As filed with the Securities and Exchange Commission on February 1, 2002
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Commonwealth Bankshares, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Virginia 54-1460991
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
403 Boush Street
Norfolk, Virginia 23510
(Address of Principal Executive Office) (Zip Code)
Bank of the Commonwealth
Directors' Deferred Compensation Plan
Bank of the Commonwealth
Supplemental Executive Retirement Plan
(Full Title of the Plan)
T. Richard Litton, Jr., Esq.
Kaufman & Canoles
P. O. Box 3037
Norfolk, VA 23514-3037
(Name and Address of Agent for Service)
(757) 624-3241
(Telephone Number, Including
Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
============================ =============== ================= ================== ==============
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Obligation Price Fee
- ---------------------------- --------------- ----------------- ------------------ --------------
Deferred(1) Compensation
Obligations $1,500,000(2) 100% $1,500,000 $138
(1) The Deferred Compensation Obligations are unsecured obligations of
Commonwealth Bankshares, Inc. to pay deferred compensation in the future in
accordance with the terms of the Bank of the Commonwealth Directors'
Deferred Compensation Plan and Bank of the Commonwealth Supplemental
Executive Retirement Plan.
(2) Estimated solely for the purpose of calculating the registration fee. Such
estimate has been computed in accordance with Rule 457(h) and is based upon
an estimate of the amount of compensation to be deferred by participants.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
AND NOT REQUIRED IN PROSPECTUS
Item 3: Incorporation of Documents by Reference.
---------------------------------------
The following documents previously filed by the Registrant with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934 (the "Exchange Act") are incorporated herein by reference and made a part
hereof:
(1) The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 2000, File No. 000-17377;
(2) The Registrant's Quarterly Report on Form 10-QSB for the quarters
ended March 31, 2001, June 30, 2001 and September 30, 2001, File No.
000-17377; and
(3) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-B, File No. 000-17377.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein 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 or is deemed to be incorporated by reference herein
modifies or supersedes such earlier 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.
Item 4: Description of Securities.
-------------------------
The Registrant is a holding company and its principal assets are its
operating subsidiaries. One such operating subsidiary is the Bank of the
Commonwealth, a Virginia corporation (the "Bank Subsidiary"). The securities
being registered are deferred compensation obligations ("Deferred Compensation
Obligations") of the Bank Subsidiary under the Bank of the Commonwealth
Directors' Deferred Compensation Plan (the "Directors' Plan") and the Bank of
the Commonwealth Supplemental Executive Retirement Plan (the "SERP") (sometimes
referred to collectively as the "Plans"). The following description of the
Deferred Compensation Obligations is qualified in its entirety by reference to
the complete text of the Plans set forth as Exhibits 4.1 and 4.2 to this
Registration Statement. Capitalized terms used in this Item 4 and not otherwise
defined in this Registration Statement shall have the respective meanings
attributed to such terms in the Plans, or, to the extent that a Capitalized term
has a meaning attributed to it by only one of the Plans, in such Plan.
The Deferred Compensation Obligations incurred by the Bank Subsidiary under
the Plans are unsecured general obligations of the Bank Subsidiary, and will
rank equally with other unsecured and unsubordinated indebtedness of the Bank
Subsidiary outstanding from time to time. Pursuant to Revenue Procedure 92-64,
I.R.B. 1992-33, the Bank Subsidiary has adopted an irrevocable grantor rabbi
trust as a method of establishing a fund with which to satisfy the Bank
Subsidiary's Deferred Compensation Obligations. For purposes of the Employee
Retirement Income Security Act of 1974, the adoption and maintenance of the
rabbi trust does not cause the Plans to be considered funded.
2
Under the Directors' Plan, the Bank Subsidiary will provide its directors
with the opportunity to elect to defer part or all of the director's Fees
payable to such directors during any Plan Year. Under the SERP, the Bank
Subsidiary will provide the select group of executives the opportunity to elect
to defer part or all of the Compensation and Bonuses payable to such executives
during any Plan Year; provided however, that an executive may not be permitted
to defer an amount of his Compensation and/or Bonus which, after deferrals to
this Plan, would reduce the executive's Compensation and/or Bonus to an amount
that is less than the maximum amount of earnings subject to employment taxes.
The Bank Subsidiary will establish an Account under each Plan for each director
and executive, as applicable, who elects to participate in such Plan. A
Participant may designate a fixed dollar amount or a percentage to be deducted
from his or her Fee (if a director) or Compensation and/or Bonus (if an
executive) ("Deferral Contribution") and shall indicate how the Deferral
Contribution in the Participant's Account is to be deemed invested as between
the Bank Stock Fund and the Interest Bearing Fund. Each Participant's Account
shall be further sub-divided, as appropriate, into an Interest Bearing Account
and a Bank Stock Account.
All Deferral Contribution amounts that are deemed invested in the Interest
Bearing Fund are credited for interest in the same manner under both Plans, with
one variation. Under the SERP, as of each Valuation Date (March 31st, June 30th,
September 30th, and December 31st), the Bank will credit to the Participant's
Interest Bearing Account an amount for interest earned, calculated at a rate
equal to the five-year U.S. Treasury Bill rate that was in effect on the
immediately preceding Valuation Date. Under the Directors' Plan, the Deferral
Contribution amount deemed invested in the Interest Bearing Fund is treated the
same as described above, with the exception that for Deferral Contribution
amounts credited to the Participant's Interest Bearing Account prior to January
1, 1992, the Bank will credit, as of each Valuation Date, an amount for interest
earned, calculated at the highest rate of interest which the Bank Subsidiary has
paid or accrued on any savings or time account during the calendar quarter
ending on such Valuation Date. In all cases, and in both Plans, the interest
earned will be calculated utilizing a 360 day year and utilizing the aggregate
Account balance of each Participant that is deemed to be invested in the
Interest Bearing Fund, including all prior accruals of interest.
All Deferral Contribution amounts deemed invested in the Bank Stock Fund
shall be credited to the Participant's Bank Stock Account on the date when the
Deferral amount would otherwise be paid to the Participant. All Deferral
Contribution amounts deemed to be invested in the Bank Stock Fund shall be
credited to the Participant's Bank Stock Account in units or fractional units.
Dividends paid on Bank Stock shall also be deemed invested in Bank Stock and
shall be credited to the Participant's Bank Stock Account in units or fractional
units on the date when the dividend would otherwise be paid to the Participant.
The value of each unit shall be determined on each Valuation Date and will be
equal to the fair market value of one share of Bank Stock on such Valuation
Date. The value of each partial unit shall be determined each Valuation Date
pro-rata with reference to the value of each unit as determined each Valuation
Date. On each date that Deferral or dividend amounts are credited to the
Participant's Bank Stock Account, the number of units to be credited shall be
determined by dividing the amount of such Deferral or dividend amounts by the
value of a unit as of the Valuation Date coinciding with or immediately
preceding such crediting date. If there is any change in the number or class of
shares of Bank Stock through the declaration of a stock dividend or other
extraordinary dividends, or recapitalization resulting in stock splits, or
combinations or exchanges of such shares or in the event of similar
transactions, the units in each Participant's Account shall be equitably
adjusted to reflect any such change in the number or class of issued shares of
Bank Stock or to reflect such similar transaction.
The amounts deferred by Participants under the Plans represent an
obligation of the Bank Subsidiary to make payments to the Participants at some
time in the future. The amount that the Bank Subsidiary is required to pay to
any Participant under the terms of the Plan is equal to the Deferral
Contributions made by the Participant, as adjusted for the deemed investment
gains or losses attributable to the such Deferral Contributions in shares of the
Registrant's common stock or the deemed investment interest as provided for
above. The Participant's Account will reflect the Deferral Contributions and the
adjustments made thereto.
The amounts payable to Participants under the Plan are distributed in
accordance with the distribution provisions of the Plan. Generally, such
distributions are available at retirement age, death, or on account of
disability. In addition, a Participant who separates from service with the Bank
Subsidiary other than on account of
3
retirement, death, or disability, is entitled to receive distributions upon
attainment of age 65 (unless he or she dies or becomes disabled in the meantime,
in which case benefits would be payable pursuant to the Plan terms regarding
such distributions). Payment may also be made in certain situations following a
Change in Control. Payment of benefits is made generally in the form of
installment payments, although payment in lump sum is available in limited
situations. The Bank Subsidiary is entitled to withhold all federal, state and
local income, employment and other taxes required to be withheld by the Bank
Subsidiary in connection with payments to be made to Participants under the
Plans.
Each Participant is at all times 100% vested in all Deferral Contributions,
as well as in any appreciation (or depreciation) in the amount thereof due to
appreciation or depreciation in the Registrant's common stock or the
appreciation resulting from credited interest. However, the Participant shall
forfeit all amounts in his or her Account if the Participant is terminated for
Cause. Such forfeitures will revert to and become part of the Bank Subsidiary's
general unrestricted assets.
The Bank Subsidiary reserves the right to amend or terminate the Plan,
provided that any such amendment does not decrease or restrict the value of a
Participant's account balance under the Plan in existence at the time the
amendment is made.
Item 5: Interests of the Named Experts and Counsel.
------------------------------------------
Not applicable.
Item 6: Indemnification of Directors and Officers.
-----------------------------------------
Article 10 of Chapter 9 of Title 13.1 of the Code of Virginia (the "Code")
permits a Virginia corporation to indemnify any director or officer for
reasonable expenses incurred in any legal proceeding in advance of final
disposition of the proceeding, if the director or officer furnishes the
corporation a written statement of his good faith belief that he or she has met
the standard of conduct prescribed by the Code, and a determination is made by
the board of directors that such standard has been met. In a proceeding by or in
the right of the corporation, no indemnification shall be made in respect of any
matter as to which an officer or director is adjudged to be liable to the
corporation, unless the court in which the proceeding took place determines
that, despite such liability, such person is reasonably entitled to
indemnification in view of all of the relevant circumstances. In any other
proceeding, no indemnification shall be made if the director or officer is
adjudged liable to the corporation on the basis that personal benefit was
improperly received by him. Corporations are given the power to make any other
or further indemnity, including advance of expenses, to any director or officer
that may be authorized by the articles of incorporation or any bylaw made by the
shareholders, or any resolution adopted, before or after the event, by the
shareholders, except an indemnity against willful misconduct or a knowing
violation of the criminal law. Unless limited by its articles of incorporation,
indemnification of a director or officer is mandatory when he or she entirely
prevails in the defense of any proceeding to which he or she is a party because
he or she is or was a director or officer.
The Articles of Incorporation of the Registrant contain provisions
indemnifying the directors and officers of the Registrant to the full extent
permitted by Virginia law. In addition, the Articles of Incorporation of the
Registrant eliminate the personal liability of the Registrant's directors and
officers to the Registrant or its shareholders for monetary damages to the full
extent permitted by Virginia law.
Item 7: Exemption from Registration Claimed.
-----------------------------------
Not applicable.
4
Item 8: Exhibits.
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Number Description
------ -----------
4.1 Bank of the Commonwealth Directors' Deferred Compensation Plan.
4.2 Bank of the Commonwealth Supplemental Executive Retirement Plan.
5.1 Opinion of Kaufman & Canoles, P.C.
23.1 Consent of Poti, Walton & Associates, P.C.
23.2 Consent of Kaufman & Canoles, P.C. (contained in Exhibit 5.1)
24 Power of Attorney (included on the signature page of this
Registration Statement)
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 to include
any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change
to such information in 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; and
(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 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 that is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein; and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Norfolk, Commonwealth of Virginia, on February 1, 2002.
COMMONWEALTH BANKSHARES, INC.
By: /s/ Edward J. Woodard, Jr.
-------------------------------------
Edward J. Woodard, Jr., CLBB
President and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints E. J. Woodard, Jr. and John H.
Gayle as attorneys and agents for the undersigned, with full power of
substitution, for and in the name, place and stead of the undersigned, to sign
and file with the Securities and Exchange Commission under the Securities Act of
1933, as amended, any and all amendments and exhibits to the registration
statement and any and all applications, instruments and other documents to be
filed with the Securities and Exchange Commission pertaining to the registration
of securities covered hereby with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Edward J. Woodard, Jr. President, Chief Executive February 1, 2002
- ---------------------------- Officer and Director
Edward J. Woodard, Jr. (Principal Executive Officer)
/s/ John H. Gayle Executive Vice President and February 1, 2002
- ---------------------------- Cashier (Principal Financial
John H. Gayle Officer)
/s/ E. Carlton Baxter Director February 1, 2002
- ----------------------------
E. Carlton Baxter
/s/ Laurence C. Fentriss Director February 1, 2002
- ----------------------------
Laurence C. Fentriss
/s/ Morton Goldmeier Director February 1, 2002
- ----------------------------
Morton Goldmeier
/s/ William P. Kellam Director February 1, 2002
- ----------------------------
William P. Kellam
/s/ Thomas W. Moss, Jr. Director February 1, 2002
- ----------------------------
Thomas W. Moss, Jr.
/s/ William D. Payne, M.D. Director February 1, 2002
- ----------------------------
William D. Payne, M.D.
/s/ Herbert L. Perlin Director February 1, 2002
- ----------------------------
Herbert L. Perlin
/s/ Richard J. Tavss Director February 1, 2002
- ----------------------------
Richard J. Tavss
/s/ Kenneth J. Young Director February 1, 2002
- ----------------------------
Kenneth J. Young
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
Exhibit
Number Description of Exhibit
- --------------------------------------------------------------------------------
*4.1 Bank of the Commonwealth Directors' Deferred Compensation Plan.
*4.2 Bank of the Commonwealth Supplemental Executive Retirement Plan.
*5.1 Opinion of Kaufman & Canoles, P.C.
*23.1 Consent of Poti, Walton & Associates, P.C.
*23.2 Consent of Kaufman & Canoles, P.C. (contained in Exhibit 5.1)
*24 Power of Attorney (included on the signature page of this
Registration Statement)
- --------------------------------------------------------------------------------
* Filed herewith.