As filed with the Securities and Exchange Commission on August 7, 2003
Registration No. 333-_______
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
WESBANCO, INC.
(Exact name of registrant as specified in its charter)
West Virginia 55-0571723
(State or other jurisdiction of (I.R.S.Employer Identification No.)
incorportion or organization)
One Bank Plaza
Wheeling, West Virginia 26003
(Address of principal executive offi (Zip Code)
WESBANCO, INC.
KEY EXECUTIVE
INCENTIVE BONUS & OPTION PLAN
(Full title of the plan)
Paul M. Limbert
President and Chief Executive Officer
One Bank Plaza
Wheeling, WV 26003
(Name and address of agent for service)
(304) 234-9000
(Telephone number, including area code, of agent for service)
With Copies To:
James C. Gardill, Esquire J. Robert Van Kirk, Esquire
Phillips, Gardill, Kaiser & Altmeyer, PLLC Kirkpatrick & Lockhart LLP
61 Fourteenth Street Henry W. Oliver Building
Wheeling, WV 26003 535 Smithfield Street
(304) 232-6810 Pittsburgh, PA 15222
(412) 355-6500
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
Title of Proposed maximum Proposed maximum Amount of
securities Amount to be offering price aggregate registration
to be registered registered per share(1) offering price(1) fee
--------------------------------------------------------------------------------------------------------------------------
Common Stock, $2.0833 par 1,000,000 $24.20 $24,200,000 $1,957.80
value per share
==========================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) and Rule 457(c) under the Securities Act of 1933, as
amended. The fee is calculated on the basis of the average of the high and low
prices for the Registrant's Common Stock, $2.0833 par value per share ("Common
Stock"), reported on the NASDAQ Stock Market on August 5, 2003.
--------------------------------------------------------------------------------
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated by reference into
this Registration Statement: (i) the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 2002 (File No. 000-08467); (ii) the
Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2003;
(iii) the Registrant's Current Reports on Form 8-K filed on April 18, 2003,
April 22, 2003, July 1, 2003 and July 18, 2003; and (iv) the description of the
Registrant's Common Stock contained in the Registrant's Registration Statement
on Form 8-A filed on May 2, 1977, as amended on June 10, 1977.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement, but prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered by this Registration Statement have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement. Each document incorporated by
reference into this Registration Statement shall be deemed to be a part of this
Registration Statement from the date of filing of such document with the
Commission until the information contained therein is superseded or updated by
any subsequently filed document which is incorporated by reference into this
Registration Statement or by any document which constitutes part of the
prospectus relating to the WesBanco, Inc. Key Executive Incentive Bonus & Option
Plan (the "Plan") meeting the requirements of Section 10(a) of the Securities
Act of 1933, as amended.
Item 4. Description of Securities.
The shares of Common Stock to be offered under this Registration
Statement are registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
James C. Gardill is Chairman of the Board of Directors of the
Registrant and a partner at the law firm of Phillips, Gardill, Kaiser &
Altmeyer, PLLC, which regularly renders legal services to the Registrant. Mr.
Gardill rendered a legal opinion as to the legality of the shares of the
Registrant's Common Stock being registered under this Registration Statement,
which is attached to this Registration as Exhibit 5.1. As Chairman of the Board,
Mr. Gardill participates in the WesBanco, Inc. and Affiliate Banks Directors
Deferred Compensation Plan and owns 55,376 shares of the Registrant's Common
Stock.
Item 6. Indemnification of Directors and Officers.
The Registrant's Bylaws provide, and West Virginia law permits (W. Va.
Code ss.31D-8-851 et. seq.), the indemnification of directors, officers and
controlling stockholders against certain liabilities. Officers and directors of
the Registrant and its subsidiaries are indemnified generally against expenses
reasonably incurred in connection with proceedings in which they are made
parties by reason of their being or having been directors or officers of the
corporation, except (i) in relation to matters as to which a recovery may be
obtained by reason
II-1
of an officer or director having been finally adjudged derelict in such action
or proceeding in the performance of his duties or (ii) for liabilities or legal
expenses arising out of any administrative proceeding brought by the appropriate
federal banking agency resulting in a final order or settlement in which the
officer or director is assessed a civil monetary penalty, removed or prohibited
from banking, or required to cease an action or take any affirmative action,
including making restitution, with respect to the Registrant.
A. Article VI of the Bylaws of the Registrant contains the following
indemnification provisions:
Indemnification of Directors and Officers
Section 1. Each Director and officer, whether or not then in office,
shall be indemnified by the corporation against all costs and expenses
reasonably incurred by and imposed upon him in connection with or resulting from
any action, suit or proceeding, to which he may be made a party by reason of his
being or having been a director or officer of the corporation, or of any other
company which he served at the request of the corporation, except in relation to
matters as to which a recovery shall be had against him by reason of his having
been finally adjudged derelict in such action, suit or proceeding, in that
performance of his duties as such Director or officer, and the foregoing right
of indemnification shall not be exclusive of other rights to which he may be
entitled as a matter of law.
Section 2. Notwithstanding the provisions of Section 1 of this Article
VI, an "institution-affiliated party" may not receive a "prohibited
indemnification payment" which is defined as any payment or agreement to make a
payment by the corporation to an institution-affiliated party to pay or
reimburse such person for any liability or legal expenses in any administrative
proceeding brought by the appropriate federal banking agency that results in a
final order or settlement in which the institution- affiliated party is assessed
a civil money penalty, is removed or prohibited from banking, or is required to
cease an action or take any affirmative action, including making restitution,
with respect to the corporation.
Section 3. The corporation may purchase commercial insurance to cover
certain costs that the corporation incurs under the indemnification provisions
of Section 1 of this Article VI. Costs that may be covered include legal
expenses and restitution that an individual may be ordered to make to the
corporation. Such insurance may not, however, pay or reimburse an
institution-affiliated party for any final judgment or civil money penalty
assessed against such individual.
Section 4. The corporation may make or agree to make a reasonable
indemnification payment if all of the following conditions are met: (i) the
corporation's board of directors determines in writing that the
institution-affiliated party acted in good faith and the best interests of the
corporation; (ii) the board of directors determines that the payment will not
materially affect the corporation's safety and soundness; (iii) the payment does
not fall within the definition of a prohibited indemnification payment; and (iv)
the institution-affiliated party agrees in writing to reimburse the corporation,
to the extent not covered by permissible insurance, for payments made in the
event that the administrative action results in a final order or settlement in
which the institution-affiliated party is assessed a civil money penalty, is
removed or prohibited from banking, or is required, under a final order, to
cease an action or take any affirmative action.
For purposes of Article VI, the term " institution-affiliated party" includes
any officer, director, employee and controlling stockholder, as well as others
that participate in the affairs of the Registrant.
B. West Virginia Corporation Law, W. Va. Code s.s. 31D-8-851 through
31D-8-856 provides:
ss.31D-8-851. Permissible indemnification.
(a) Except as otherwise provided in this section, a corporation may
indemnify an individual who is a party to a proceeding because he or she is a
director against liability incurred in the proceeding if:
II-2
(1) (A) He or she conducted himself or herself in good faith;
and
(B) He or she reasonably believed: (i) In the case of
conduct in his or her official capacity, that his or her conduct was in the best
interests of the corporation; and (ii) in all other cases, that his or her
conduct was at least not opposed to the best interests of the corporation; and
(C) In the case of any criminal proceeding, he or she had no
reasonable cause to believe his or her conduct was unlawful; or
(2) He or she engaged in conduct for which broader
indemnification has been made permissible or obligatory under a provision of the
articles of incorporation as authorized by subdivision (5), subsection (b),
section two hundred two, article two of this chapter.
(b) A director's conduct with respect to an employee benefit plan for
a purpose he or she reasonably believed to be in the interests of the
participants in, and the beneficiaries of, the plan is conduct that satisfies
the requirement of subparagraph (ii), paragraph (B), subdivision (1), subsection
(a) of this section.
(c) The termination of a proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, is not
determinative that the director did not meet the relevant standard of conduct
described in this section.
(d) Unless ordered by a court under subdivision (3), subsection (a),
section eight hundred fifty-four of this article, a corporation may not
indemnify a director:
(1) In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection with the
proceeding if it is determined that the director has met the relevant standard
of conduct under subsection (a) of this section; or
(2) In connection with any proceeding with respect to conduct for
which he or she was adjudged liable on the basis that he or she received a
financial benefit to which he or she was not entitled, whether or not involving
action in his or her official capacity.
ss.31D-8-852. Mandatory Indemnification.
A corporation must indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which he or she was a
party because he or she was a director of the corporation against reasonable
expenses incurred by him or her in connection with the proceeding.
ss.31D-8-853. Advance for expenses.
(a) A corporation may, before final disposition of a proceeding,
advance funds to pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding because he or she is a director if he or
she delivers to the corporation:
(1) A written affirmation of his or her good faith belief that he
or she has met the relevant standard of conduct described in section eight
hundred fifty-one of this article or that the proceeding involves conduct for
which liability has been eliminated under a provision of the articles of
incorporation as authorized by subdivision (4), subsection (b), section two
hundred two, article two of this chapter; and
II-3
(2) His or her written undertaking to repay any funds advanced if
he or she is not entitled to mandatory indemnification under section eight
hundred fifty-two of this article and it is ultimately determined under section
eight hundred fifty-four or eight hundred fifty-five of this article that he or
she has not met the relevant standard of conduct described in section eight
hundred fifty-one of this article.
(b) The undertaking required by subdivision (2), subsection (a) of
this section must be an unlimited general obligation of the director but need
not be secured and may be accepted without reference to the financial ability of
the director to make repayment.
(c) Authorizations under this section are to be made:
(1) By the board of directors:
(A) If there are two or more disinterested directors, by a
majority vote of all the disinterested directors, a majority of whom constitute
a quorum for this purpose, or by a majority of the members of a committee of two
or more disinterested directors appointed by a vote; or
(B) If there are fewer than two disinterested directors, by
the vote necessary for action by the board in accordance with subsection (c),
section eight hundred twenty-four of this article in which authorization
directors who do not qualify as disinterested directors may participate; or
(2) By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested
director may not be voted on the authorization; or
(3) By special legal counsel selected in a manner in accordance
with subdivision (2), subsection (b), section eight hundred fifty-five of this
article.
ss.31D-8-854. Circuit court-ordered indemnification and advance for expenses.
(a) A director who is a party to a proceeding because he or she is a
director may apply for indemnification or an advance for expenses to the circuit
court conducting the proceeding or to another circuit court of competent
jurisdiction. After receipt of an application and after giving any notice it
considers necessary, the circuit court shall:
(1) Order indemnification if the circuit court determines that
the director is entitled to mandatory indemnification under section eight
hundred fifty-two of this article;
(2) Order indemnification or advance for expenses if the circuit
court determines that the director is entitled to indemnification or advance for
expenses pursuant to a provision authorized by subsection (a), section eight
hundred fifty-eight of this article; or
(3) Order indemnification or advance for expenses if the circuit
court determines, in view of all the relevant circumstances, that it is fair and
reasonable:
(A) To indemnify the director; or
(B) To advance expenses to the director, even if he or she
has not met the relevant standard of conduct set forth in subsection (a),
section eight hundred fifty-one of this article, failed to comply with section
eight hundred fifty-three of this article or was adjudged liable in a proceeding
referred to in subdivision
II-4
(1) or (2), subsection (d), section eight hundred fifty-one of this article, but
if he or she was adjudged so liable his or her indemnification is to be limited
to reasonable expenses incurred in connection with the proceeding.
(b) If the circuit court determines that the director is entitled to
indemnification under subdivision (1), subsection (a) of this section or to
indemnification or advance for expenses under subdivision (2) of said
subsection, it shall also order the corporation to pay the director's reasonable
expenses incurred in connection with obtaining circuit court-ordered
indemnification or advance for expenses. If the circuit court determines that
the director is entitled to indemnification or advance for expenses under
subdivision (3) of said subsection, it may also order the corporation to pay the
director's reasonable expenses to obtain circuit court-ordered indemnification
or advance for expenses.
ss.31D-8-855. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under section eight
hundred fifty-one of this article unless authorized for a specific proceeding
after a determination has been made that indemnification of the director is
permissible because he or she has met the relevant standard of conduct set forth
in section eight hundred fifty-one of this article.
(b) The determination is to be made:
(1) If there are two or more disinterested directors, by the
board of directors by a majority vote of all the disinterested directors, a
majority of whom constitute a quorum for this purpose, or by a majority of the
members of a committee of two or more disinterested directors appointed by a
vote;
(2) By special legal counsel:
(A) Selected in the manner prescribed in subdivision (1) of
this subsection; or
(B) If there are fewer than two disinterested directors,
selected by the board of directors in which selection directors who do not
qualify as disinterested directors may participate; or
(3) By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested
director may not be voted on the determination.
(c) Authorization of indemnification is to be made in the same manner
as the determination that indemnification is permissible, except that if there
are fewer than two disinterested directors or if the determination is made by
special legal counsel, authorization of indemnification is to be made by those
entitled under paragraph (B), subdivision (2), subsection (b) of this section to
select special legal counsel.
ss.31D-8-856. Indemnification of officers.
(a) A corporation may indemnify and advance expenses under this part
to an officer of the corporation who is a party to a proceeding because he or
she is an officer of the corporation:
(1) To the same extent as a director; and
(2) If he or she is an officer but not a director, to a further
extent as may be provided by the articles of incorporation, the bylaws, a
resolution of the board of directors or contract except for:
(A) Liability in connection with a proceeding by or in the
right of the corporation other than for reasonable expenses incurred in
connection with the proceeding; or
II-5
(B) Liability arising out of conduct that constitutes:
(i) Receipt by him or her of a financial benefit to
which he or she is not entitled;
(ii) An intentional infliction of harm on the
corporation or the shareholders; or
(iii) An intentional violation of criminal law.
(b) The provisions of subdivision (2), subsection (a) of this section
apply to an officer who is also a director if the basis on which he or she is
made a party to the proceeding is an act or omission solely as an officer.
(c) An officer of a corporation who is not a director is entitled to
mandatory indemnification under section eight hundred fifty-two of this article
and may apply to a court under section eight hundred fifty-four of this article
for indemnification or an advance for expenses in each case to the same extent
to which a director may be entitled to indemnification or advance for expenses
under those provisions.
Certain rules of the Federal Deposit Insurance Corporation limit the
ability of certain depository institutions, their subsidiaries and their
affiliated depository institution holding companies to indemnify affiliated
parties, including institution directors. In general, subject to the ability to
purchase directors' and officers' liability insurance and to advance
professional expenses under certain circumstances, the rules prohibit such
institutions from indemnifying a director for certain costs incurred with regard
to an administrative or enforcement action commenced by any federal banking
agency that results in a final order or settlement pursuant to which the
director is assessed a civil money penalty, removed from office, prohibited from
participating in the affairs of an insured depository institution or required to
cease and desist from or take an affirmative action described in Section 8(b) of
the Federal Deposit Insurance Act (12 U.S.C. $ 1818(b)).
Wesbanco does provide indemnity insurance to its officers and directors.
Such insurance will not, however, indemnify officers or directors for willful
misconduct or gross negligence in the performance of a duty to Wesbanco.
Item 7. Exemption from Registration Claimed.
None.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated by reference
as part of this Registration Statement:
Exhibit No. Description
----------- -----------
4.1 Restated Articles of Incorporation of WesBanco, Inc.
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-4 filed with the Securities and
Exchange Commission on May 16, 1996 (File No. 333-03905)).
II-6
4.2 Articles of Amendment to the Articles of Incorporation of
WesBanco, Inc. (incorporated by reference to Exhibit 3 to the
Registrant's Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission on May 15, 1998 (File No.
000-08467)).
4.3 Amended and Restated By-laws of WesBanco, Inc. (incorporated by
reference to Exhibit 3.1 to the Registrant's Quarterly Report on
Form 10-Q filed with the Securities and Exchange Commission on
November 14, 2002 (File No. 000-08467)).
5.1 Opinion of James C. Gardill, Esquire, of Phillips, Gardill,
Kaiser & Altmeyer, PLLC, regarding the legality of the shares
being registered hereunder (filed herewith).
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of James C. Gardill, Esquire of Phillips, Gardill, Kaiser
& Altmeyer, PLLC (included in the Opinion filed as Exhibit 5.1).
24.1 Power of Attorney (set forth 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 of 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;
(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;
(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;
(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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section
II-7
15(d) of the Exchange Act 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.
* * *
(h) Insofar as indemnification for liabilities arising under the
Securities Act 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 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 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 and will be governed by the final
adjudication of such issue.
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Wheeling, State of West Virginia, on this 7th day of
August, 2003.
WESBANCO, INC.
By: /s/ Paul M. Limbert
-------------------------------------
Paul M. Limbert
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert H. Young his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documentation in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent with full power and authority to do and perform
each and every act and thing requisite and necessary to be done in or about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date(s) indicated:
Signature Capacity Date
--------- -------- ----
/s/ James E. Altmeyer Director August 7, 2003
--------------------------------------------
James E. Altmeyer
/s/ Ray A. Byrd Director August 6, 2003
--------------------------------------------
Ray A. Byrd
/s/ R. Peterson Chalfant Director August 6, 2003
--------------------------------------------
R. Peterson Chalfant
/s/ John H. Cheffy Director August 6, 2003
--------------------------------------------
John H. Cheffy
/s/ Christopher V. Criss Director August 6, 2003
--------------------------------------------
Christopher V. Criss
II-9
Signature Capacity Date
--------- -------- ----
/s/ James D. Entress Director August 7, 2003
--------------------------------------------
James D. Entress
Director
--------------------------------------------
Abigail M. Feinknopf
/s/ Ernest S. Fragale Director August 6, 2003
--------------------------------------------
Ernest S. Fragale
/s/ James C. Gardill Chairman, Director August 6, 2003
--------------------------------------------
James C. Gardill
/s/ Edward M. George Director August 6, 2003
--------------------------------------------
Edward M. George
/s/ Roland L. Hobbs Director August 6, 2003
--------------------------------------------
Roland L. Hobbs
/s/ John W. Kepner Director August 6, 2003
--------------------------------------------
John W. Kepner
/s/ Paul M. Limbert President and Chief Executive Of August 6, 2003
-------------------------------------------- (Principal Executive Officer)
Paul M. Limbert
Director
--------------------------------------------
Jay T. McCamic
Director
--------------------------------------------
William E. Mildren, Jr.
/s/ Joan C. Stamp Director August 6, 2003
--------------------------------------------
Joan C. Stamp
/s/ Carter W. Strauss Director August 6, 2003
--------------------------------------------
Carter W. Strauss
Director
--------------------------------------------
Reed J. Tanner
/s/ Robert K. Tebay Director August 6, 2003
--------------------------------------------
Robert K. Tebay
/s/ Robert H. Young Executive Vice President and Chief August 6, 2003
-------------------------------------------- Financial Officer (Principal Financial and
Robert H. Young Accounting Officer)
II-10