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Registration No. 333-
As filed with the Securities and Exchange Commission on March 23, 1999
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________________
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 Identification No.)
incorporation or organization)
520 MAIN AVENUE
FARGO, NORTH DAKOTA 58124-0001
(Address of Principal Executive Offices and Zip Code)
____________________________
COMMUNITY FIRST BANKSHARES, INC.
DEFERRED COMPENSATION PLAN FOR MEMBERS OF THE BOARD OF DIRECTORS
COMMUNITY FIRST BANKSHARES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Full title of the Plans)
____________________________
DONALD R. MENGEDOTH
PRESIDENT
COMMUNITY FIRST BANKSHARES, INC.
520 MAIN AVENUE
FARGO, NORTH DAKOTA 58124
(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 150,000 shares(2) $18.844 $2,826,600 $786
$.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 March 17, 1999.
(2) Includes 50,000 shares offered pursuant to the Deferred Compensation Plan
for Members of the Board of Directors and 100,000 shares offered pursuant
to the Supplemental Executive Retirement Plan.
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.
2
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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, 1998, as filed with the Commission on March 23, 1999;
(b) The Definitive Proxy Statement dated March 23, 1999 for the Annual
Meeting of Shareholders to be held on April 27, 1999;
(c) 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;
(d) 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
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.
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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 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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
Exhibit
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<C> <S>
4.1 Community First Bankshares, Inc. Deferred Compensation Plan for
Members of the Board of Directors, effective as of August 1,
1993, as amended by First Amendment effective as of February 1,
1999 (incorporated by reference to Exhibit 10.14 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1998, as filed with the Commission on March 23,
1999).
4.2 Community First Bankshares, Inc. Supplemental Executive
Retirement Plan (incorporated by reference to Exhibit 10.13 to
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
Securities and Exchange Commission on March 27, 1998.)
5.1 Opinion and Consent of Lindquist & Vennum P.L.L.P. as to the
legality of the securities being registered.
23.1 Consent of Lindquist & Vennum P.L.L.P. (included in Exhibit
5(a)).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Baird, Kurtz & Dobson.
23.4 Consent of Starr Colton Pena Vogel & Co.
23.5 Consent of Simpson & Company.
24 Power of Attorney (included on signature page).
</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;
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(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) above 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 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
THE REGISTRANT.
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on
the 23rd day of March, 1999.
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.
<TABLE>
Signature
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<S> <C>
/s/ Donald R. Mengedoth Dated: March 23, 1999
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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: March 23, 1999
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Mark A. Anderson, Vice Chairman,
Chief Financial Officer, Chief Information
Officer, Treasurer and Secretary
(Principal Financial and Accounting Officer)
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/s/Patricia A. Adam Dated: March 23, 1999
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Patricia A. Adam, Director
/s/James T. Anderson Dated: March 23, 1999
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James T. Anderson, Director
/s/Patrick E. Benedict Dated: March 23, 1999
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Patrick E. Benedict, Director
/s/Patrick Delaney Dated: March 23, 1999
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Patrick Delaney, Director
/s/John H. Flittie Dated: March 23, 1999
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John H. Flittie, Director
/s/Darrell G. Knudson Dated: March 23, 1999
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Darrell G. Knudson, Director
/s/Dennis M. Mathisen Dated: March 23, 1999
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Dennis M. Mathisen, Director
/s/Marilyn R. Seymann Dated: March 23, 1999
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Marilyn R. Seymann, Director
/s/Thomas C. Wold Dated: March 23, 1999
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Thomas C. Wold, Director
/s/Harvey L. Wollman Dated: March 23, 1999
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Harvey L. Wollman, Director
</TABLE>
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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 Minneapolis, State of Minnesota, on March 23,
1999.
THE COMMUNITY FIRST BANKSHARES, INC.
DEFERRED COMPENSATION PLAN FOR
MEMBERS OF THE BOARD OF DIRECTORS
By: Community First Bankshares, Inc.,
Plan Administrator
By: /s/Mark A. Anderson
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Mark A. Anderson
Its: Vice Chairman
THE SUPPLEMENTAL 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 March 23, 1999.
THE COMMUNITY FIRST BANKSHARES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
By: Community First Bankshares, Inc. Board of
Directors, Plan Administrator
By: /s/Mark A. Anderson
-------------------
Mark A. Anderson
Its: Vice Chairman
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EXHIBIT INDEX
<TABLE>
EXHIBIT
NUMBER EXHIBIT TITLE
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<S> <C>
5.1 Opinion of Lindquist & Vennum P.L.L.P. as to the legality of the
securities being registered
23.2 Consent of Ernst & Young LLP
23.3 Consent of Baird, Kurtz & Dobson.
23.4 Consent of Starr Colton Pena Vogel & Co.
23.5 Consent of Simpson & Company
</TABLE>
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EXHIBIT 5.1
[Lindquist & Vennum P.L.L.P.]
March 23, 1999
Community First Bankshares, Inc.
520 Main Avenue
Fargo, North Dakota 58124-0001
Re: Opinion of Counsel as to Legality of 150,000 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 an aggregate 150,000 shares of Common
Stock, $.01 par value, of Community First Bankshares, Inc. (the "Company"),
offered pursuant to the Community First Bankshares, Inc. Deferred Compensation
Plan for Members of the Board of Directors (the "Plan") and the Community First
Bankshares, Inc. Supplemental Executive Retirement Plan (the "SERP").
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 50,000 shares of Common Stock to be offered
by the Company under the Plan and the 100,000 shares of Common Stock to be
offered by the Company under the SERP 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.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Community First Bankshares, Inc. Deferred
Compensation Plan for Members of the Board of Directors and Supplemental
Executive Retirement Plan of our report dated March 5, 1999, with respect to
the consolidated financial statements of Community First Bankshares, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Minneapolis, Minnesota
March 22, 1999
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EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 23, 1998, relating to the
financial statements of Community Bancorp, Inc. as of and for each of the two
years in the period ended December 31, 1997, which appears in the 1998 annual
report on Form 10-K of Community First Bankshares, Inc.
/s/ BAIRD, KURTZ & DOBSON
Denver, Colorado
March 22, 1999
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EXHIBIT 23.4
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.
/s/ STARR COLTON PENA VOGEL & CO.
El Paso, Texas
March 22, 1999
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EXHIBIT 23.5
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.
/s/ SIMPSON & COMPANY
Salt Lake City, Utah
March 22, 1999
