As filed with the Securities and Exchange Commission on August 8, 2006
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PROVIDENT COMMUNITY BANCSHARES, INC.
(FORMERLY UNION FINANCIAL BANCSHARES, INC.)
(Exact name of registrant as specified in its certificate of incorporation)
DELAWARE 57-1001177
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
203 WEST MAIN STREET
UNION, SOUTH CAROLINA 29379
(864) 427-9000
(Address, including zip code, and telephone
number, including area code, of registrant's principal executive offices)
PROVIDENT COMMUNITY BANCSHARES, INC. 2006 EQUITY INCENTIVE PLAN
(FORMERLY KNOWN AS THE UNION FINANCIAL BANCSHARES, INC.
2006 EQUITY INCENTIVE PLAN)
(Full Title of the Plan)
--------------------------------------
COPIES TO:
DWIGHT V. NEESE PAUL M. AGUGGIA
PRESIDENT AND CHIEF EXECUTIVE OFFICER SCOTT A. BROWN
PROVIDENT COMMUNITY BANCSHARES, INC. MULDOON MURPHY & AGUGGIA LLP
203 WEST MAIN STREET 5101 WISCONSIN AVENUE, N.W.
UNION, SOUTH CAROLINA 29379 WASHINGTON, DC 20016
(864) 427-9000 (202) 362-0840
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Title of each Class of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Per Aggregate Offering Registration
Registered Registered(1) Share(3) Price(4) Fee
- -----------------------------------------------------------------------------------------------------------------
Common Stock
$.01 Par Value 150,000 Shares(2) $18.00 $2,700,000 $289
=================================================================================================================
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Provident Community Bancshares, Inc. 2006 Equity Incentive Plan (the
"Plan") as the result of a stock split, stock dividend or similar
adjustment to the outstanding common stock of Provident Community
Bancshares, Inc. (the "Common Stock") pursuant to 17 C.F.R. Section
230.416(a).
(2) Represents the shares which may be issued upon the vesting or exercise of
awards under the Plan.
(3) The average of the high and low price of the Common Stock as reported on
Nasdaq on August 7, 2006 in accordance with 17 C.F.R. Section 230.457(c).
(4) Estimated solely for the purpose of calculating the registration fee.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED AND 17
C.F.R. SECTON 230.462.
PROVIDENT COMMUNITY BANCSHARES, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The document containing the information for the Provident Community
Bancshares, Inc. 2006 Equity Incentive Plan ("2006 Plan") required by Part I of
the Registration Statement will be sent or given to the participants in the 2006
Plan as specified by Rule 428(b)(1). Said document is not filed with the
Securities and Exchange Commission (the "SEC") either as a part of this
Registration Statement or as a prospectus or prospectus supplement pursuant to
Rule 424, in reliance on Rule 428. Said document and the information
incorporated by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus for the Registration
Statement.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed by Provident Community
Bancshares, Inc. (the "Company" or the "Registrant") with the SEC are
incorporated by reference in this Registration Statement:
(a) The Annual Report on Form 10-K filed by the Company for the
fiscal year ended December 31, 2005, filed with the SEC on
March 21, 2006, which includes the consolidated balance sheets
of the Company and subsidiaries as of December 31, 2005 and
2004, and the related consolidated statements of income,
shareholders' equity and comprehensive income, and cash flows
for each of the periods ended December 31, 2005 and 2004, the
three months ended December 31, 2003 and the year ended
September 30, 2003, together with the related notes and the
report of Elliott Davis, LLC, independent registered public
accounting firm (SEC File No. 001-5735).
(b) The Quarterly Report on Form 10-Q filed by the Company for
the quarter ended March 31, 2006 filed with the SEC on May 12,
2006 (SEC File No.001-5735).
(c) The description of the Registrant's Common Stock contained in
the Registrant's Form 8-A (File No. 1-5735) as filed with the
SEC pursuant to Section 12(g) of the Securities Exchange Act
of 1934 and Rule 12b-15 promulgated thereunder.
(d) The Current Reports on Form 8-K filed by the Registrant with
the SEC on July 19, 2006, April 20, 2006 and April 19, 2006
(in each case other than those portions furnished under Item
2.02, 7.01, or 9.01 of Form 8-K).
(e) All documents filed by the Registrant pursuant to Sections
13(a) and (c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") except items 2.02, 7.01
and 9.01 filed under Form 8-K, after the date hereof and prior
to the filing of a post-effective amendment which deregisters
all securities then remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR IN A
DOCUMENT INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN, SHALL BE
DEEMED TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS REGISTRATION STATEMENT
TO THE EXTENT THAT A STATEMENT CONTAINED HEREIN, OR IN ANY OTHER SUBSEQUENTLY
FILED DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY
REFERENCE HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO
MODIFIED OR SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED,
TO CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
2
ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the 2006 Plan has been
registered pursuant to Section 12 of the Exchange Act. Accordingly, a
description of the common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
The validity of the Common Stock offered hereby has been passed upon by
Muldoon Murphy & Aguggia LLP, Washington, DC, for the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law ("DGCL"), inter
alia, empowers a Delaware 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 such person 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, or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person's conduct was
unlawful. Similar indemnity is authorized for such person against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of any such threatened, pending or completed action or
suit if such person 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 provided
further that (unless a court of competent jurisdiction otherwise provides) such
person shall not have been adjudged liable to the corporation. Any such
indemnification may be made only as authorized in each specific case upon a
determination by the shareholders or disinterested directors or by independent
legal counsel in a written opinion that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Any such indemnification and advancement of expenses provided under
Section 145 shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of such person's
heirs, executors and administrators.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him, and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
In accordance with the DGCL (being Chapter 1 of Title 8 of the Delaware
Code), Articles 15 and 16 of the Registrant's Certificate of Incorporation
provide for the indemnification of directors, officers, and other employees as
described below:
3
Article XV. Indemnification
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A. Persons. The Corporation shall indemnify, to the extent provided
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in paragraphs B, D or F:
1. any person who is or was a director, officer, employee, of
the Corporation; and
2. any person who serves or served at the Corporation's
request as a director, officer, employee, agent, partner or trustee of another
corporation, partnership, joint venture, trust or other enterprise.
B. Extent - Derivative Suits. In case of a threatened, pending or
-------------------------
completed action or suit by or in the right of the Corporation against a person
named in paragraph A by reason of his holding a position named in paragraph A,
the Corporation shall indemnify him if he satisfies the standard in paragraph C,
for expenses (including attorneys' fees but excluding amounts paid in
settlement) actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit.
C. Standard - Derivative Suits. In case of a threatened, pending or
---------------------------
completed action or suit by or in the right of the Corporation, a person named
in paragraph A shall be indemnified only if:
1. he is successful on the merits or otherwise; or
2. he acted in good faith in the transaction which is the
subject of the suit or action, and in a manner he reasonably believed to be in,
or not opposed to, the best interest of the Corporation, including, but not
limited to, the taking of any and all actions in connection with the
Corporation's response to any tender offer or any offer or proposal of another
party to engage in a Business Combination (as defined in Article XV) not
approved by the board of directors. However, he shall not be indemnified in
respect of any claim, issue or matter as to which he has been adjudged liable to
the Corporation unless (and only to the extent that) the court in which the suit
was brought shall determine, upon application, that despite the adjudication but
in view of all the circumstances, he is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
D. Extent - Nonderivative Suits. In case of a threatened, pending
----------------------------
or completed suit, action or proceeding (whether civil, criminal, administrative
or investigative), other than a suit by or in the right of the Corporation,
together hereafter referred to as a nonderivative suit, against a person named
in paragraph A by reason of his holding a position named in paragraph A, the
Corporation shall indemnify him if he satisfies the standard in paragraph E, for
amounts actually and reasonably incurred by him in connection with the defense
or settlement of the nonderivative suit, including, but not limited to (i)
expenses (including attorneys' fees), (ii) amounts paid in settlement, (iii)
judgments, and (iv) fines.
E. Standard - Nonderivative Suits. In case of a nonderivative suit,
------------------------------
a person named in paragraph A shall be indemnified only if:
1. he is successful on the merits or otherwise; or
2. he acted in good faith in the transaction which is the
subject of the nonderivative suit and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the Corporation, including, but not
limited to, the taking of any and all actions in connection with the
Corporation's response to any tender offer or any offer or proposal of another
party to engage in a Business Combination (as defined in Article XV of this
Certificate) not approved by the board of directors and, with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. The termination of a nonderivative suit by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
---- ----------
shall not, in itself, create a presumption that the person failed to satisfy the
standard of this paragraph E.2.
4
F. Determination That Standard Has Been Met. A determination that
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the standard of paragraph C or E has been satisfied may be made by a court, or,
except as stated in paragraph C.2 (second sentence), the determination may be
made by:
1. the board of directors by a majority vote of a quorum
consisting of directors of the Corporation who were not parties to the action,
suit or proceeding; or
2. independent legal counsel (appointed by a majority of the
disinterested directors of the Corporation, whether or not a quorum) in a
written opinion; or
3. the stockholders of the Corporation.
G. Proration. Anyone making a determination under paragraph F may
---------
determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
H. Advance Payment. The Corporation may pay in advance any expenses
---------------
(including attorneys' fees) which may become subject to indemnification under
paragraphs A through G if (i) the board of directors authorizes the specific
payment; and (ii) the person receiving the payment undertakes in writing to
repay the same if it is ultimately determined that he is not entitled to
indemnification by the Corporation under paragraphs A through G.
I. Nonexclusive. The indemnification and advance of expenses
------------
provided by paragraphs A through H shall not be exclusive of any other rights to
which a person may be entitled by law, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
J. Continuation. The indemnification provided by this Article XVII
------------
shall be deemed to be a contract between the Corporation and the persons
entitled to indemnification thereunder, and any repeal or modification of this
Article XVII shall not affect any rights or obligations then existing with
respect to any state of facts then or theretofore existing or any action, suit
or proceeding theretofore or thereafter brought based in whole or in part upon
any such state of facts. The indemnification and advance payment provided by
paragraphs A through H shall continue as to a person who has ceased to hold a
position named in paragraph A and shall inure to his heirs, executors and
administrators.
K. Insurance. The Corporation may purchase and maintain insurance
---------
on behalf of any person who holds or who has held any position named in
paragraph A, against any liability incurred by him in any such position, or
arising out of his status as such, whether or not the Corporation would have
power to indemnify him against such liability under paragraphs A through H.
L. Savings Clause. If this Article XVII or any portion hereof shall
--------------
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee, and
agent of the Corporation as to costs, charges, and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the Corporation to the
full extent permitted by any applicable portion of this Article XVII that shall
not have been invalidated and to the full extent permitted by applicable law.
5
Article XVI. Elimination of Directors' Liability
- --------------------------------------------------
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except: (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or omissions not made in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which a director derived an improper
personal benefit. If the General Corporation Law of the State of Delaware is
amended after the date of filing of this Certificate to further eliminate or
limit the personal liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the General Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. LIST OF EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-K):
5 Opinion of Muldoon Murphy & Aguggia LLP, Washington, DC, as to
the legality of the Common Stock registered hereby.
10.1 Provident Community Bancshares, Inc. 2006 Equity Incentive
Plan.(1) (formerly known as the Union Financial Bancshares, Inc.
2006 Equity Incentive Plan)
10.2 Form of Award Agreements
23.1 Consent of Muldoon Murphy & Aguggia LLP (contained in the
opinion included as Exhibit 5).
23.2 Consent of Elliott Davis, LLC.
24 Power of Attorney is located on the signature pages.
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:
- ------------------------------
(1) Incorporated by reference herein to Appendix A of the Provident Community
Bancshares, Inc. Definitive Proxy Statement on Schedule 14A filed with the SEC
on March 20, 2006 (SEC File No. 001-5735).
6
(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 Securities and Exchange
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 (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed or
furnished to the Securities and Exchange Commission by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this 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 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial BONA FIDE offering
thereof.
(c)-(g) Not applicable.
7
(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 Securities Act of 1933 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 Securities Act of
1933 and will be governed by the final adjudication of such
issue.
(i)-(l) Not applicable.
8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Provident
Community Bancshares, Inc. hereby 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 Union, State of South
Carolina, on August 8, 2006.
PROVIDENT COMMUNITY BANCSHARES, INC.
By: /s/ Dwight V. Neese
-----------------------------------------------
Dwight V. Neese
Director, President and Chief Executive Officer
(Principal Executive Officer)
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 dates indicated.
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Neese) constitutes and appoints Dwight V. Neese, and Mr.
Neese constitutes and appoints Carl L. Mason, as the true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to the Form S-8 Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
U.S. Securities and Exchange Commission, respectively, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and things requisite and necessary to be done 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 substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Name Title Date
- ---- ----- ----
/s/ Carl L. Mason Chairman of the Board August 8, 2006
- -----------------------------
Carl L. Mason
/s/ Dwight V. Neese Director, President and Chief August 8, 2006
- ----------------------------- Executive Officer (Principal
Dwight V. Neese Executive Officer)
/s/ Richard H. Flake Executive Vice President August 8, 2006
- ----------------------------- and Chief Financial Officer
Richard H. Flake (Principal Financial and
Accounting Officer)
/s/ Robert H. Breakfield Director August 8, 2006
- -----------------------------
Robert H. Breakfield
9
/s/ James W. Edwards Director August 8, 2006
- -----------------------------
James W. Edwards
/s/ William M. Graham Director August 8, 2006
- -----------------------------
William M. Graham
/s/ Louis M. Jordan Director August 8, 2006
- -----------------------------
Louis M. Jordan
/s/ Philip C. Wilkins Director August 8, 2006
- -----------------------------
Philip C. Wilkins
10
EXHIBIT INDEX
-------------
SEQUENTIALLY
NUMBERED
PAGE
EXHIBIT NO. DESCRIPTION METHOD OF FILING LOCATION
- ------------- ---------------------------------------------- -------------------------------- --------------
5 Opinion of Muldoon Murphy & Aguggia LLP Filed herewith.
10.1 Provident Community Bancshares, Inc. 2006 Incorporated by Reference.
Equity Incentive Plan (formerly known as the
Union Financial Bancshares, Inc. 2006 Equity
Incentive Plan)
10.2 Form of Award Agreements Filed herewith.
23.1 Consent of Muldoon Murphy & Aguggia LLP Contained in Exhibit 5 hereof.
23.2 Consent of Elliott Davis, LLC Filed herewith.
24 Power of Attorney Located on the signature page.