As filed with the Securities and Exchange Commission on August 5, 1999
Registration No.33-_____
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 Identification No.)
Incorporation or Organization)
403 Boush Street
Norfolk, Virginia 23510
(Address of Principal Executive Office) (Zip Code)
Commonwealth Bankshares, Inc.
1999 Stock Incentive Option Plan
(Full Title of the Plan)
Jody M. Wagner, Esq.
Kaufman & Canoles
P. O. Box 3037
Norfolk, VA 23514-3037
(Name and Address of Agent for Service)
(757) 624-3294
(Telephone Number, Including
Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee(1)
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Common Stock,
$2.50 par value 225,000 $10.00 $2,250,000 $607.50
(1)Pursuant to rules 457(h), the registration fee was computed using $10.00 per
share of Common Stock, which is the exercise price on granted shares.
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Exhibit Index can be found on page 3.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
AND NOT REQUIRED IN PROSPECTUS
Item 3: Incorporation of Documents by Reference.
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The following documents of Commonwealth Bankshares, Inc., a Virginia corporation
(the "Company"), filed with the Securities and Exchange Commission (the
"Commission"), are incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB, for the Company's fiscal
year ended December 31, 1998 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "1934 Act").
(b) All reports filed by the Company pursuant to Section 13(a) of the 1934
Act since the end of the Company's fiscal year ended December 31, 1998.
(c) The description of the Company's Common Stock registered under the
1934 Act contained in the Company's Registration Statement on Form 8-B (File No.
0-19492), which became effective in December 1988.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the 1934 since the Company's fiscal
year ended December 31, 1998.
Any statement contained in a document incorporated in this Registration
Statement by reference shall be deemed to be modified or superseded for the
purposes of this Registration Statement to the extent that a statement contained
in this Registration Statement or in any other subsequently filed document which
also is or is deemed to be incorporated in this Registration Statement by
reference modifies or replaces such statement.
Item 4: Description of Securities.
--------------------------
Not applicable.
Item 5: Interests of the Named Experts and Counsel.
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Not applicable.
Item 6: Indemnification of Directors and Officers.
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Section 13.1-692.1 of the Virginia Stock Corporation Act (the "Act") provides
that in any proceeding brought by or in the right of a corporation or brought by
or on behalf of shareholders of the corporation, the damages assessed against an
officer or director arising out of a single transaction, occurrence or course of
conduct shall not exceed the lesser of (1) the monetary amount, including the
elimination of liability, specified in the articles of incorporation or, if
approved by the shareholders, in the bylaws as a limitation on or elimination of
the liability of the officer or director, or (2) the greater of (i) $100,000 or
(ii) the amount of cash compensation received by the officer or director from
the corporation during the 12 months immediately preceding the act or omission
for which liability was imposed. The liability of an officer or director may not
be limited under this section of the Act if the officer or director engaged in
willful misconduct or a knowing violation of the criminal law or of any federal
or state securities law, including, without limitation, any claim of unlawful
insider trading or manipulation of the market for any security.
2
Section 13.1-697 of the Act authorizes a Virginia corporation to indemnify an
individual made a party to a proceeding because he is or was a director against
liability incurred in the proceeding. A Virginia corporation may not indemnify a
director under this section in connection with a proceeding by or in the right
of the corporation in which the director was adjudged liable to the corporation
or in connection with any other proceeding charging improper personal benefit to
him, whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received by
him. Section 13.1-698 provides that, unless limited by its Articles of
Incorporation, a Virginia corporation must indemnify a director who entirely
prevails in the defense of any proceeding to which he was a party because he is
or was a director of the corporation against reasonable expenses incurred by him
in connection with the proceeding. Section 13.1-702 of the Act authorizes a
Virginia corporation to indemnify its officers, employees or agents to the same
extent as directors.
The Company's Articles of Incorporation provide that to the full extent that the
Act permits the limitation or elimination of the liability of directors or
officers, a director or officer of the Company shall not be liable to the
Company or its shareholders for monetary damages. The Company's Articles of
Incorporation also provide that to the full extent permitted and in the manner
prescribed by the Act and any other applicable law, the Company shall indemnify
a director or officer of the Company who is or was a party to any proceeding by
reason of the fact that he is or was such a director or officer or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise. Any aforesaid reference to directors, officers, employees
or agents includes former directors, officers, employees and agents and their
respective heirs, executors and administrators.
Officers and directors of the Company are covered by insurance that (with
certain exceptions and within certain limitations) indemnifies them against
losses and liabilities arising from an alleged "harmful act," including any
alleged error or misstatement or misleading statement or wrongful act or
omission or neglect or breach of duty.
Item 7: Exemption from Registration Claimed.
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Not applicable.
Item 8: Exhibits.
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Number Description
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4.1 1999 Stock Incentive Plan
4.2 1990 Stock Option Plan, as amended
4.3 Non-Employee Director Stock Compensation Plan. Filed on
March 30, 1996 as exhibit 10.13 to the Registrant's Form
10-K, and incorporated herein by reference
4.4 Amendment to the Non-Employee Director Stock Compensation Plan
5 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)
24 Power of Attorney (included on the signature page of this
Registration Statement)
Item 9: Undertakings.
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(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
3
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.
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 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 Norfolk, Commonwealth of Virginia, on July 29, 1999.
COMMONWEALTH BANKSHARES, INC.
By: /s/ EDWARD J. WOODARD, JR.
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Edward J. Woodard, Jr., Chairman of
the Board & Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person in so signing, also makes,
constitutes and appoints Edward J. Woodard, Jr., and Richard J. Tavss, and each
of them individually, his true and lawful attorney-in-fact in this place and
stead, to execute and cause to be filed with the Securities and Exchange
Commission any and all amendments to this Registration Statement.
Signature
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/s/ EDWARD J. WOODARD, JR.
- ----------------------------------------- July 29, 1999
Edward J. Woodard, Jr., Chairman of the
Board & Chief Executive Officer
/s/ JOHN H. GAYLE
- ----------------------------------------- July 29, 1999
John H. Gayle, Executive Vice President,
Cashier and Chief Financial Officer
/s/ GEORGE H. BURTON, JR.
- ----------------------------------------- July 29, 1999
George H. Burton, Jr., Director
/s/ MORTON GOLDMEIER
- ----------------------------------------- July 29, 1999
Morton Goldmeier, Director
/s/ WILLIAM P. KELLAM
- ----------------------------------------- July 29, 1999
William P. Kellam, Director
/s/ THOMAS W. MOSS, JR.
- ----------------------------------------- July 29, 1999
Thomas W. Moss, Jr., Director
/s/ WILLIAM D. PAYNE
- ----------------------------------------- July 29, 1999
William D. Payne, M.D., Director
/s/ HERBERT L. PERLIN
- ----------------------------------------- July 29, 1999
Herbert L. Perlin, Director
/s/ RICHARD J. TAVSS
- ----------------------------------------- July 29, 1999
Richard J. Tavss, Director
/s/ KENNETH J. YOUNG
- ----------------------------------------- July 29, 1999
Kenneth J. Young, Director
/s/ MORTON M. ZEDD
- ----------------------------------------- July 29, 1999
Morton M. Zedd, Director
EXHIBIT INDEX
The following exhibits are filed herewith unless otherwise indicated:
Sequential
Page
Number Description Number
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**4.1 1999 Stock Incentive Plan E-1
**4.2 1990 Stock Option Plan, as amended E-17
*4.3 Non-Employee Director Stock Compensation Plan. Filed on March E-40
30, 1996 as exhibit 10.13 to the Registrant's Form 10-K, and
incorporated herein by reference
**4.4 Amendment to the Non-Employee Director Stock Compensation Plan E-41
**5.1 Opinion of Kaufman & Canoles, P.C. E-42
**23.1 Consent of Poti, Walton & Associates, P.C. E-43
**23.2 Consent of Kaufman & Canoles, P.C. (contained in Exhibit 5)
**24 Power of Attorney (included on the signature page of this
Registration Statement)
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* Not filed herewith. In Accordance with Rule 12b-32 of the General Rules and
Regulations under the Securities Exchange Act of 1934, the exhibit is
incorporated by reference.
** Filed herewith.