FIRST COMMUNITY BANCSHARES, INC. S-3
As filed with the U.S. Securities and Exchange Commission on September 26, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST COMMUNITY BANCSHARES, INC.
(Exact Name of Registrant as Specified in its Charter)
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Nevada
(State or other jurisdiction of
incorporation or organization)
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55-0694814
(I.R.S. Employer
Identification No.) |
One Community Place
Bluefield, Virginia 24605
(276) 326-9000
(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices)
John M. Mendez
President and Chief Executive Officer
First Community Bancshares, Inc.
P.O. Box 989
Bluefield, Virginia 24605-0989
(276) 326-9000
(Name, address, including zip code, and telephone number, including area code, of agent for service for Registrant)
with copies to:
Norman B. Antin, Esq.
Jeffrey D. Haas, Esq.
Patton Boggs LLP
2550 M Street, NW
Washington, DC 20037-1350
(202) 457-6000
Approximate date of commencement of proposed sale to the public: From time to time after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with the dividend or interest reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment hereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated
filer o | Accelerated
filer þ | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Amount of |
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Title of Each Class of |
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Amount to be |
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Proposed Maximum |
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Aggregate |
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Registration |
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Securities to be Registered(2) |
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Registered(3) |
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Price per Unit(4) |
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Offering Price(5) |
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Fee(l) |
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First Community Bancshares, Inc.: |
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Common Stock |
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Preferred Stock |
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Warrants to purchase Common Stock |
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Warrants to purchase Preferred Stock |
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Units |
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TOTAL: |
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$100,000,000.00 |
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$100,000,000.00 |
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$3,930.00 |
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(1) |
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Estimated in accordance with Rule 457(o) solely for the purpose of calculating the
registration fee. |
(2) |
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Any securities registered hereunder may be sold separately or together with other securities
registered hereunder as units. |
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Includes such indeterminate number of shares of common stock, shares of preferred stock,
warrants to purchase common stock, warrants to purchase preferred stock and units that First
Community Bancshares, Inc. may sell pursuant to this Registration Statement, which may not
exceed the maximum aggregate offering price of $100,000,000.00. The securities registered
hereunder also include such indeterminate number of shares of common stock, preferred stock,
warrants or units that may be issued upon conversion, exchange or exercise of any of the
securities being registered hereby. |
(4) |
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Omitted pursuant to General Instruction II.D of Form S-3. The proposed maximum offering
price per class of security will be determined from time to time by First Community
Bancshares, Inc. in connection with, and at the time of, the issuance by First Community
Bancshares, Inc. of the securities registered hereunder. |
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In no event will the aggregate initial offering price of the securities issued under this
Registration Statement exceed the amount registered above or the equivalent thereof in one
or more foreign currencies or currency units. |
The Registrant hereby amends this Registration Statement on such date or dates as may be
necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
We will amend and complete the information in this prospectus. We may not sell any of these
securities or accept your offer to buy any of them until the documentation filed with the SEC
relating to these securities has been declared effective by the SEC. This prospectus is not an
offer to sell these securities or our solicitation of your offer to buy these securities in any State or other jurisdiction where that would not be permitted or legal.
SUBJECT TO COMPLETION, DATED SEPTEMBER 26, 2008
PROSPECTUS
FIRST COMMUNITY BANCSHARES, INC.
$100,000,000
Common Stock, Preferred Stock,
Warrants and Units
We may offer from time to time common stock, preferred stock, warrants and units. We may also
issue any of the common stock, preferred stock, warrants or units upon the conversion, exchange or
exercise of any of the securities listed above. The aggregate initial offering price of the
securities that we offer will not exceed $100,000,000.
We will offer the securities in amounts, at prices and on terms to be determined by market
conditions at the time of the offering. We will provide the specific terms of these securities in
supplements to this prospectus. You should read this prospectus and the accompanying prospectus
supplement carefully before you invest.
Our common stock is listed on The NASDAQ Global Select Market under the symbol FCBC.
We may offer and sell these securities to or through one or more underwriters, dealers and
agents, or directly to purchasers, on a continuous or delayed basis.
You should refer to the risk factors that may be included in a prospectus supplement and in
our periodic reports and other information we file with the U.S. Securities and Exchange
Commission and carefully consider that information before investing in our securities.
These securities will be our equity securities or unsecured obligations of us, will not be
savings accounts, deposits or other obligations of any bank or savings association, and will not be
insured by the Federal Deposit Insurance Corporation or any other governmental agency or
instrumentality.
Neither the U.S. Securities and Exchange Commission nor any state securities commission
has approved or disapproved of these securities or determined that this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2008.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the U.S.
Securities and Exchange Commission, or the SEC, utilizing the shelf registration
process. Under this shelf process, we may sell, either separately or together, any
combination of the securities described in this prospectus in one or more offerings. We
may also issue any of the common stock, preferred stock, warrants or units upon
conversion, exchange or exercise of any of the securities mentioned above. The
aggregate amount of securities that we may offer under the registration statement is
$100,000,000.00, denominated in U.S. dollars or the equivalent in foreign currencies,
currency units or composite currencies.
This prospectus provides you with a general description of the securities that we
may offer. Each time we sell securities pursuant to this prospectus, we will provide a
prospectus supplement that will contain specific information about the offering and the
specific terms of the securities being offered. The prospectus supplement may also add,
update or change information contained in this prospectus. You should read both this
prospectus and the applicable prospectus supplement, together with the additional
information described under the heading Where You Can Find More Information.
The registration statement that contains this prospectus, including the exhibits
to the registration statement, contains additional information about us and the
securities offered under this prospectus. That registration statement can be read at
the SEC web site, our website, or at the SEC offices, which are mentioned in this
prospectus under the heading Where You Can Find More Information.
The words we, our, us, the Company, and First Community refer to First
Community Bancshares, Inc., unless we indicate otherwise.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplements contain or incorporate
by reference forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the
Securities Exchange Act of 1934, as amended, or the Exchange Act. These forward-looking
statements represent plans, estimates, objectives, goals, guidelines, expectations,
intentions, projections and statements of our beliefs concerning future events,
business plans, objectives, expected operating results and the assumptions upon which
those statements are based. Forward-looking statements include without limitation, any
statement that may predict, forecast, indicate or imply future results, performance or
achievements, and are typically identified with words such as may, could,
should, will, would, believe, anticipate, estimate, expect, intend,
plan, or words or phases of similar meaning. We caution that the forward-looking
statements are based largely on our expectations and are subject to a number of known
and unknown risks and uncertainties that are subject to change based on factors which
are, in many instances, beyond our control. Actual results, performance or achievements
could differ materially from those contemplated, expressed, or implied by the
forward-looking statements.
The following factors, among others, could cause our financial performance to
differ materially from that expressed in such forward-looking statements:
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the strength of the United States economy in general and the strength of the
local economies in which the Company conducts operations; |
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geopolitical conditions, including acts or threats of terrorism, actions
taken by the United States or other governments in response to acts or threats
of terrorism and/or military conflicts, which could impact business and
economic conditions in the United States and abroad; |
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the effects of, and changes in, trade, monetary and fiscal policies and
laws, including interest rate
policies of the Board of Governors of the Federal Reserve System, or the Federal
Reserve Board; inflation, interest rate, market and monetary fluctuations; |
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the timely development of competitive new products and services and the
acceptance of these products and services by new and existing customers; |
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the willingness of users to substitute competitors products and services
for our products and services; |
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the impact of changes in financial services policies, laws and regulations,
including laws, regulations and policies concerning taxes, banking, securities
and insurance, and the application thereof by regulatory bodies; |
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technological changes; |
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the effect of acquisitions we may make, including, without limitation, the
failure to achieve the expected revenue growth and/or expense savings from such
acquisitions; |
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the growth and profitability of non-interest or fee income being less than
expected; |
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changes in consumer spending and savings habits; and |
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unanticipated regulatory or judicial proceedings. |
If one or more of the factors affecting our forward-looking information and
statements proves incorrect, then our actual results, performance or achievements could
differ materially from those expressed in, or implied by, forward-looking information
and statements contained in this prospectus and in the information incorporated by
reference herein. Therefore, we caution you not to place undue reliance on our
forward-looking information and statements. We will not update the forward-looking
statements to reflect actual results or changes in the factors affecting the
forwarding-looking statements.
FIRST COMMUNITY BANCSHARES, INC.
We are a financial holding company incorporated under the laws of the State of
Nevada and serve as the holding company for First Community Bank, a national banking
association, or the Bank, that conducts commercial banking operations within the states
of Virginia, West Virginia, North Carolina and Tennessee. In addition, the Bank
maintains a loan production office in South Carolina. We also own Greenpoint Insurance
Group, Inc., a full-service insurance agency, and Investment Planning Consultants, an
investment advisory firm. First Community Bank conducts its banking operations through
58 locations and four wealth management offices and is regulated by The Office of the
Comptroller of the Currency.
Our principal executive offices are located at One Community Place, Bluefield,
Virginia 24605 and our telephone number is (276) 326-9000.
RISK FACTORS
An investment in our securities involves a high degree of risk. Before making an
investment decision, you should carefully read and consider the risk factors
incorporated by reference in this prospectus, as well as those contained in any
applicable prospectus supplement, as the same may be updated from time to time by our
future filings with the SEC under the Exchange Act. You should also refer to other
information contained in or incorporated by reference in this prospectus and any
applicable prospectus supplement, including our financial statements and the related
notes incorporated by reference herein. Additional risks and uncertainties not
presently known to us at this time or that we currently deem immaterial may also
materially and adversely affect our business and operations.
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USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, we will use
the proceeds from the sale of the securities described in this prospectus for general
corporate purposes and to support our ongoing and future anticipated growth. Pending
such use, we may temporarily invest the proceeds or use them to reduce short-term
indebtedness. The applicable prospectus supplement will provide more details on the use
of proceeds of any specific offering.
DESCRIPTION OF SECURITIES WE MAY OFFER
This prospectus contains summary descriptions of our common stock, preferred
stock, warrants and units that we may offer from time to time. These summary
descriptions are not meant to be complete descriptions of each security. The particular
terms of any security will be described in the accompanying prospectus supplement and
other offering material. The accompanying prospectus supplement may add, update or
change the terms and conditions of the securities as described in this prospectus.
DESCRIPTION OF COMMON STOCK
General
This section of the prospectus describes the material terms and provisions of our
common stock. When we offer to sell shares of our common stock, we will describe the
specific terms of the offering and the shares in a supplement to this prospectus. This
summary does not purport to be exhaustive and is qualified in its entirety by reference
to our articles of incorporation, as amended, our bylaws, as amended, and the
applicable provisions of Nevada law.
Our authorized capital stock consists of 25,000,000 shares of our common stock,
par value $1.00 per share. Our authorized capital stock may be increased and altered
from time to time in the manner prescribed by Nevada law upon the vote of at least a
majority of the shares entitled to vote on the matter. Our shares of common stock are
traded on The NASDAQ Global Select Market under the symbol FCBC.
Each share of our common stock is entitled to one vote on all matters submitted to
a vote at any meeting of stockholders. Holders of our common stock are entitled to
receive dividends when, as, and if declared by our board of directors out of funds
legally available therefor and, upon liquidation, to receive pro rata all assets, if
any, of the Company that are available for distribution after the payment of creditors.
Holders of our common stock have no preemptive rights to subscribe for any additional
securities of any class that we may issue, nor any conversion, redemption or sinking
fund rights. Holders of our common stock have no right to cumulate votes in the
election of directors. The rights and privileges of holders of our common stock are
subject to any preferences that our board of directors may set for any series of
preferred stock that we may issue in the future.
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Transactions with Interested Persons
Under the Nevada Revised Statutes, or NRS, a transaction with First Community (i)
in which a First Community director or officer has a direct or indirect interest, or
(ii) involving another corporation, firm or association in which one or more of First
Communitys directors or officers are directors or officers of the corporation, firm or
association or have a financial interest in the corporation firm or association, is not
void or voidable solely because of the directors or officers interest or common role
in the transaction if any one of the following circumstances exists:
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the fact of the common directorship, office or financial interest is
known to the board of directors or a committee of the board of directors and a
majority of disinterested directors on the board of directors (or on the
committee) authorized, approved or ratified the transaction; |
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the fact of the common directorship, office or financial interest is
known to the stockholders and disinterested stockholders holding a majority of
the shares held by disinterested stockholders authorized, approved or ratified
the transaction; |
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the fact of the common directorship, office or financial interest is not
known to the director or officer at the time the transaction is brought to the
board of directors for action; or |
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the transaction was fair to First Community at the time it is authorized
or approved. |
Control Share Acquisition Provisions
Nevada law contains provisions that, under certain circumstances, would preclude an
acquirer of the shares of a Nevada corporation who crosses one of three voting
thresholds (20%, 33 1/3% or 50%) from obtaining voting rights with respect to such shares unless the disinterested holders of a majority of the shares of First Community
held by disinterested stockholders votes to accord voting power to such shares. The
statute provides that, if authorized by the articles of incorporation or bylaws in
effect on the 10th day following the acquisition of the controlling interest
by an acquiring person, First Community may call for redemption of not less than all of
the control shares at the average price paid for the control shares if the acquirer has
not complied with certain procedural requirements or if the control shares are not
accorded full voting rights by the stockholders.
Combinations with Interested Stockholders
Under the NRS, except under certain circumstances, a corporation is not permitted
to engage in a business combination with any interested stockholder for a period of
three years following the date such stockholder became an interested stockholder. An
interested stockholder is a person or entity who owns 10% or more of the outstanding shares of voting stock. Nevada permits a corporation to opt out of the application of
these business combination provisions by so providing in the articles of incorporation.
First Community opted out of the application of these business combination provisions in
its articles of incorporation, as amended. Instead, First Communitys articles of
incorporation, as amended, require the approval of holders of more than 85% of First
Communitys outstanding shares entitled to vote thereon for any of the following
transactions between First Community and any individual, firm, corporation or other
entity (or any affiliate of any of the foregoing) that directly or indirectly
beneficially owns 15% or more of First Communitys outstanding shares of stock entitled
to vote for the election of directors:
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any merger or consolidation of First Community or any subsidiary of First
Community with or into the firm, corporation or other entity; |
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any sale, lease, exchange, transfer or other disposition (whether in a
single transaction or a series of related transactions) to or with the individual,
firm, corporation or other entity of any assets of First Community or any
subsidiary of First Community when such assets have an aggregate fair market value
of $5,000,000 or more; |
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the issuance or transfer to or with the individual, firm, corporation or
other entity by First Community or any subsidiary of First Community of any equity
securities of First Community or any subsidiary of First Community where any such
equity securities have an aggregate fair market value of $5,000,000 or more; |
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the adoption of any plan or proposal for the liquidation or dissolution of
First Community; or |
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any agreement, contract or other arrangement providing for any of the
foregoing. |
Restrictions on Ownership
The Bank Holding Company Act of 1956, as amended, or BHC Act, generally would
prohibit any company that is not engaged in banking activities and activities that are
permissible for a bank holding company or a financial holding company from acquiring
control of First Community. Control is generally defined as ownership of 25% or more
of the voting stock or other exercise of a controlling influence. Under the BHC Act,
any existing bank holding company would require the prior approval of the Federal
Reserve Board, before acquiring 5% or more of the voting stock of First Community. In
addition, the Change in Bank Control Act of 1978, as amended, or CBC Act, prohibits a
person or group of persons from acquiring control of a bank holding company unless
the Federal Reserve Board has been notified and has not objected to the transaction.
Under a rebuttable presumption established by the Federal Reserve Board, the
acquisition of 10% or more of a class of voting stock of a bank holding company with a
class of securities registered under Section 12 of the Exchange Act, such as First
Community, would, under the circumstances set forth in the presumption, constitute
acquisition of control of the bank holding company.
Transfer Agent
The transfer agent and registrar for First Community common stock is BNY Mellon
Shareowner Services.
DESCRIPTION OF PREFERRED STOCK
General
This section of the prospectus describes the material terms and provisions of our
preferred stock. When we offer to sell shares of our preferred stock, we will describe
the specific terms of the offering and the shares in a supplement to this prospectus.
The prospectus supplement will also indicate whether the terms and provisions described
in this prospectus apply to the particular series of preferred stock. This summary does
not purport to be exhaustive and is qualified in its entirety by reference to our
articles of incorporation, as amended, our bylaws, as amended, and the applicable
provisions of Nevada law.
Our authorized capital stock consists of 1,000,000 shares of our preferred stock,
with par value to be determined by our board of directors. Under our articles of
incorporation, as amended, we may issue shares of preferred stock in one or more
series, as may be determined by our board of directors or a duly authorized committee.
Our board of directors or a committee thereof may also establish, from time to time,
the number of shares to be included in each series and may fix the designation, powers,
preferences and rights of the shares
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of each such series and any qualifications, limitations or restrictions thereof,
and may increase or decrease the number of shares of any series without any further
vote or action by the stockholders. Any preferred stock we may issue will rank senior
to our common stock with respect to the payment of dividends or amounts paid upon
liquidation, dissolution or winding up of our company, or both. In addition, any shares
of our preferred stock may have class or series voting rights. Under certain
circumstances, the issuance of shares of our preferred stock, or merely the existing
authorization of our board of directors to issue shares of our preferred stock, may
tend to discourage or impede a merger or other change in control of our company. No shares of preferred stock are currently outstanding. Each series of preferred stock
will be issued under a certificate of designation, which will be filed with the SEC as
an exhibit to a document incorporated by reference in this prospectus concurrently with
the offering of such preferred stock. It is also subject to our articles of
incorporation, as amended, which is incorporated by reference as an exhibit to this
registration statement.
Our board of directors is authorized to determine or fix from time to time by
resolution the following terms for each series of preferred stock, which will be
described in a prospectus supplement:
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the designation of such series and the number of shares to constitute such series; |
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the par value of the shares of such series, if any; |
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the voting rights, if any; |
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the dividend rate; |
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whether dividends are cumulative and, if so, the date from which dividends
cumulate; |
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the payment date for dividends; |
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redemption rights, the applicable redemption prices and such other conditions of
redemption; |
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amounts payable to holders on our liquidation, dissolution or winding up; |
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the amount of the sinking fund, if any; |
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whether the shares will be convertible or exchangeable into equity, and, if so,
the prices and terms of conversion and such other terms and conditions of such
conversion or exchange; |
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whether future shares of the series or any future series or other class of stock
is subject to any restrictions, and, if so, the nature of the restrictions; |
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the conditions or restrictions, if any, upon the issuance of any additional stock;
and |
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any other powers, preferences and relative, participating, optional and other
special rights, and any qualifications, limitations and restrictions thereof. |
The preferred stock will be, when issued, fully paid and nonassessable. Holders of
preferred stock will not have any preemptive or subscription rights to acquire more
stock of the Company.
The transfer agent, registrar, dividend disbursing agent and redemption agent for shares of each series of preferred stock will be named in the prospectus supplement
relating to such series.
The rights of holders of the preferred stock offered may be adversely affected by
the rights of holders of any shares of preferred stock that may be issued in the
future. The board of directors may cause shares of preferred stock to be issued in
public or private transactions for any proper corporate purpose. Examples of proper
corporate purposes include issuances to obtain additional financing in connection with
acquisitions or otherwise, and issuances to our officers, directors and employees and
our subsidiaries pursuant to benefit plans or otherwise.
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Rank
Unless otherwise specified in the prospectus supplement relating to the shares of
any series of preferred stock, such shares will rank on an equal basis with each other
series of preferred stock and prior to the common stock as to dividends and
distributions of assets.
Dividends
The holders of each series of preferred stock will be entitled to receive cash
dividends if declared by our board of directors out of funds we can legally use for
payment The prospectus supplement will indicate the dividend rates and the dates on
which we will pay dividends as to each series of preferred stock The rates may be fixed
or variable or both. If the dividend rate is variable, the formula used to determine
the dividend rate will be described in the prospectus supplement. We will pay dividends
to the holders of record of each series of preferred stock as they appear on the record
dates fixed by our board of directors.
Our board of directors will not declare and pay a dividend on any series of
preferred stock unless full dividends for all series of preferred stock ranking equal
as to dividends have been declared or paid and sufficient funds are set aside for
payment If dividends are not paid in full to each series of preferred stock, we will
declare any dividends pro rata among the preferred stock of each series and any series
of preferred stock ranking equal to any other series as to dividends. A pro rata
declaration means that the dividends we declare per share on each series of preferred
stock will bear the same relationship to each other that the full accrued dividends per
share on each series of the preferred stock bear to each other.
Unless all dividends on the preferred stock of each series have been paid in full,
we will not declare or pay any dividends or set aside sums for payment of dividends or
distributions on any common stock or on any class of security ranking junior to a
series of preferred stock, except for dividends or distributions paid for with
securities ranking junior to the preferred stock. We also will not redeem, purchase, or
otherwise acquire any securities ranking junior to a series of preferred stock as to
dividends or liquidation preferences, except by conversion into or exchange for stock
ranking junior to the series of preferred stock.
Conversion or Exchange
The applicable prospectus supplement for any series of preferred stock will state
the terms, if any, on which shares of that series are convertible or exchangeable into shares of our common stock or another series of our preferred stock. The terms of any
such conversion or exchange and any such preferred stock will be described in the
prospectus supplement relating to such series of preferred stock.
Redemption
If so specified in the applicable prospectus supplement, a series of preferred
stock may be redeemable at any time, in whole or in part, at our option of or the
holder thereof and may be mandatory redeemed.
Any partial redemptions of preferred stock will be made in a way that our board of
directors decides is equitable.
Unless we default in the payment of the redemption price, dividends will cease to
accrue after the redemption date on shares of preferred stock called for redemption and
all rights of holders of such shares will terminate, except for the right to receive
the redemption price.
7
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of First
Community, holders of each series of preferred stock will be entitled to receive
distributions upon liquidation in the amount set forth in the prospectus supplement
relating to such series of preferred stock. Such distributions will be made before any
distribution is made on any securities ranking junior relating to liquidation,
including common stock.
If the liquidation amounts payable relating to the preferred stock of any series
and any other securities ranking on a parity regarding liquidation rights are not paid
in full, the holders of the preferred stock of such series and such other securities
will share in any such distribution of our available assets on a ratable basis in
proportion to the full liquidation preferences. Holders of such series of preferred
stock will not be entitled to any other amounts from us after they have received their
full liquidation preference.
Voting rights
The holders of shares of preferred stock will have no voting rights, except:
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as otherwise stated in the prospectus supplement; |
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as otherwise stated in the certificate of designation establishing such series; or |
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as required by applicable law. |
Under regulations adopted by the Federal Reserve Board, if the holders of the
preferred stock of any series become entitled to vote for the election of directors
because dividends on the preferred stock of such series are in arrears, preferred stock
of such series could be deemed a class of voting securities. In this instance, a
holder of 25% or more of the preferred stock of such series could then be subject to
regulation as a bank holding company in accordance with the BHC Act. A holder of 5% or
more of such series that otherwise exercises a controlling influence over us could
also be subject to regulation under the BHC Act. In addition, at any time a series of
the preferred stock is deemed a class of voting securities, (1) any other bank holding
company may be required to obtain the approval of the Federal Reserve Board to acquire
or retain 5% or more of the outstanding shares of such series of preferred stock, and
(2) any person other than a bank holding company may be required to file with the
Federal Reserve Board under the CBC Act to acquire or retain 10% or more of that
series.
DESCRIPTION OF WARRANTS
In this section, we describe the general terms and provisions of the warrants for
the purchase of preferred stock or common stock that we may issue. Warrants issued
pursuant to this prospectus may be issued independently or together with any preferred
stock or common stock. Warrants sold with other securities may be attached to or
separate from the other securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a warrant agent who will
be specified in the warrant agreement and in the prospectus supplement. The warrant
agent will act solely as our agent in connection with the warrants of that series and
will not assume any obligation or relationship of agency or trust for or with any
holders or beneficial owners of warrants.
This summary of some of the terms and other provisions of the warrants that may be
issued is not complete and is qualified in its entirety by reference to the applicable
warrant agreement and related warrant certificate and the prospectus supplement, which
both will be filed with the SEC. You should refer to this prospectus, the prospectus
supplement, the warrant agreement, including the forms of securities warrant
8
certificate representing the securities warrants, relating to the specific
warrants that we may offer for the complete terms of the warrant agreement and the
warrants. For more information on how you can obtain copies of the applicable warrant
agreement, if we offer warrants, see Where You Can Find More Information. We urge
you to read the applicable warrant agreement and the applicable prospectus supplement
and any other offering material in their entirety.
The applicable prospectus supplement related to an issuance of warrants will
describe the following terms, where applicable, of the warrants in respect of which
this prospectus is being delivered:
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the title of the warrants; |
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the aggregate number of the warrants; |
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the price or prices at which the warrants will be issued; |
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the currency or currencies (including composite currencies) in which the
price or prices of the warrants may be payable; |
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the designation, amount and terms of the offered securities purchasable upon
exercise of the warrants; |
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if applicable, the date on and after which the warrants and the offered
securities purchasable upon exercise of the warrants will be separately
transferable; |
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the terms of the securities purchasable upon exercise of such warrants and
the procedures and conditions relating to the exercise of such warrants; |
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any provisions for adjustment of the number or amount of securities
receivable upon exercise of the warrants or the exercise price of the warrants; |
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the price or prices at which and currency or currencies in which the offered
securities purchasable upon exercise of the warrants may be purchased; |
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the date on which the right to exercise the warrants shall commence and the
date on which the right shall expire; |
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if applicable, the minimum or maximum amount of the warrants that may be
exercised at anyone time; |
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information with respect to book-entry procedures, if any; and |
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any other material terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants. |
The prospectus supplement relating to any warrants to purchase equity securities
may also include, if applicable, a discussion of certain U.S. federal income tax and
ERISA considerations.
Warrants for the purchase of preferred stock and common stock will be offered and
exercisable for U.S. dollars only. Warrants will be issued in registered form only.
Each warrant will entitle its holder to purchase the number of shares of preferred
stock or common stock at the exercise price set forth in, or calculable as set forth
in, the applicable prospectus supplement and warrant agreement.
After the close of business on the expiration date, unexercised warrants will
become void. We will specify the place or places where, and the manner in which,
warrants may be exercised in the applicable prospectus supplement.
9
Upon receipt of payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement, we will, as soon as practicable,
forward the purchased securities. If less than all of the warrants represented by the
warrant certificate are exercised, a new warrant certificate will be issued for the
remaining warrants.
Prior to the exercise of any warrants to purchase preferred stock or common stock,
holders of the warrants will not have any of the rights of holders of the preferred
stock or common stock purchasable upon exercise, including, the right to vote or to
receive any payments of dividends on the preferred stock or common stock purchasable
upon exercise.
DESCRIPTION OF UNITS
In this section, we describe the general terms and provisions of the units that we
may offer. We may issue units comprising one or more of the securities described in
this prospectus in any combination. Each unit will be issued so that the holder of the
unit also is the holder of each security included in the unit. Thus, the holder of a
unit will have the rights and obligations of a holder of each included security. The
unit agreement under which a unit is issued may provide that the securities included in
the unit may not be held or transferred separately at any time or at any time before a
specified date.
The applicable prospectus supplement will specify the following terms of any units
in respect of which this prospectus is being delivered:
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the terms of the units and of any of the common stock, preferred stock and
warrants comprising the units, including whether and under what circumstances
the units may be traded separately; |
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a description of the terms of any unit agreement governing the units; |
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a description of the provisions for the payment, settlement, transfer or
exchange of the units or the securities comprising those units; and |
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whether the units will be issued fully registered or in global form. |
The description in the applicable prospectus supplement and other offering
material of any units we offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable unit agreement, which will be filed with
the SEC if we offer units. For more information on how you can obtain copies of the
applicable unit agreement if we offer units, see Where You Can Find More Information.
We urge you to read the applicable unit agreement and the applicable prospectus
supplement and any other offering material in their entirety.
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus to or through one or more
agents, underwriters, dealers or directly to purchasers on a continuous or delayed
basis.
The distribution of the securities may be effected from time to time in one or
more transactions at a fixed price or prices, which may be changed from time to time,
at market prices prevailing at the times of sale, at prices related to such prevailing
market prices or at negotiated prices.
Each time that we use this prospectus to sell our securities, we will also provide
a prospectus supplement. For each series of securities, the applicable prospectus
supplement will set forth the terms of the offering including:
10
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the public offering price; |
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the name or names of any underwriters, dealers or agents; |
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the purchase price of the securities; |
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the proceeds from the sale of the securities to us; |
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any underwriting discounts, agency fees, or other compensation payable to
underwriters or agents; |
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any discounts or concessions allowed or reallowed or repaid to dealers; and |
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the securities exchanges on which the securities will be listed, if any. |
If we use underwriters in the sale of securities, the securities will be acquired
by the underwriters for their own account. The underwriters may then resell the
securities in one or more transactions at a fixed public offering price or at varying
prices determined at the time of sale or thereafter. The securities may be either
offered to the public through underwriting syndicates represented by managing
underwriters, or directly by underwriters. The obligations of the underwriters to
purchase the securities will be subject to certain conditions. The underwriters will be
obligated to purchase all the securities offered if they purchase any securities. The
public offering price and any discounts or concessions allowed or re-allowed or paid to
dealers may be changed from time to time.
If we use dealers in the sale of securities, we will sell securities to such
dealers as principals. The dealers may then resell the securities to the public at
varying prices to be determined by such dealers at the time of resale. We may solicit
offers to purchase the securities directly, and we may sell the securities directly to
institutional or other investors, who may be deemed underwriters within the meaning of
the Securities Act with respect to any resales of those securities. The terms of these
sales will be described in the applicable prospectus supplement. If we use agents in
the sale of securities, unless otherwise indicated in the prospectus supplement, they
will use their reasonable best efforts to solicit purchases for the period of their
appointment. Unless otherwise indicated in a prospectus supplement, if we sell
directly, no underwriters, dealers or agents would be involved. We will not make an
offer of securities in any jurisdiction that does not permit such an offer.
We may grant underwriters who participate in the distribution of securities an
option to purchase additional securities to cover overallotments, if any, in connection
with the distribution. Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in accordance with SEC
orders, rules and regulations and applicable law. To the extent permitted by applicable
law and SEC orders, rules and regulations, an overallotment involves sales in excess of
the offering size, which create a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not exceed a
specified maximum. To the extent permitted by applicable law and SEC orders, rules and
regulations, short covering transactions involve purchases of the common stock in the
open market after the distribution is completed to cover short positions. Penalty bids
permit the underwriters to reclaim a selling concession from a dealer when the common
stock originally sold by the dealer is purchased in a covering transaction to cover
short positions. Those activities may cause the price of the common stock to be higher
than it would otherwise be. If commenced, the underwriters may discontinue any of the
activities at any time.
Any underwriters who are qualified market makers on the NASDAQ Stock Market may
engage in passive market making transactions in the common stock on the NASDAQ Stock
Market in accordance with Rule 103 of Regulation M, during the business day prior to
the pricing of the offering, before the commencement of offers or sales of the common
stock. Passive market makers must comply with applicable volume and price limitations
and must be identified as passive market makers. In general a passive market maker must
display its bid at a price not in excess of the highest independent bid for such
security; if all
11
independent bids are lowered below the passive market makers bid, however, the
passive market makers bid must then be lowered when certain purchase limits are
exceeded.
Underwriters, dealers and agents that participate in any distribution of
securities may be deemed to be underwriters as defined in the Securities Act. Any
discounts, commissions or profit they receive when they resell the securities may be
treated as underwriting discounts and commissions under the Securities Act of 1933.
Only underwriters named in the prospectus supplement are underwriters of the securities
offered in the prospectus supplement. We may have agreements with underwriters, dealers
and agents to indemnify them against certain civil liabilities, including certain
liabilities under the Securities Act, or to contribute with respect to payments that
they may be required to make.
We may authorize underwriters, dealers or agents to solicit offers from certain
institutions whereby the institution contractually agrees to purchase the securities
from us on a future date at a specific price. This type of contract may be made only
with institutions that we specifically approve. Such institutions could include banks,
insurance companies, pension funds, investment companies and educational and charitable
institutions. The underwriters, dealers or agents will not be responsible for the
validity or performance of these contracts.
Each series of securities will be a new issue of securities and will have no
established trading market, other than our common stock, which is listed on The NASDAQ
Global Select Market. Unless otherwise specified in the applicable prospectus
supplement, the securities will not be listed on any exchange. It has not presently
been established whether the underwriters, if any, of the securities will make a market
in the securities. If the underwriters make a market in the securities, such market
making may be discontinued at any time without notice. No assurance can be given as to
the liquidity of the trading market for the securities.
Agents, dealers and underwriters may be entitled to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the agents, dealers or underwriters may be
required to make in respect thereof. Agents, dealers or underwriters may be customers
of, engage in transactions with, or perform services for us and our subsidiaries in the
ordinary course of business.
LEGAL MATTERS
Patton Boggs LLP, Washington, D.C., will pass upon certain legal matters with
respect to the securities offered by us from time to time pursuant to this prospectus,
unless we indicate otherwise in a prospectus supplement. The name of the law firm
advising any underwriters or agents with respect to certain issues relating to any
offering will be set forth in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference
from First Community Bancshares Inc.s Annual Report on Form 10-K for the two years in
the period ended December 31, 2007 have been audited by Dixon Hughes PLLC, independent
registered public accounting firm, and for the year ended December 31, 2005 have been
audited by Ernst & Young LLP, independent registered public accounting firm, as stated
in their respective reports, which are incorporated herein by reference, and have been
so incorporated in reliance upon such reports of such firms given upon their authority
as experts in accounting and auditing.
12
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is a part of a registration statement on Form S-3 filed by us with
the SEC under the Securities Act.
This prospectus does not contain all the information set forth in the registration
statement, certain parts of which are omitted in accordance with the rules and
regulations of the SEC. For further information with respect to us and the securities
offered by this prospectus, reference is made to the registration statement. Statements
contained in this prospectus concerning the provisions of such documents are
necessarily summaries of such documents and each such statement is qualified in its
entirety by reference to the copy of the applicable document filed with the SEC.
We file periodic reports, proxy statements and other information with the SEC. Our
filings with the SEC are available to the public over the Internet at the SECs website
at http://www.sec.gov. Our filings with the SEC are also available to the public on
our website at www.fcbinc.com, as well as through document retrieval services. You may
read and copy any periodic reports, proxy statements or other information we file at
the SECs public reference room in Washington, D.C., which is located at the following
address: Public Reference Room, 100 F Street N.E., Washington, D.C. 20549. You can
request copies of these documents, upon payment of a duplicating fee, by writing to the
SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of
the SECs public reference rooms.
We incorporate by reference into this prospectus the information we file with
the SEC, which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is an important part of
this prospectus and information that we file subsequently with the SEC will
automatically update this prospectus. We incorporate by reference the documents listed
below and any filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of
the Exchange Act, after the initial filing of the registration statement that contains
this prospectus and prior to the time that we sell all the securities offered by this
prospectus, provided, however, that we are not incorporating any information furnished
under either Item 2.02 or Item 7.01 of any Current Report on Form 8-K:
(a) |
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Our Annual Report on Form 10-K for the year ended December 31, 2007, filed on
March 13, 2008. |
(b) |
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Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2008,
filed on May 12, 2008, and our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2008, filed on August 11, 2008. |
(c) |
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Our Current Reports on Form 8-K filed on February 25, 2008; February 20, 2008;
February 26, 2008; May 27, 2008; May 30, 2008; June 4, 2008; July 31, 2008; August 5,
2008; and August 26, 2008. |
(d) |
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Portions of our proxy statement for the annual meeting of stockholders held
on April 29, 2008, that have been incorporated by reference in our 2007 Annual Report
on Form 10-K. |
(e) |
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The description of our common stock contained in our Form 8-A as filed with
the SEC pursuant to Sections 12(b) and 12(g) of the Exchange Act, on May 20, 1991. |
You may request a copy of these filings (other than an exhibit to a filing unless
that exhibit is specifically incorporated by reference into that filing) at no cost, by
writing to or telephoning us at the following address and telephone number:
First Community Bancshares, Inc.
One Community Place
Bluefield, Virginia 24605-0989
Attention: Robert L. Schumacher,
General Counsel
(276) 326-9000
13
You should rely only on the information contained or incorporated by reference in
this prospectus and the applicable prospectus supplement. We have not authorized anyone
else to provide you with additional or different information. We may only use this
prospectus to sell securities if it is accompanied by a prospectus supplement. We are
only offering these securities in states where the offer is permitted. You should not
assume that the information in this prospectus or the applicable prospectus supplement
is accurate as of any date other than the dates on the front of those documents.
14
FIRST COMMUNITY BANCSHARES, INC.
Common Stock
Preferred Stock
Warrants
Units
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses to be incurred in connection with the
issuance and distribution of the securities being registered, other than underwriting discounts and
commissions, all of which will be paid by the Registrant.
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SEC Registration fee |
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$ |
3,930 |
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Legal fees and expenses |
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$ |
120,000 |
* |
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Accounting fees and expenses |
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$ |
17,000 |
* |
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Other |
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$ |
50,000 |
* |
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Total |
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$ |
190,930 |
* |
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Item 15. Indemnification of Directors and Officers.
Nevada law permits a Nevada corporation, such as the Registrant, to indemnify its
directors and officers in certain circumstances. Specifically, Section 78.7502 of the
NRS provides as follows:
Indemnification of directors and officers.
(1) A corporation may 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, except an action by or in
the right of the corporation, by reason of the fact that he is or was a director or
officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director or officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses including
attorneys fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he:
(a) is not liable pursuant to NRS 78.138 or (b) 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. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere, or its
equivalent, does not, of itself, create a presumption that the person is liable
pursuant to NRS 78.138 or did not act in good faith and in a manner which he
reasonable believed to be in or not opposed to the bests interests of the corporation,
or that, with respect to any criminal action or proceedings, he had reasonable cause
to believe that his conduct was unlawful.
(2) A corporation may 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
he is or was a director or officer, employee or agent of the corporation, or is or was
serving at the request of the corporation, or is or was serving at the request of the
corporation as a director or officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses including
amounts paid in settlement and attorneys fees actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit if he (a) is not
liable pursuant to NRS 78.138 or (b) acted in good faith and in a manner which he
reasonably believed to be in or not, opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to which such a
person shall
II-1
have been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable for negligence or misconduct in the performance
of his duty to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which such action or suit was brought
or other court of competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to indemnity
for such expenses which the court shall deem proper.
(3) To the extent that a director or officer of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to in
subsections (1) or (2) of this section, or in the defense of any claim, issue or
matter therein, the corporation shall indemnify him against expenses, including
attorneys fees, actually and reasonably incurred by him in connection therewith.
The Registrants articles of incorporation provide that it will indemnify any of its
directors, officers, employees or agents against expenses (including attorneys fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by
him in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, relating to
service for or at the request of the Registrant. The Registrant will not indemnify a
director, officer, employee or agent if: (A) he did not act in good faith; (B) he did
not reasonably believe that the actions were either (i) in First Communitys best
interests, or (ii) not opposed to the Registrants best interests; or (C) with respect
to a criminal action or proceeding, he had reasonable cause to believe his conduct was
unlawful.
The Registrants articles of incorporation also provide that no director will be
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except that the directors liability will not be
eliminated or limited: (A) for any breach of the directors duty of loyalty to the
Registrant or its stockholders; (B) for acts or omissions involving intentional
misconduct, fraud or a knowing violation of the law; (C) for the payment of any
distribution in violation of Nevada law; or (D) for any transaction from which the
director derived an improper personal benefit.
Item 16. Exhibits
EXHIBIT INDEX
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Exhibit |
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No. |
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Description |
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1.1
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Form of Underwriting Agreement* |
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4.1
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Form of certificate of designation of series of preferred stock* |
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4.2
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Form of securities and warrant agreement* |
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5.1
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Opinion of Patton Boggs LLP |
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8.0
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Opinion as to certain federal income tax matters* |
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23.1
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Consent of Dixon Hughes PLLC |
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23.2
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Consent of Ernst & Young LLP |
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23.3
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Consent of Patton Boggs LLP (included in Exhibit 5.1) |
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Power of Attorney of certain officers and directors (located on the signature page to the Registration Statement) |
_____________
* To be filed,
as applicable, by amendment or as an exhibit to a document incorporated by reference herein for the specific offering of securities, if any, to which it relates.
II-2
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective registration statement; and
(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 (i), (ii) and (iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is contained
in 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, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under the Securities Act of
1933 to any purchaser:
(A) Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing
the information required by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to
which the prospectus relates, and the offering of such securities at that
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time shall be deemed to be the initial bona fide offering thereof; provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of a Registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the securities,
each undersigned Registrant undertakes that in a primary offering of securities of an
undersigned Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications,
the undersigned Registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of an undersigned Registrant
relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on
behalf of an undersigned Registrant or used or referred to by an undersigned
Registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about an undersigned Registrant or its securities
provided by or on behalf of an undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by an
undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the Registrants annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans 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.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of each
Registrant pursuant to the foregoing provisions, or otherwise, each Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a Registrant of expenses incurred
or paid by a director, officer or controlling person of a 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, that 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 Securities Act of
1933 and will be governed by the final adjudication of such issue.
II-4
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-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Commonwealth of Virginia, on September 26, 2008.
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FIRST COMMUNITY BANCSHARES, INC. |
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By:
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/s/ John M. Mendez |
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John M. Mendez
President and Chief Executive Officer |
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed by the following persons in the capacities and on the date indicated. Each person whose
signature appears below, hereby makes, constitutes and appoints John M. Mendez, David D. Brown or
their respective true and lawful attorney, with full power to sign for such person and in such
persons name and capacity indicated below, and with full power of substitution, any and all
amendments, including post-effective amendments, to this Registration Statement, hereby ratifying
and confirming such persons signature as it may be signed by said attorney to any and all
amendments.
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Name |
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Title |
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Date |
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/s/ John M. Mendez
John M. Mendez
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President, Chief Executive Officer and Director
(principal executive officer)
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September 26, 2008 |
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/s/ David D. Brown
David D. Brown
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Chief Financial Officer
(principal financial officer)
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September 26, 2008 |
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Director
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September 26, 2008 |
Franklin P. Hall |
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Director
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September 26, 2008 |
Allen T. Hamner |
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Director
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September 26, 2008 |
I. Norris Kantor |
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Director
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September 26, 2008 |
A.A. Modena |
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/s/ Robert E. Perkinson, Jr.
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Director
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September 26, 2008 |
Robert E. Perkinson, Jr. |
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Director
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September 26, 2008 |
William P. Stafford |
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/s/ William P. Stafford II
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Director
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September 26, 2008 |
William P. Stafford II |
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II-5
EXHIBIT INDEX
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Exhibit |
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No. |
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Description |
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1.1
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Form of Underwriting Agreement* |
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4.1
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Form of certificate of designation of series of preferred stock* |
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4.2
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Form of securities and warrant agreement* |
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5.1
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Opinion of Patton Boggs LLP |
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8.0
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Opinion as to certain federal income tax matters* |
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23.1
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Consent of Dixon Hughes PLLC |
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23.2
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Consent of Ernst & Young LLP |
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23.3
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Consent of Patton Boggs LLP (included in Exhibit 5.1) |
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24
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Power of Attorney of certain officers and directors (located on the signature page to the Registration Statement) |
_____________
* |
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To be filed, as applicable, by amendment or as an exhibit to a document incorporated by reference herein for the specific offering of securities, if any, to which it relates. |
II-6