms
for purposes of this Plan:
(a) "Board" means the Board of Directors of the Corporation.
(b) "Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday on which the Corporation's Common Stock is available for purchase
or sale.
(c) "Change of Control" means the accumulation by any individual, firm,
corporation, or other entity (other than current shareholders of the
Corporation as of the date this Plan is adopted; the Corporation or any
subsidiary; any profit-sharing, employee stock ownership, or other
employee benefit plans of the Corporation; or any trustee or fiduciary
with respect to any such plan when acting in such capacity), separately
or in combination with any affiliates or associates, of an increase in
its ownership that results in an ownership interest of more than twenty-
five percent (25%) of the outstanding shares of the Common Stock. The
Change of Control shall not include any such accumulation which a
majority of the Board, under appropriate meeting requirements, declares,
for reasons in its sole discretion, not to be a Change of Control for
purposes of this Plan. The date of a Change of Control shall be deemed to
be the actual date of accumulation or, if such date is not necessarily
determinable, the date on which the majority of the Board members meeting
as described above, shall determine was the date on which the Corporation
had reason to know of the accumulation.
(d) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(e) "Committee" means the Executive Committee of the Board as constituted
from time to time in accordance with Section 4(a); provided, however,
that if the Committee shall not be in existence, the term "Committee"
shall mean the Board.
(f) "Common Stock" means the common stock ($1.25 par value) of the
Corporation.
(g) "Corporation" means Pocahontas Bankshares Corporation, a West
Virginia banking corporation.
(h) "Date of Grant" means the date on which an option is granted under the
Plan.
<PAGE>
(i) "Effective Date" means the date on which the Plan is approved by the
shareholders of the Corporation.
(j) "Fair Market Value" means the value of Common Stock (i) if listed on an
established stock exchange, based on its price on such exchange at the
close of business on the date in question; (ii) if traded on a reasonably
active basis but not listed on an established stock exchange, based on
its price as reflected on the NASDAQ Inter-dealer Quotation System of the
National Association of Securities Dealers, Inc. at the close of business
on the date in question; or (iii) if the Common Stock is not traded on
any United States securities exchange but is traded on any formal over-
the-counter quotation system in general use in the United States, the
value per share shall be the mean of the closing prices reported on the
last five (5) Business Days prior to the date of grant on which the
Common Stock traded.
(k) "Non Qualified Stock Option" means an Option which is not of the type
described in Section 422(b) or 423(b) of the Code.
(l) "Option" means an option to purchase a share or shares of the
Corporation's $1.25 par value Common Stock.
(m) "Option Agreement" means the written agreement to be entered into by the
Corporation and the Participant, as provided in Section 6 hereof.
(n) "Participant" means any officer of the Corporation or its subsidiaries
designated by the Committee and approved by the Board to receive a stock
option grant pursuant to this Plan.
(o) "Plan" means this 1998 Officer Stock Option Plan.
(p) "Reorganization" means any statutory merger, statutory consolidation,
sale of all or substantially all of the assets of the Corporation or its
subsidiaries, or sale, pursuant to an agreement with the Corporation, of
securities of the Corporation pursuant to which the Corporation is or
becomes a wholly-owned subsidiary of another entity after the effective
date of the transaction.
(q) "Reorganization Agreement" means a written plan or agreement regarding
the terms and implementation of a Reorganization.
(r) "Term" means the period during which a particular Option may be exercised
in accordance with Section 8(b) hereof.
(s) "Vest" or "Vesting" means the date, event, or act prior to which an
Option, in whole or in part, is not exercisable, and as a consequence of
which the Option, in whole or in part, becomes exercisable for the first
time.
3. STOCK SUBJECT TO PLAN. Subject to the provisions of Sections 6, 7, and 8,
there shall be reserved for issuance or transfer upon the exercise of
Options to be granted from time to time under the Plan an aggregate of one
hundred seventy thousand (170,000) shares of Common Stock, which shares may
be in whole or in part, as the Board shall from time to time determine,
authorized and unissued shares of Common Stock, or issued shares of Common
Stock which shall have been reacquired by the Corporation. If any Option
granted under the Plan shall expire, terminate, or be canceled for any
reason without having been exercised in full, the unpurchased shares
subject thereto shall again be available for the purposes of the Plan.
<PAGE>
4. ADMINISTRATION.
(a) The Plan shall be administered by a Committee, comprised of members who
satisfy the criteria set forth in Section 4(b).
(b) The Board shall authorize the Executive Committee to administer the Plan.
In the event the Board elects to administer the Plan, the Board shall
have the power and authority otherwise delegated to the Committee in this
Plan document and all acts to be performed by the Committee under this
Plan shall be performed by the Board.
(c) The Committee shall have authority in its discretion, but subject to the
express provisions of the Plan:
(1) to determine Participants to whom Options may be granted;
(2) to determine the time or times when Options may be granted;
(3) to determine the purchase price of the Common Stock covered by each
Option grant;
(4) to determine the number of shares to be subject to each Option;
(5) to determine when an Option may be exercised and whether in whole or in
installments as the result of a Vesting schedule triggered by the passage
of time or the attainment of performance goals set by the Committee and
approved by the Board;
(6) to prescribe, amend, or rescind rules and regulations relating to the
Plan;
(7) to determine any other terms and provisions and any related amendments to
the individual Option Agreements, which need not be identical for each
Participant, including such terms and provisions and amendments as shall
be required in the judgment of the Committee to conform to any change in
any law or regulation applicable thereto, and with particular regard to
any changes in or effect of the Code and the regulations thereunder; and
(8) to make all other determinations deemed necessary or advisable for the
administration of the Plan.
5. PARTICIPATION. Options may be granted to officers employed by the
Corporation or its subsidiaries. In determining the officers to whom
Options may be granted and the number of shares to be covered by each
grant, the Committee may take into account the nature of the services
rendered by the respective officers, their present and potential
contributions to the Corporation's success, and such other factors as the
Committee in its discretion shall deem relevant. Options may be granted to
officers who currently hold corporate stock or who hold or have held
Options under this Plan.
6. OPTION GRANTS AND LIMITS.
(a) Nothing contained in the Plan or in any resolution adopted or to be
adopted by the Board shall constitute the granting of any Option
hereunder. The granting of an Option pursuant to the Plan shall take
place only when a written Option Agreement shall have been duly executed
and delivered by or on behalf of the Corporation and the officer (or his
duly authorized attorney-in-fact) in whom such Option is to be granted.
(b) During the Participant's lifetime, any Option granted under this Plan
shall be exercisable only by the Participant or any guardian or legal
representative of the Participant, and the Option shall not be
transferable except, in case of the death of the Participant, by will or
the laws of descent and distribution, nor shall the Option be subject to
attachment, execution,
<PAGE>
or other similar process. In the event of (i) any attempt by the
Participant to alienate, assign, pledge, hypothecate, or otherwise
dispose of the Option, except as provided in this Plan, or (ii) the levy
of any attachment, execution, or similar process upon the rights or
interests conferred by the Option, the Corporation may terminate the
Option by notice to the Participant and upon such notice the Option
shall become null and void.
(c) Each Option Agreement shall include a Vesting schedule describing the
date, event, or act upon which an Option shall Vest, in whole or in
part, with respect to all or a specified portion of the shares covered
by such Option. This condition shall not impose upon the Corporation any
obligation to retain the Participant in its employ for any period.
(d) Options shall be limited to Non Qualified Stock Options.
7. OPTION PRICES. The Option price to be paid by the Participant to the
Corporation for each share purchased upon the exercise of the Option shall
be not less than the Fair Market Value of the share on the date the Option
is granted. In no event may an Option be granted under the Plan if the
Option price per share is less than the par value of a share.
8. EXERCISE OF OPTIONS.
(a) A Participant may exercise any Option granted under this Plan with
respect to all or any part of the number of shares then exercisable
under the terms of his written Option Agreement by giving the Committee
written notice of intent to exercise. The notice of exercise shall
specify the number of shares to be purchased under the Option and the
date of exercise.
(b) Each Option granted under the Plan shall be exercisable only during a
Term established by the Committee as set forth in the applicable Option
Agreement. In no event shall the Term of the Option extend beyond ten
(10) years from the date of grant of the Option.
(c) Full payment of the Option price for the shares purchased shall be made
by the Participant on or before the exercise date specified in the
notice of exercise. Payment of the purchase price of any shares with
respect to which the Option is being exercised shall be (i) cash, (ii)
certified check to the order of the Corporation, or (iii) shares of
Common Stock of the Corporation valued at the Fair Market Value on such
Business Day as the Option or portion thereof is exercised.
(d) The Corporation shall not be required to deliver certificates for such
shares until full payment of the Option price has been made. On or as
soon as is practicable after the exercise date specified in the
Participant's notice and upon full payment of the Option price, the
Corporation shall cause to be delivered to the Participant a certificate
or certificates for the shares then being purchased (out of previously
unissued Common Stock or reacquired Common Stock, as the Corporation may
elect). The exercise of the Option and the resulting obligation of the
Corporation to deliver Common Stock shall, however, be subject to the
condition that the listing, registration, or qualification of the Option
or the shares upon any securities exchange or under any state or federal
law, or the consent, or approval of any governmental regulatory body
shall have been effected or obtained free of any conditions not
acceptable to the Committee.
(e) If the Participant fails to pay for any of the shares specified in such
notice or fails to accept delivery of the shares, his right to purchase
such shares may be terminated by the Corporation. The date specified in
the Participant's notice as the date of exercise shall be deemed the
date of exercise of the Option, provided that payment in full for the
shares to be purchased upon such exercise shall have been received by
such date.
(f) The holder of an Option shall not have any of the rights of a
stockholder with respect to the shares subject to the Option until such
shares shall be issued or transferred to him upon the exercise of his
Option.
<PAGE>
(g) Notwithstanding the foregoing, any shares that may be purchased as of
the Effective Date, pursuant to the terms of any Option granted prior to
the Effective Date, shall continue thereafter to be purchasable pursuant
to the exercise of such Option.
9. TERMINATION, DISABILITY, OR DEATH OF OPTION HOLDER. The ability to exercise
Options under this Plan shall be conditioned as follows:
(a) Exercise During and After Employment. Unless otherwise provided in the
terms of an Option, an Option may be exercised by the Participant while
he is an employee and has maintained since the date of the grant of the
Option continuous status as an employee. An Option granted pursuant to
this Plan may not be exercised more than three (3) months following the
termination of the Participant's employment with the Corporation or its
subsidiaries for any reason other than (i) retirement described in
subsection (b) below, (ii) permanent disability described in subsection
(c) below, or (iii) death as described in subsection (d) below.
(b) Exercise Upon Retirement. Unless otherwise provided in the terms of an
Option, if a Participant's continuous employment shall terminate by
reason of his retirement, at a retirement date authorized by the
Committee, from the Corporation or its subsidiaries, a retired
Participant shall become one hundred percent (100%) Vested in any Option
he has been granted under the Plan as of that date, and he may exercise
the otherwise exercisable Option anytime within six (6) months of his
retirement date.
(c) Exercise Upon Permanent Disability. Unless otherwise provided in the
terms of an Option, if a Participant's continuous employment shall
terminate by reason of a permanent disability (as determined by the
Participant's establishing to the Committee his disability as defined in
Code Section 22(e)(3) of the Code, as amended from time to time), then to
the extent that the Participant would have been entitled to exercise the
Option immediately prior to that disability, such Option of the disabled
Participant may be exercised during the period the Option could have been
exercised if the Participant had not been permanently disabled and had
remained in continuous employment; provided, however, that in all events
the Option shall terminate if not exercised within one (1) year of the
termination of employment due to permanent disability.
(d) Exercise Upon Death. Unless otherwise provided in the terms of an Option,
if a Participant's continuous employment shall terminate by reason of his
death, then to the extent that the Participant would have been entitled
to exercise the Option immediately prior to his death, such Option of the
deceased Participant may be exercised during the period the Option would
have been exercisable if the deceased Participant had not died and had
remained in employment, by the person or persons (including his estate)
to whom his rights under such Option shall have passed by will or by laws
of descent and distribution.
10. ADJUSTMENTS.
(a) In the event that the outstanding shares of Common Stock are hereafter
increased or decreased or changed into or exchanged for a different
number or kind of shares or other securities of the Corporation or of
another corporation, by reason of a recapitalization, reclassification,
stock split-up, combination of shares or dividend or other distribution
payable in capital stock, appropriate adjustment shall be made by the
Committee in the number and kind of shares for which Options may be
granted under the Plan. In addition, the Committee shall make appropriate
adjustment in the number and kind of shares as to which outstanding
Options, or portions thereof then unexercised, shall be exercisable, to
the end that the proportionate interest of the holder of the Option
shall, to the extent practicable, be maintained as before the occurrence
of such event. Such adjustment in outstanding Options shall be made
without change in the total price applicable to the
<PAGE>
unexercised portion of the Option but with a corresponding adjustment in
the Option price per share.
(b) In the event of the dissolution or liquidation of the Corporation, any
Option under the Plan shall terminate as of a date to be fixed by the
Committee, provided that not less than thirty (30) days' written notice
of the date so fixed shall be given to each Participant, and each such
Participant shall have the right during such period to exercise any of
his Options as to all or any part of the shares covered thereby including
shares as to which such Options would not otherwise be exercisable by
reason of an insufficient lapse of time.
(c) In the event of a Reorganization in which the Corporation is not the
surviving or acquiring corporation, or in which the Corporation is or
becomes a wholly-owned subsidiary of another corporation after the
effective date of the Reorganization, then
(1) if there is no Reorganization Agreement or if the Reorganization
Agreement does not specifically provide for the change, conversion,
or exchange of shares under outstanding and unexercised stock Options
for securities of another corporation, then the Committee shall take
such action, and the Options shall terminate, as provided in
subparagraph (b) of this Section 10; or
(2) if there is a Reorganization Agreement and if the Reorganization
Agreement specifically provides for the change, conversion, or
exchange of shares under outstanding and unexercised stock Options
for securities of another corporation, then the Committee shall
adjust the shares under the Plan, if the Reorganization Agreement
makes specified provision for such adjustment, in a manner not
inconsistent with the provisions of the Reorganization Agreement for
the adjustment, change, conversion, or exchange of such stock and
such Options.
(d) Adjustments and determinations under this Section 10 shall be made by the
Committee, whose decisions as to what adjustments or determinations shall
be made, and the extent thereof, shall be final, binding, and conclusive.
11. CHANGE OF CONTROL. Notwithstanding any other Plan provisions or grant
term, if any Participant is terminated involuntarily from employment with
the Corporation within twelve (12) months after a Change of Control, all
Options granted hereunder shall become exercisable regardless of the number
of years that have passed since the Date of Grant.
12. AMENDMENT AND TERMINATION. Unless the Plan shall theretofore have been
terminated as hereinafter provided, it shall terminate on, and no Option
shall be granted thereunder after the tenth (10th) anniversary of the
Effective Date. The Board may terminate the Plan or make such
modifications or amendments thereof as it shall deem advisable, or to
conform to any change in any law or regulation applicable thereto,
including (a) increasing the maximum number of shares to which Options may
be granted under the Plan, subject to shareholder approval, (b) changing
the class of employees eligible to be granted Options, subject to
shareholder approval, (c) increasing the periods during which Options may
be granted or Options may be exercised, or (d) providing for the
administration of the Plan in a manner which may avoid, without the consent
of the Participant to whom any Option shall theretofore have been granted,
adversely affecting the rights of such Participant under such grant.
13. RESTRICTIONS ON ISSUING SHARES. The transfer of a share of Common Stock
upon the exercise of each Option shall be subject to the condition that if
at any time the Corporation shall determine in its discretion that the
satisfaction of withholding tax or other withholding liabilities, or that
the listing, registration or qualification of any shares otherwise
deliverable upon any securities exchange or under any state or federal law,
or that the consent or approval of any regulatory body, is necessary or
desirable as a condition of, or in connection with, such transfer of shares
pursuant thereto, then in any such event, such transfer shall not be
effective unless such withholding, listing,
<PAGE>
registration, qualification, consent, or approval shall have been effected
or obtained under conditions acceptable to the Corporation.
14. USE OF PROCEEDS. The proceeds received from the sale of Common Stock
pursuant to the exercise of Options granted under the Plan shall be added
to the Corporation's general funds and used for general corporate purposes.
15. INDEMNIFICATION OF COMMITTEE. In addition to such other rights of
indemnification as they may have as members of the Board or as members of
the Committee, the members of the Committee shall be indemnified by the
Corporation against all costs and expenses reasonably incurred by them in
connection with any action, suit, or proceeding to which they or any of
them may be party by reason of any action taken or failure to act under or
in connection with the Plan, or any Option and against all amounts paid by
them in settlement thereof (provided such settlement is approved by legal
counsel selected by the Corporation) or paid by them in satisfaction of a
judgment in any such action, suit, or proceeding, except a judgment based
upon a finding of bad faith. Upon the institution of any such action,
suit, or proceeding, a Committee member shall notify the Corporation in
writing, giving an opportunity, at its own expense, to handle and defend
the same before such Committee member undertakes to handle it on his own
behalf.
16. EFFECTIVENESS OF THE PLAN. The Plan shall become effective as of the
Effective Date. Options may be granted to Participants prior to such date,
but the ability to exercise all such Options from such grant shall be
conditioned upon such approval and advice.
17. MISCELLANEOUS.
(a) Employment Not Affected. Neither the granting of an Option nor its
exercise shall be construed as granting to the Participant any right
with respect to continuance of his employment with the Corporation or
its subsidiaries. Except as may otherwise be limited by a written
agreement between the Corporation or its subsidiaries and the
Participant, the right of the Corporation or its subsidiaries to
terminate at will the Participant's employment with it at any time
(whether by dismissal, discharge, retirement, or otherwise) is
specifically reserved by the Corporation or its subsidiaries as the
employer or on behalf of the employer (whichever the case may be) and
acknowledged by the Participant.
(b) Notice. Any notice to the Corporation provided for in this instrument
shall be addressed to it in care of its Treasurer at its principal
office in West Virginia, and any notice to the Participant shall be
addressed to the Participant at the current address shown on the payroll
records of the Corporation. Any notice shall be deemed to be duly given
if and when properly addressed and posted by registered or certified
mail, postage prepaid.
CORPORATION:
_____________________________
By: _______________________________
Title: _____________________________ (CORPORATE SEAL)
Attest: _______________________________
Title: _______________________________
<PAGE>
Exhibit No. 5
Exhibit No. 23.1
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<CAPTION>
<S> <C> <C>
1000 TECHNOLOGY DRIVE, SUITE 2310 Bowles Rice 5th FLOOR, UNITED SQUARE
FAIRMONT, WEST VIRGINIA 26554 McDavid Graff & Love, pllc 501 AVERY STREET
TELEPHONE 304-368-4000 ATTORNEYS AT LAW PARKERSBURG, WEST VIRGINIA 26102
TELEPHONE 304-485-8500
105 WEST BURKE STREET 600 QUARRIER STREET
MARTINSBURG, WEST VIRGINIA 25401 POST OFFICE BOX 1386
TELEPHONE 304-263-0836 CHARLESTON, WEST VIRGINIA 25325-1386 1200 WORLD TRADE CENTER
TELEPHONE 304-347-1100 333 WEST VINE STREET
7000 HAMPTON CENTER, SUITE K www.bowlesrice.com LEXINGTON, KENTUCKY 40507
MORGANTOWN, WEST VIRGINIA 26505 TELEPHONE 606-225-8700
TELEPHONE 304-599-1390
June 23, 1999
WRITER'S DIRECT DIAL NUMBERS E-MAIL
(304) 347-1131 [email protected]
(304) 343-3058 Fax
</TABLE>
First Century Bankshares, Inc.
500 Federal Street
Bluefield, West Virginia 24701
Re: Form S-8 Registration Statement
-------------------------------
Ladies and Gentlemen:
This opinion is rendered in connection with the Form S-8 Registration
Statement (the "Registration Statement") filed by First Century Bankshares, Inc.
(the "Registrant") with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, with respect to the registration of 200,000
shares of common stock of Registrant, $1.25 par value ("Common Stock") issuable
in connection with Registrant's Non-Employee Director Stock Option Plan and
Officer Stock Option Plan (the "Plans"), all as set forth in the Registration
Statement.
We are of the opinion that if all the conditions set forth in the
Plans are satisfied, the Common Stock, when issued in connection with the Plans
in accordance with the terms set forth therein will be duly authorized, validly
issued, fully paid and nonassessable and will not be issued in violation of any
preemptive rights of any shareholder of Registrant.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our firm therein.
Very truly yours,
BOWLES RICE McDAVID GRAFF & LOVE, PLLC
By: /s/ Sandra M. Murphy
Sandra M. Murphy
SMM/jam
<PAGE>
Exhibit No. 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of First Century Bankshares, Inc. (formerly Pocahontas Bankshares
Corporation) on Form S-8 of our report, dated January 29, 1999, on our
audits of the consolidated financial statements of Pocahontas Bankshares
Corporation as of December 31, 1998 and 1997, and for each of the three
years in the period ended December 31, 1998, which report has been included
in Pocahontas Bankshares Corporation's Annual Report on Form 10-K filed
with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934.
/s/ PriceWaterhouseCoopers, LLP
---------------------------------
PriceWaterhouseCoopers, LLP
Charlotte, North Carolina
June 23, 1999
