s8-92269_fbnc.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
Form
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_____________________
FIRST
BANCORP
(Exact
name of registrant, as specified in its charter)
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North
Carolina
(State
or other jurisdiction of
incorporation
or organization)
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56-1421916
(I.R.S.
Employer)
Identification
No.)
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341 North Main Street, P.O.
Box 508, Troy, North Carolina 27371-0508
(Address
of Principal Executive Offices)
_____________________
FIRST
BANCORP/GREAT PEE DEE BANCORP, INC. 1998 STOCK OPTION PLAN
(Full
Title of the Plan)
_____________________
Jerry L
Ocheltree
President
and Chief Executive Officer
341 North
Main Street
Post
Office Box 508
Troy,
North Carolina 27371-0508
(Name and
Address of Agent For Service)
(910)
576-6171
(Telephone
Number, Including Area Code, of Agent For Service)
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):
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Large
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer o
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Smaller
reporting company o
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(Do
not check if a smaller reporting company)
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_____________________
Copy
to:
Henry H.
Ralston, Esq.
Robinson,
Bradshaw & Hinson, P.A.
101 North
Tryon Street
Suite
1900
Charlotte,
North Carolina 28246
(704)
378-4000
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities
To
Be Registered
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Amount
To Be
Registered
(1)
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Proposed
Maximum
Offering
Price Per
Unit
(2)
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Proposed
Maximum
Aggregate
Offering
Price
(3)
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Amount
Of
Registration
Fee
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Common
Stock, no par value,
issuable
under the First
Bancorp/Great
Pee Dee
Bancorp,
Inc. 1998 Stock
Option
Plan
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88,415
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$14.40
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$1,273,176
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$51.00
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(1) Represents
the number of unexercised options outstanding under the plan, which was assumed
in connection with the merger of Great Pee Dee Bancorp, Inc. into the
Registrant, multiplied by an exchange ratio of 1.15 as set forth in the merger
agreement for such merger. Pursuant to Rule 416 under the Securities
Act of 1933, this registration statement also relates to an indeterminate number
of additional shares of Common Stock issuable with respect to the shares
registered hereunder in the event of a stock split, stock dividend or other
similar transaction.
(2) Represents
the weighted average exercise price of all unexercised options outstanding under
the plan assumed in connection with the merger of Great Pee Dee Bancorp, Inc.
into the Registrant, divided by the exchange ratio of 1.15 as set forth in the
merger agreement for such merger.
(3) Estimated
solely for the purpose of calculating the registration fee in accordance with
Rule 457(h) of the Securities Act of 1933, pursuant to which shares subject to
outstanding options are deemed to be offered at the weighted average price at
which such options may be exercised.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents are incorporated by reference into this registration
statement:
(a) the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2007;
(b) the
Company’s Current Reports on Form 8-K filed on January 29, 2008, March 3, 2008,
April 2, 2008, and April 7, 2008; and
(c) the
description of the Company’s common stock, no par value per share, contained in
the Company’s registration statement on Form S-4 filed with the Commission on
October 12, 2007 and Amendment No. 1 thereto filed with the Commission on
February 5, 2008 pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) including any amendment or report filed for the
purpose of updating such descriptions.
All
documents subsequently filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered by this Registration Statement have
been sold or that deregisters all securities then remaining unsold shall be
deemed incorporated by reference into this Registration Statement to be a part
hereof from the date of the filing of such documents.
Any
statement contained in the documents 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 that also is, or is 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.
Item
5. Interests of Named Experts And Counsel.
Robinson,
Bradshaw & Hinson, P.A., Charlotte, North Carolina, will give an opinion
about the legality of the securities registered by this Registration
Statement. As of March 31, 2008, members of Robinson, Bradshaw &
Hinson, P.A. beneficially owned less than 1% of the Company’s common
stock.
Item
6. Indemnification of Directors and Officers.
Section
55-2-02 of the North Carolina Business Corporation Act (the “Business
Corporation Act”) enables a corporation in its articles of incorporation to
eliminate or limit, with certain exceptions, the personal liability of a
director for monetary damages for breach of duty as a director. No
such provision is effective to eliminate or limit a director’s liability for (i)
acts or omissions that the director at the time of the breach knew or believed
to be clearly in conflict with the best interests of the corporation, (ii)
improper distributions as described in Section 55-8-33 of the Business
Corporation Act, (iii) any transaction from which the director derived an
improper personal benefit or (iv) acts or omissions occurring prior to the
date the exculpatory provision became effective. The Company’s
articles of incorporation, as amended, limit the personal liability of its
directors to the fullest extent permitted by the
Business
Corporation Act, as amended from time to time. Any repeal or
modification of this provision by the Company’s shareholders will not adversely
affect any limitation on the personal liability of a director of the Company
existing at the time of the repeal or modification.
Sections
55-8-50 through 55-8-58 of the Business Corporation Act permit a corporation to
indemnify its directors, officers, employees or agents under either or both a
statutory or nonstatutory scheme of indemnification. Under the
statutory scheme, a corporation may, with certain exceptions, indemnify a
director of the corporation who was, is, or is threatened to be made, a party to
any threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative, or investigative because of the fact that such
person was or is a director of the corporation, or is or was serving at the
request of such corporation as a director of another corporation or
enterprise. This indemnity may include the obligation to pay any
judgment, settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan) or reasonable expenses incurred in
connection with a proceeding (including counsel fees), but no such
indemnification may be granted unless such director (i) conducted himself in
good faith, (ii) reasonably believed (a) that any action taken in his official
capacity with the corporation was in the best interests of the corporation or
(b) that in all other cases his conduct was not opposed to the corporation’s
best interests, and (iii) in the case of any criminal proceeding, had no
reasonable cause to believe his conduct was unlawful. Whether a
director has met the requisite standard of conduct for the type of
indemnification set forth above is determined by a majority vote of a quorum of
the board of directors (excluding any director party to the proceeding at
question), a committee of directors, special legal counsel or the shareholders
in accordance with Section 55-8-55 of the Business Corporation
Act. Under the statutory scheme, a corporation may not indemnify a
director 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 in which the director was adjudged liable on the basis
of having received an improper personal benefit. Pursuant to Section
55-8-56 of the Business Corporation Act, a corporation may also indemnify
officers, employees or agents under this statutory scheme.
Sections
55-8-52 and 55-8-56 of the Business Corporation Act require a corporation,
unless its articles of incorporation provide otherwise, to indemnify a director
or officer who has been wholly successful, on the merits or otherwise, in the
defense of any proceeding to which such director or officer was, or was
threatened to be, made a party because he is or was a director or officer of the
corporation. Unless prohibited by the articles of incorporation, a
director or officer also may make application and obtain court-ordered
indemnification if the court determines that such director or officer is
entitled to mandatory indemnification under Section 55-8-52 of the Business
Corporation Act or is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances.
In
addition to, and notwithstanding the conditions of and limitations on, the
indemnification described above under the statutory scheme, Section 55-8-57 of
the Business Corporation Act permits a corporation, in its articles of
incorporation or bylaws, by contract or by resolution, to indemnify, or agree to
indemnify, any of its directors, officers, employees or agents against liability
and expenses (including counsel fees) in any proceeding (including proceedings
brought by or on behalf of the corporation) arising out of their status as such
or their activities in such capacities, except for any liabilities or expenses
incurred on account of activities that were, at the time taken, known or
believed by the person to be clearly in conflict with the best interests of the
corporation.
In
addition, Section 55-8-57 of the Business Corporation Act authorizes a
corporation to purchase and maintain insurance on behalf of an individual who is
or was a director, officer, employee or agent of the corporation against certain
liabilities incurred by such a person, whether or not the corporation is
otherwise authorized by the Business Corporation Act to indemnify that
person. The
Company
has purchased and maintains such insurance.
The
Company’s amended and restated bylaws provide that the Company shall indemnify,
to the fullest extent permitted by law, any person who at any time serves or has
served as a director, officer, employee or agent of the Company against
reasonable expenses (including attorneys’ fees) incurred or reasonable payments
made in connection with any pending, threatened or completed civil, criminal,
administrative or investigative action, suit or proceeding, whether or not
brought by or on behalf of the Company, by reason of the fact that he is or was
a director, officer, employee or agent of the Company or serves or served any
other enterprise as a director, officer, employee or agent at the request of the
Company. The rights of any director or officer include advancement of
expenses to the fullest extent permitted by law from time to
time. The amended and restated bylaws provide that the right of
indemnification is not exclusive of other rights to which such person may be
entitled, and that the right inures to the legal representatives of such
person. The Company also has separate indemnification agreements with
various current and past directors and officers.
Item
8. Exhibits.
See the
Exhibit Index.
Item
9. Undertakings.
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(a)
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The
Company hereby undertakes:
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(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(i)
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to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933, as amended (the “Securities
Act”);
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(ii)
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to
reflect in the prospectus any facts or events arising after the effective
date of this Registration Statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this 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 a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement;
and
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(iii)
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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;
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provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or
furnished
to the Commission by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated
by reference in this Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, 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
Company hereby undertakes that, for purposes of determining any liability under
the Securities Act, each filing of the Company’s annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona
fide offering thereof.
(c) The
Company hereby undertakes that insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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 and will be governed by
the final adjudication of such issue.
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-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Troy, State of North Carolina on this 22nd day of April, 2008.
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FIRST
BANCORP
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(Registrant)
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By:
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/s/ Jerry
L. Ocheltree
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Jerry
L. Ocheltree
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President
and Chief Executive Officer
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POWER OF
ATTORNEY
Each
of the undersigned hereby constitutes and appoints Jerry L. Ocheltree, Anna G.
Hollers and Eric P. Credle, and each of them, with full power to act without the
other and with full power of substitution and resubstitution, his true and
lawful attorneys-in-fact and agents, for him and in his name, place, and stead,
in any and all capacities, to sign on his behalf any and all amendments
(including post-effective amendments and amendments thereto) to this
registration statement and any related registration statement (and any
amendments thereto) filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
and grants unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises as fully as to all intents and
purposes as he might or could do in person, and hereby ratifies and confirms all
that such attorneys-in-fact or agents, or any of them, or their substitutes
shall lawfully do or cause to be done by virtue hereof.
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.
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Signature
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Title
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Date
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/s/
Jerry L. Ocheltree
Jerry
L. Ocheltree
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President,
Chief Executive Officer, Treasurer and Director
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April
22, 2008
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/s/
Anna G. Hollers
Anna
G. Hollers
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Executive
Vice President, Chief Operating Officer and Secretary
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April
22, 2008
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/s/
Eric P. Credle
Eric
P. Credle
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Executive
Vice President and Chief Financial Officer
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April
22, 2008
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/s/
Jack D. Briggs
Jack
D. Briggs
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Director
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April
22, 2008
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/s/
R. Walton Brown
R.
Walton Brown
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Director
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April
22, 2008
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/s/
David L. Burns
David
L. Burns
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Director
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April
22, 2008
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/s/
John F. Burns
John
F. Burns
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Director
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April
22, 2008
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/s/
Mary Clara Capel
Mary
Clara Capel
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Director
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April
22, 2008
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/s/
James C. Crawford, III
James
C. Crawford, III
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Director
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April
22, 2008
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/s/
James G. Hudson, Jr.
James
G. Hudson, Jr.
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Director
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April
22, 2008
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/s/
George R. Perkins, Jr.
George
R. Perkins, Jr.
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Director
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April
22, 2008
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/s/
Thomas F. Phillips
Thomas
F. Phillips
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Director
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April
22, 2008
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/s/
Frederick L. Taylor II
Frederick
L. Taylor II
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Director
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April
22, 2008
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/s/
Virginia C. Thomasson
Virginia
C. Thomasson
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Director
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April
22, 2008
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/s/
Goldie H. Wallace
Goldie
H. Wallace
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Director
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April
22, 2008
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/s/
A. Jordan Washburn
A.
Jordan Washburn
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Director
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April
22, 2008
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/s/
Dennis A. Wicker
Dennis
A. Wicker
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Director
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April
22, 2008
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/s/
John C. Willis
John
C. Willis
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Director
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April
22, 2008
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EXHIBIT
INDEX
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EXHIBIT
NO.
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DESCRIPTION
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4.1
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Form
of Common Stock Certificate filed as Exhibit 4 to the Company’s Quarterly
Report on Form 10-Q for the quarter ended June 30, 1999, is incorporated
herein by reference
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5.1*
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Opinion
of Robinson, Bradshaw & Hinson, P.A.
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23.1*
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Consent
of Robinson, Bradshaw & Hinson, P.A. (included in Exhibit
5.1)
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23.2*
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Consent
of Elliott Davis, PLLC
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*Filed
herewith
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