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Registration No. 333-___________
As filed with the Securities and Exchange Commission on May 7, 1998
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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COMMUNITY FIRST BANKSHARES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 46-0391436
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
520 MAIN AVENUE
FARGO, NORTH DAKOTA 58124-0001
(Address of Principal Executive Offices and Zip Code)
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COMMUNITY FIRST BANKSHARES, INC. 1996 STOCK OPTION PLAN
COMMUNITY FIRST BANKSHARES, INC. 401(k) RETIREMENT PLAN
(Full title of the Plans)
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DONALD R. MENGEDOTH
PRESIDENT
COMMUNITY FIRST BANKSHARES, INC.
520 MAIN AVENUE
FARGO, NORTH DAKOTA 58103
(701) 298-5600
(Name, address and telephone number, including area code, of agent for service)
COPY TO:
Patrick Delaney
Lindquist & Vennum P.L.L.P.
4200 IDS Center
Minneapolis, MN 55402
(612) 371-3211
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share (1) Price (1) Fee
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<S> <C> <C> <C> <C>
Common Stock 3,000,000 shares(2) $50.265625 $125,664,062.50(3) $37,071(3)
$.01 Par Value
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</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high and
low sale prices of the Common Stock of Community First Bankshares, Inc.
(the "Company") on the Nasdaq National Market on May 6, 1998.
(2) Includes 2,000,000 shares offered pursuant to the 1996 Stock Option Plan
and an aggregate 1,000,000 shares offered pursuant to the 401(k) Retirement
Plan. On February 3, 1998, the Board of Directors of the Company approved
a two-for-one stock split in the form of a 100% dividend on the outstanding
shares of common stock of the Company. The dividend is payable on May 15,
1998 to shareholders of record on May 1, 1998. The dividend also was
subject to shareholder approval of an amendment increasing the Company's
authorized common stock, which was effected on April 28, 1998. The stock
dividend will effectively double the number of outstanding shares issued
and issuable pursuant to the 1996 Stock Option Plan and the 401(k)
Retirement Plan on May 1, 1998, to a total of 6,000,000 shares. Pursuant
to Rule 416, the additional 3,000,000 shares will be deemed registered
under this Registration Statement.
(3) Registration fees are being paid with respect to an aggregate 2,500,000
shares (Aggregate Offering Price of $125,664,062.50), consisting of
2,000,000 shares under the Company's 1996 Stock Option Plan and 500,000
shares under the Company's 401(k) Retirement Plan. Registration fees were
previously paid with respect to 500,000 shares registered on May 26, 1992
on Form S-8 (Commission File No. 33-48160) under the Company's 401(k)
Retirement Plan.
INCORPORATION OF CONTENTS OF REGISTRATION STATEMENT BY REFERENCE
A Registration Statement on Form S-8 (Commission File No. 33-48160) was
filed with the Securities and Exchange Commission on May 26, 1992 covering the
registration of 500,000 shares initially authorized for issuance under the
Company's 401(k) Retirement Plan. Pursuant to Rule 429 and General Instruction
E of Form S-8, this Registration Statement is being filed to register an
additional 500,000 shares authorized under the Company's 401(k) Retirement Plan.
This Registration Statement should also be considered a post-effective amendment
to the prior Registration Statement. The contents of the prior Registration
Statement are incorporated herein by reference.
PART I
Pursuant to the Note to Part I of Form S-8, the information required by
Items 1 and 2 of Form S-8 is not filed as a part of this Registration Statement.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference herein:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1997, as amended on Form 10-K/A filed with the Commission on March 27, 1998;
(b) The Company's Annual Report on Form 11-K for the 401(k) Retirement
Plan for the year ended December 31, 1996;
(c) The Definitive Proxy Statement dated March 10, 1998 for the Annual
Meeting of Shareholders held on April 28, 1998;
(d) The description of the Company's Common Stock and undesignated
Preferred Stock, as set forth on its Form 8-A Registration Statement filed with
the Commission on April 7, 1994, as amended on September 19, 1994;
(e) The description of the Company's Preferred Stock Purchase Rights, as
set forth in the Company's Form 8-A Registration Statement filed with the
Commission on January 9, 1995; and
(f) The Company's Current Report on Form 8-K, filed with the Commission
on May 6, 1998.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Lindquist & Vennum P.L.L.P. is rendering its opinion as to the validity of
the shares being registered hereby. Patrick Delaney, a partner of Lindquist &
Vennum P.L.L.P., is a director and holder of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Bylaws (the "Bylaws") provide that the
Company shall indemnify, to the full extent permitted by law, any person against
liabilities arising from their service as directors, officers, employees or
agents of the Company. Section 145 of Delaware Law empowers a corporation 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, suit 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
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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), 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 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 no
reasonable cause to believe his conduct was unlawful.
Section 145 also empowers a corporation 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 suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, 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 under similar standards, except
that no indemnification may be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless, and only to the extent that, the Court of Chancery or the court in which
such action was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that the indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled, and that the corporation is empowered to
purchase and maintain insurance on behalf of a director or officer of the
corporation 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 liabilities under
Section 145.
The Certificate and the Bylaws provide that no director of the Company
shall be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of Delaware
Law or (iv) for any transaction from which the director derived an improper
personal benefit. Any repeal or modification of this provision related to
director's liability shall not adversely affect any right or protection of a
director of the Company existing immediately prior to such repeal or
modification. Further, if Delaware Law shall be repealed or modified, the
elimination of liability of a director provided in the Certificate and the
Bylaws shall be to the fullest extent permitted by Delaware Law, as so amended.
Pursuant to Registration Rights Agreements with certain stockholders of the
Company, the Company has agreed to indemnify such stockholders against certain
liabilities, including liabilities under the Securities Act or otherwise. For
the undertaking with respect to indemnification, see Item 17 herein.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
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<C> <S>
5(a). Opinion and Consent of Lindquist & Vennum P.L.L.P. as to the
legality of the securities being registered.
5(b). Pursuant to Item 8(b) of the Form S-8, no opinion is included
regarding tax or ERISA matters. The Company has submitted the
401(k) Retirement Plan and any amendment thereto to the Internal
Revenue Service (the "IRS") in a timely manner and has made all
changes required by the IRS in order to qualify the 401(k)
Retirement Plan.
10(a) Community First Bankshares, Inc. 1996 Stock Option Plan
(incorporated by reference to Exhibit 10.15 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1995).
23(a). Consent of Lindquist & Vennum P.L.L.P. (included in Exhibit
5(a)).
23(b). Consent of Ernst & Young LLP, independent public accountants.
23(c). Consent of Arthur Andersen LLP, independent public accountants.
24 Power of Attorney (included on signature page).
99.1 Report of Arthur Andersen LLP regarding financial statements of
Mountain Parks Financial Corp.
</TABLE>
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, 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 registration statement is on Form S-3 or Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or 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
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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 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.
(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Fargo, State of North Dakota, on the 6th day of May,
1998.
COMMUNITY FIRST BANKSHARES, INC.
By /s/ Donald R. Mengedoth
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Donald R. Mengedoth, President, Chief
Executive Officer and Chairman of the Board
POWER OF ATTORNEY
The undersigned officers and directors of Community First Bankshares, Inc.
hereby constitute and appoint Donald R. Mengedoth and Mark A. Anderson with
power to act one without the other, our true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for us and in our
stead, in any and all capacities to sign any and all amendments (including post-
effective amendments) to this Registration Statement and all documents relating
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing necessary or advisable to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
the date and in the capacities indicated.
Signature
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/s/ Donald R. Mengedoth Dated: May 6, 1998
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Donald R. Mengedoth, President, Chief
Executive Officer, Chairman of the Board
of Directors and Director
(Principal Executive Officer)
/s/ Mark A. Anderson Dated: May 6, 1998
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Mark A. Anderson, Executive Vice President,
Chief Financial Officer, Chief Information
Officer and Secretary
(Principal Financial and Accounting Officer)
/s/ Patricia A. Adam Dated: May 6, 1998
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Patricia A. Adam, Director
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/s/ James T. Anderson Dated: May 6, 1998
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James T. Anderson, Director
/s/ Patrick E. Benedict Dated: May 6, 1998
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Patrick E. Benedict, Director
/s/ Patrick Delaney Dated: May 6, 1998
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Patrick Delaney, Director
/s/ John H. Flittie Dated: May 6, 1998
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John H. Flittie, Director
/s/ Darrell G. Knudson Dated: May 6, 1998
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Darrell G. Knudson, Director
/s/ Dennis M. Mathisen Dated: May 6, 1998
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Dennis M. Mathisen, Director
/s/ Thomas C. Wold Dated: May 6, 1998
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Thomas C. Wold, Director
/s/ Harvey L. Wollman Dated: May 6, 1998
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Harvey L. Wollman, Director
THE PLAN. Pursuant to the Securities Act of 1933, trustees (or other
persons who administer the employee benefit plan) have duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fargo, State of North Dakota, on May 6, 1998.
THE COMMUNITY FIRST BANKSHARES, INC.
401(k) RETIREMENT PLAN
By: Community First Bankshares, Inc.
Plan Administrator
By /s/ Mark A. Anderson
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Mark A. Anderson
Its Executive Vice President
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EXHIBIT 5(a)
May 6, 1998
Community First Bankshares, Inc.
520 Main Avenue
Fargo, North Dakota 58124-0001
Re: Opinion of Counsel as to Legality of 2,500,000 Shares of Common Stock
to be registered under the Securities Act of 1933
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under the
Securities Act of 1933 on Form S-8 of 2,500,000 shares of Common Stock, $.01
par value, of Community First Bankshares, Inc. (the "Company"), offered
pursuant to the Community First Bankshares, Inc. 1996 Stock Option Plan and
the Community First Bankshares, Inc. 401(k) Retirement Plan. These shares
are in addition to the 500,000 shares offered pursuant to the Company's
401(k) Retirement Plan and registered on a previous Registration Statement on
Form S-8 (Commission File No. 33-48160).
As counsel for the Company, we advise you that it is our opinion, based on
our familiarity with the affairs of the Company and upon our examination of
pertinent documents, that the 2,500,000 shares of Common Stock to be offered by
the Company under the 1996 Stock Option Plan and the 401(k) Retirement Plan,
will, when paid for and issued, be validly issued and lawfully outstanding,
fully paid and nonassessable shares of Common Stock of the Company.
The undersigned hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the Registration Statement
with respect to said shares of Common Stock under the Securities Act of 1933.
Very truly yours,
LINDQUIST & VENNUM P.L.L.P.
/s/ LINDQUIST & VENNUM P.L.L.P.
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EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and related prospectuses pertaining to the Community
First Bankshares, Inc. 1996 Stock Option Plan and the Community First
Bankshares, Inc. 401(k) Retirement Plan (the "Registration Statement") of our
reports (a) dated January 22, 1998, with respect to the consolidated financial
statements and schedules of Community First Bankshares, Inc. incorporated by
reference in its Annual Report, as amended, on Form 10-K/A No. 1 (the "Annual
Report") for the year ended December 31, 1997 and (b) dated June 27, 1997,
with respect to the financial statements and schedules of the Community First
Bankshares, Inc. 401(k) Retirement Plan (the "Plan") included in the Plan's
Annual Report (Form 11-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
We also consent to the incorporation by reference in the Registration
Statement of our report dated September 19, 1997, with respect to the financial
statements of KeyBank National Association (Wyoming), included in the Annual
Report.
/s/ ERNST & YOUNG LLP
Minneapolis, Minnesota
May 6, 1998
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EXHIBIT 23(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
and to all references to our firm included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
/s/ Arthur Andersen LLP
Minneapolis, Minnesota,
May 6, 1998
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Exhibit 99.1
REPORT OF
INDEPENDENT PUBLIC ACCOUNTANTS
To Mountain Parks Financial Corp.:
We have audited the consolidated statement of financial condition of
Mountain Parks Financial Corp. (a Delaware corporation) and subsidiaries as of
December 31, 1995, and the related consolidated statements of income,
stockholders' equity and cash flows for the year then ended, not
presented separately herein. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above, not
presented separately herein, present fairly, in all material aspects, the
financial position of Mountain Parks Financial Corp. and subsidiaries as of
December 31, 1995, and the results of their operations and their cash flows
for the year then ended, in conformity with generally accepted accounting
principles.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
March 1, 1996
