-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VdOCWncguT+r4Wx7VX+PQd2wOd7AzE37sqaYgbt5T6bLdXaq05nMnOIR6NYI2SyC rs6TqPlxEjZKvPCQVbtFuA== 0001002105-98-000068.txt : 19980504 0001002105-98-000068.hdr.sgml : 19980504 ACCESSION NUMBER: 0001002105-98-000068 CONFORMED SUBMISSION TYPE: 8-A12G PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980430 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: INDEPENDENT COMMUNITY BANKSHARES INC CENTRAL INDEX KEY: 0000914138 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 541696103 STATE OF INCORPORATION: VA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12G SEC ACT: SEC FILE NUMBER: 000-24159 FILM NUMBER: 98606343 BUSINESS ADDRESS: STREET 1: 111 W WASHINGTON ST STREET 2: C/O MIDDLEBURG BANK CITY: MIDDLEBURG STATE: VA ZIP: 22117 BUSINESS PHONE: 5406876377 MAIL ADDRESS: STREET 1: 111 WEST WASHINGTON STREET STREET 2: C/O MIDDLEBURG BANK CITY: MIDDLEBURG STATE: VA ZIP: 22117 8-A12G 1 8-A - INDEPENDENT COMMUNITY BANKSHARES, INC. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------- FORM 8-A FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 INDEPENDENT COMMUNITY BANKSHARES, INC. (Exact Name of Registrant as Specified in Its Charter) Virginia 54-1696103 (State of Incorporation or Organization) (I.R.S. Employer Identification No.) 111 West Washington Street Middleburg, Virginia 20117 (Address of Principal Executive Offices) (Zip Code) If this form relates to the If this form relates to the registration of a class of securities registration of a class of securities pursuant to Section 12(b) of the pursuant to Section 12(g) of the Exchange Act and is effective Exchange Act and is effective pursuant to General Instruction pursuant to General Instruction A.(c), please check the following A.(d), please check the following box. [ ] box. [X] Securities Act registration statement file number to which this form relates: n/a (If applicable) -------------- Securities to be registered pursuant to Section 12(b) of the Act: Title of Each Class Name of Each Exchange on Which to be so Registered Each Class is to be Registered none none Securities to be registered pursuant to Section 12(g) of the Act: Common Stock, par value $5.00 per share (Title of Class) INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 1. Description of Registrant's Securities to be Registered. The following summary description of the capital stock of the Registrant is qualified in its entirety by reference to applicable provisions of Virginia law and the Registrant's Articles of Incorporation and Bylaws, which are exhibits to this registration statement. Common Stock Authorized Common Stock. The Registrant's Articles of Incorporation authorize the issuance of 10,000,000 shares of the Registrant's common stock, par value $5.00 per share (the "Common Stock"), without further shareholder approval. The Registrant's Articles of Incorporation do not authorize the issuance of shares of preferred stock. Dividend Rights. Holders of Common Stock are entitled to receive dividends when and as declared by the Registrant's Board of Directors from funds legally available for the payment of dividends. Voting Rights. The holders of Common Stock are entitled to one vote per share on all matters submitted to a vote of shareholders. Holders of Common Stock are not entitled to cumulative voting rights. Therefore, the holders of a majority of the shares voted in the election of directors can elect all of the directors then standing for election subject to the rights of preferred stock, if and when issued. Liquidation Rights. Upon any liquidation, dissolution or winding up of the affairs of the Registrant, holders of Common Stock are entitled to receive pro rata all of the assets of the Registrant available for distribution to shareholders. Preemptive, Conversion and Redemption Rights. Holders of Common Stock have no preemptive or other preferential rights to purchase or subscribe to shares of Common Stock, and there are no conversion rights or redemption or sinking fund provisions with respect to the Common Stock. Size and Classification of Board of Directors The Registrant's Bylaws provide for a board of directors consisting of 14 individuals. Directors are elected annually to serve until their successors are elected and qualified. Vacancies and Removal of Directors Under the Registrant's Articles of Incorporation, vacancies occurring in the Board of Directors, including vacancies created by newly created directorships resulting from an increase in the number of directors, may be filled only by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum, until the next election of directors by shareholders. The Registrant's Articles of Incorporation allow for the removal of directors from office, with or without cause, if at least 75% of the votes cast are cast in favor of removal. -2- Shareholders of the Registrant may not call a special meeting for the purpose of removing a director. Director Liability and Indemnification The Virginia Stock Corporation Act (the "Virginia SCA") 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 may 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 (a) $100,000 or (b) 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 is not limited under the Virginia SCA or a corporation's articles of incorporation and bylaws 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. The Registrant's Articles of Incorporation provide that, to the full extent that Virginia law permits the limitation or elimination of the liability of directors and officers, they will not be liable to the Registrant or its shareholders for any money damages in excess of one dollar. To the full extent permitted by Virginia law, the Registrant's Articles of Incorporation require it to indemnify any director or officer of the Registrant who is made a party to any proceeding because he is or was a director or officer of the Registrant against any liability, including reasonable expenses and legal fees, incurred in the proceeding. Under the Registrant's Articles of Incorporation, "proceeding" is broadly defined to include threatened, pending or completed actions of all types, including actions by or in the right of the Registrant. Similarly, "liability" is defined to include not only judgments, but also settlements, penalties, fines and certain excise taxes. The Registrant's Articles of Incorporation also provide that the Registrant may, but is not obligated to, indemnify its other employees or agents. The Registrant must indemnify any person who is or was serving at the written request of the Registrant as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, to the full extent permitted by Virginia law. The indemnification provisions also require the Registrant to pay reasonable expenses incurred by a director or officer of the Registrant in a proceeding in advance of the final disposition of any such proceeding, provided that the indemnified person undertakes to repay the Registrant if it is ultimately determined that such person was not entitled to indemnification. Virginia law does not permit indemnification against willful misconduct or a knowing violation of the criminal law. The rights of indemnification provided in the Registrant's Articles of Incorporation are not exclusive of any other rights that may be available under any insurance or other agreement, by vote of shareholders or disinterested directors or otherwise. In addition, the Articles of Incorporation authorize the Registrant to maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Registrant, whether or not the Registrant would have the power to provide indemnification to such person. The rights of indemnification provided to directors could reduce the likelihood of shareholder derivative actions and may discourage other third party claims against the directors, even if such actions otherwise would be beneficial to shareholders. -3- Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the Securities and Exchange Commission (the "Commission"), such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. Special Meetings of Shareholders The Registrant's Bylaws provide that special meetings of shareholders may be held whenever called by the President or the Chairman of the Board of Directors or by the Board of Directors itself, which means that the shareholders of the Registrant do not have the right to call special meetings. Director Nominations and Shareholder Proposals Under the Registrant's Bylaws, notice of a proposed nomination for any meeting of shareholders called for the election of directors, or notice of a shareholder proposal for an annual meeting of shareholders fulfilling certain specified requirements, must be received by the Registrant not less than 60 nor more than 90 days prior to any meeting of shareholders called for the election of directors, provided in each case that, if fewer than 70 days' notice of the meeting is given to shareholders, such written notice must be received not later than the close of business on the tenth day following the day on which notice of the meeting was mailed to shareholders. The Registrant's Bylaws require that the shareholder's notice set forth as to each nominee (i) the name, age, business address and residence address of such nominee, (ii) the principal occupation or employment of such nominee, (iii) the class and number of shares that are beneficially owned by such nominee, and (iv) any other information relating to such nominee that is required under federal securities laws to be disclosed in solicitations of proxies for the election of directors, or is otherwise required (including, without limitation, such nominee's written consent to being named in a proxy statement as nominee and to serving as a director if elected). The Registrant's Bylaws further require that the shareholder's notice set forth as to the shareholder giving the notice (i) the name and address of such shareholder and (ii) the class and amount of such shareholder's beneficial ownership of the Registrant's capital stock. If the information supplied by the shareholder is deficient in any material aspect or if the foregoing procedure is not followed, the chairman of the meeting may determine that such shareholder's nomination should not be brought before the meeting, and the defective nomination shall be disregarded. The advance notice procedure of the Registrant's Bylaws affords the Board of Directors the opportunity to consider the qualifications of the proposed nominees and to inform shareholders about such qualifications. Although such procedure does not give the Board of Directors any power to approve or disapprove of shareholder nominations for election of directors, it may have the effect of precluding surprise nominations and a contest for the election of directors if such procedure established by it is not followed. Furthermore, such procedure may discourage or deter a third party from conducting a solicitation of proxies to elect its own slate of directors. The Registrant's Bylaws require that the shareholder's notice of any shareholder proposal to be presented at an annual meeting of shareholders must set forth as to each such shareholder proposal (a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (b) the name and address, as -4- they appear on the Registrant's books, of the shareholder proposing such business, (c) the class and number of shares of the Registrant that are beneficially owned by the shareholder and (d) any material interest of such shareholder in such proposal. If the information supplied by shareholder is deficient in any material aspect or if the foregoing procedure is not followed, the chairman of the annual meeting may determine that such shareholder's business should not be brought before the annual meeting, and the business shall not be transacted. The procedures regarding shareholder proposals and nominations provide the Board of Directors with the information that will be necessary to evaluate a shareholder proposal or nomination and other relevant information, such as existing shareholder support, as well as the time necessary to consider and evaluate such information in advance of the applicable meeting. The procedures also give incumbent directors advance notice of a business proposal or nomination. This notice may make it easier for the incumbent directors to defeat a shareholder proposal or nomination, even when certain shareholders view such proposal or nomination as in the best interests of the Registrant or its shareholders. The Registrant's Articles of Incorporation and Bylaws do not prevent shareholders from making proposals under the Commission's rules and regulations. Amendment of Articles of Incorporation or Bylaws The Virginia SCA provides that an amendment to a corporation's articles of incorporation must be approved by each voting group entitled to vote on the proposed amendment. Under Virginia law, an amendment to the corporation's articles of incorporation must be approved by more than two-thirds of all votes entitled to be cast by that voting group. However, the corporation's articles of incorporation may require a greater vote or a lesser vote, which may not be less than a majority, by each voting group entitled to vote on the transaction. A corporation's board of directors may also require a greater vote. The Registrant's Articles of Incorporation provide that amendments must be approved by a majority of the votes entitled to be cast by each voting group entitled to vote and, unless such action has been approved by at least two-thirds of the Continuing Directors, by holders of more than two-thirds of the issued and outstanding shares of Common Stock (the vote generally required under Virginia law). The term "Continuing Director" is defined in the Registrant's Articles of Incorporation to mean any individual (i) who is an initial director named in the Registrant's Articles of Incorporation or (ii) who has been elected to the Board of Directors of the Registrant at an annual meeting of the shareholders of the Registrant more than one time or (iii) who was elected to fill a vacancy on the Board of Directors of the Registrant and received the affirmative vote of a majority of the Continuing Directors then on the Board of Directors and thereafter elected to the Board of Directors at an annual meeting of shareholders at least one time. The Registrant's Bylaws may be amended by a majority vote of the directors in office or by the shareholders. Mergers, Consolidations and Sales of Assets. The Registrant's Articles of Incorporation provide that a plan of merger or share exchange or a direct or indirect sale, lease, exchange or other disposition of all or substantially all of the property of the Registrant not in the ordinary course of business may be approved by the same vote that is required in order to amend the Articles of Incorporation. Additionally, consistent with Virginia law, the Board of Directors of the Registrant may condition its submission of such plan of merger or share exchange or such a sale or disposition of assets to the shareholders on any -5- basis, including the requirement of a greater vote than the required vote described above. The reasons that the Registrant's Articles of Incorporation provide for an alternative vote on mergers, share exchanges and certain sales, leases, exchanges or dispositions of assets are the same reasons that the Articles of Incorporation provide for an alternative vote to amend the Articles of Incorporation. In many situations, the effect of the provisions in the Registrant's Articles of Incorporation that govern amendments to the Articles of Incorporation, mergers and share exchanges and certain dispositions of assets, would be to make it easier for the Board of Directors to gain shareholder approval of such actions than would be the case if a favorable vote of two-thirds of the outstanding shares were required in all cases. A proposed merger, share exchange or sale of substantially all assets of the Registrant that is favored by two-thirds of the Continuing Directors could be adopted as long as a majority (rather than two-thirds) of the outstanding shares entitled to vote in each voting group entitled to vote are voted in favor of the proposed action. In addition to requiring the affirmative vote of a majority of the shares entitled to vote in each voting group entitled to vote, the Registrant's Articles of Incorporation would require that, unless a proposed action is approved by at least two-thirds of the Continuing Directors, more than two-thirds of the issued and outstanding shares vote in favor of the proposed action. The purpose of such additional requirements is to ensure that if a proposed major corporate action does not have the support of a board of directors who can provide continuity to and an in-depth knowledge of the business of the Registrant, the action must be supported by more than two-thirds of the issued and outstanding shares of Common Stock. As with amendments to the Registrant's Articles of Incorporation, however, if at least two-thirds of the directors do not approve such corporate action upon which shareholders are voting, the additional requirement would permit a minority of the holders of the Common Stock to defeat the proposed action. State Anti-Takeover Statutes The Virginia SCA restricts transactions between a corporation and its affiliates and potential acquirors. The summary below is necessarily general and is not intended to be a complete description of all the features and consequences of those provisions, and is qualified in its entirety by reference to the statutory provisions contained in the Virginia SCA. Affiliated Transactions. The Virginia SCA contains provisions governing "Affiliated Transactions" found at Sections 13.1-725 - 727.1 of the Virginia SCA. Affiliated Transactions include certain mergers and share exchanges, certain material dispositions of corporate assets not in the ordinary course of business, any dissolution of a corporation proposed by or on behalf of an Interested Shareholder (as defined below), and reclassifications, including reverse stock splits, recapitalizations or mergers of a corporation with its subsidiaries, or distributions or other transactions that have the effect of increasing the percentage of voting shares beneficially owned by an Interested Shareholder by more than 5%. For purposes of the Virginia SCA, an Interested Shareholder is defined as any beneficial owner of more than 10% of any class of the voting securities of a Virginia corporation. Subject to certain exceptions discussed below, the provisions governing Affiliated Transactions require that, for three years following the date upon which any shareholder becomes an Interested Shareholder, any Affiliated Transaction must be approved by the affirmative vote of holders of two-thirds of the outstanding shares of the corporation entitled to vote, other than the shares beneficially owned by the Interested Shareholder, and by a majority (but not less than two) of the Disinterested Directors (as defined below). A Disinterested Director is defined in the -6- Virginia SCA as a member of a corporation's board of directors who (i) was a member before the later of January 1, 1988 or the date on which an Interested Shareholder became an Interested Shareholder and (ii) was recommended for election by, or was elected to fill a vacancy and received the affirmative vote of, a majority of the Disinterested Directors then on the corporation's board of directors. At the expiration of the three year period after a shareholder becomes an Interested Shareholder, these provisions require approval of the Affiliated Transaction by the affirmative vote of the holders of two-thirds of the outstanding shares of the corporation entitled to vote, other than those beneficially owned by the Interested Shareholder. The principal exceptions to the special voting requirement apply to Affiliated Transactions occurring after the three year period has expired and require either that the transaction be approved by a majority of the corporation's Disinterested Directors or that the transaction satisfy certain fair price requirements of the statute. In general, the fair price requirements provide that the shareholders must receive the higher of: the highest per share price for their shares as was paid by the Interested Shareholder for his or its shares, or the fair market value of the shares. The fair price requirements also require that, during the three years preceding the announcement of the proposed Affiliated Transaction, all required dividends have been paid and no special financial accommodations have been accorded the Interested Shareholder, unless approved by a majority of the Disinterested Directors. None of the foregoing limitations and special voting requirements applies to a transaction with an Interested Shareholder who has been an Interested Shareholder continuously since the effective date of the statute (January 26, 1988) or who became an Interested Shareholder by gift or inheritance from such a person or whose acquisition of shares making such person an Interested Shareholder was approved by a majority of the Disinterested Directors of the corporation. These provisions were designed to deter certain takeovers of Virginia corporations. In addition, the Virginia SCA provides that by affirmative vote of a majority of the voting shares other than shares owned by any Interested Shareholder, a corporation may adopt by meeting certain voting requirements, an amendment to its articles of incorporation or bylaws providing that the Affiliated Transactions provisions shall not apply to the corporation. The Registrant has not adopted such an amendment. Control Share Acquisitions. The Virginia Control Share Acquisitions statute, found at Sections 13.1-728 - 728.8 of the Virginia SCA, also is designed to afford shareholders of a public company incorporated in Virginia protection against certain types of non-negotiated acquisitions in which a person, entity or group ("Acquiring Person") seeks to gain voting control of that corporation. With certain enumerated exceptions, the statute applies to acquisitions of shares of a corporation that would result in an Acquiring Person's ownership of the corporation's shares entitled to vote in the election of directors falling within any one of the following ranges: 20% to 33-1/3%, 33-1/3% to 50% or 50% or more (a "Control Share Acquisition"). Shares that are the subject of a Control Share Acquisition ("Control Shares") will not be entitled to voting rights unless the holders of a majority of the "Disinterested Shares" vote at an annual or special meeting of shareholders of the corporation to accord the Control Shares with voting rights. Disinterested Shares do not include shares owned by the Acquiring Person or by officers and inside directors of the target company. Under certain circumstances, the statute permits an Acquiring Person to call a special shareholders' meeting for the purpose of considering granting voting rights to the holders of the Control Shares. As a condition to having this matter considered at either an annual or special meeting, the Acquiring Person must provide shareholders with detailed disclosures about his identity, the method and financing of the Control Share Acquisition and any plans to -7- engage in certain transactions with, or to make fundamental changes to, the corporation, its management or business. Under certain circumstances, the statute grants dissenters' rights to shareholders who vote against granting voting rights to the Control Shares. The Virginia Control Share Acquisitions statute also enables a corporation to make provisions for redemption of Control Shares with no voting rights. A corporation may opt out of the statute, which the Registrant has done, by so providing in its articles of incorporation or bylaws. Among the acquisitions specifically excluded from the statute are acquisitions that are a part of certain negotiated transactions to which the corporation is a party and that, in the case of mergers or share exchanges, have been approved by the corporation's shareholders under other provisions of the Virginia SCA. Item 2. Exhibits I. 4.1 Articles of Incorporation of the Registrant (restated in electronic format). 4.2 Bylaws of the Registrant (restated in electronic format). II. Not applicable. -8- SIGNATURES Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized. INDEPENDENT COMMUNITY BANKSHARES, INC. Dated: April 27, 1998 By: /s/ Joseph L. Boling ---------------------- Joseph L. Boling Chairman and Chief Executive Officer INDEX TO EXHIBITS Exhibit No. Description - ----------- ----------- 4.1 Articles of Incorporation of the Registrant (restated in electronic format). 4.2 Bylaws of the Registrant (restated in electronic format). -10- EX-3.(I) 2 ARTICLES OF INCORPORATION Exhibit 3.1 ARTICLES OF INCORPORATION OF INDEPENDENT COMMUNITY BANKSHARES, INC. (restated in electronic format) ARTICLE I NAME The name of the corporation is Independent Community Bankshares, Inc. ARTICLE II CAPITAL STOCK Paragraph A. The aggregate number of shares of stock which the Corporation shall have the authority to issue and the par value per share is as follows: Class Number of Shares Par Value Common Stock 10,000,000 $5.00 Paragraph B. No holders of any class of stock of the Corporation shall have any preemptive or other preferential right to purchase or subscribe to (i) any shares of any class of stock of the Corporation, whether now or hereafter authorized, (ii) any warrants, rights or options to purchase any such stock, or (iii) any obligations convertible into any such stock or into warrants, rights or options to purchase any such stock. Paragraph C. The holders of the Common Stock shall, to the exclusion of the holders of any other class of stock of the Corporation, have the sole and full power to vote for the election of directors and for all other purposes without limitation. The holders of the Common Stock shall have one vote for each share of Common Stock held by them. The holders of the Common Stock shall be entitled to receive the net assets of the Corporation upon dissolution. ARTICLE III INDEMNIFICATION AND LIMITS ON LIABILITY OF DIRECTORS AND OFFICERS Paragraph A. The Corporation shall indemnify any Director or Officer made a Party to a Proceeding (including without limitation any Proceeding by or in the right of the Corporation in which the Director or Officer is adjudged liable to the Corporation) because he or she is or was a Director or Officer of the Corporation against any Liability incurred in the Proceeding to the fullest extent permitted by Virginia law, as it may be amended from time to time. Paragraph B. The Corporation shall not indemnify a Director or Officer under Paragraph A above (unless authorized or ordered by a court) unless in each specific case a determination pursuant to Virginia law, as it may be amended from time to time, has been made that indemnification is permissible under the circumstances. The termination of a Proceeding by judgment, order, settlement or conviction is not, of itself, determinative that the Director or Officer is not entitled to indemnification under this Article III. Paragraph C. Expenses incurred by a Director or Officer in a Proceeding shall be paid by the Corporation in advance of the final disposition of the Proceeding if: 1. The Director or Officer furnishes the Corporation a written statement of his good faith belief that he or she is entitled to indemnification pursuant to this Article III. 2. The Director or Officer furnishes the Corporation a written undertaking, executed personally or on his or her behalf, to repay the advance if it is ultimately determined that he or she did not meet the standard for indemnification pursuant to this Article III; and 3. A determination pursuant to Virginia law, as it may be amended from time to time, is made that the facts then known to those making the determination would not preclude indemnification under this Article III. The undertaking required by subsection 2 of this Paragraph C shall be an unlimited general obligation of the Director or Officer but need not be secured and may be accepted without reference to his or her financial ability to make repayment. Paragraph D. The indemnification provided by this Article III shall not be exclusive of any other rights to which any Director or Officer may be entitled, including without limitation rights conferred by applicable law and any right under policies of insurance that may be purchased and maintained by the Corporation or others, even as to liabilities against which the Corporation would not have the power to indemnify such Director or Officer under the provisions of this Article III. Paragraph E. The Corporation may purchase and maintain at its sole expense insurance, in such amounts and on such terms and conditions as the Board of Directors may deem reasonable, against all liabilities or losses it may sustain in consequence of the indemnification provided for in this Article III. Paragraph F. The Board of Directors shall have the power but not the obligation, generally and in specific cases, to indemnify employees and agents of the Corporation to the same extent as provided in this Article III with respect to Directors or Officers. The Board of Directors is hereby empowered by a majority vote of a quorum of disinterested Directors to contract in advance to indemnify any Director or Officer. The Board of Directors is further empowered, by majority vote of a quorum of disinterested Directors, to cause the Corporation to contract in advance to indemnify any person who is not a Director or Officer who was or is a party to any Proceeding, by reason of the fact that he or she is or was an employee or agent of the Corporation, or was serving at the request of the Corporation as Director, Officer, employee or agent of another corporation, partnership, joint venture trust, employee benefit plan or other enterprise, to the same extent as if such person were a Director or Officer. Paragraph G. To the full extent that Virginia law, as it exists on the date hereof or may hereafter be amended, permits the limitation or elimination of the liability of Directors and Officers, a Director or Officer shall not be liable to the Corporation or its shareholders for any monetary damages in excess of one dollar. Paragraph H. In this Article III: "Director" means an individual who is or was a director of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or -2- domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. A director is considered to be serving an employee benefit plan at the Corporation's request if his duties to the corporation also impose duties on, or otherwise involve services by, him to the plan or to participants in or beneficiaries of the plan. "Director" includes the estate or personal representative of a director. "Officer" means an individual who is or was an officer of the Corporation or an individual who is or was serving at the Corporation's written request as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. An officer is considered to be serving an employee benefit plan at the Corporation's request if his duties to the Corporation also impose duties on, or otherwise involve services by, him to the plan or to participants in or beneficiaries of the plan. "Officer" includes the estate or personal representative of an officer. Except as set forth above "Officer" does not include officers of corporations controlled by the Corporation. "Expenses" includes but is not limited to counsel fees. "Liability" means the obligation to pay a judgment, settlement, penalty, fine, including without limitation any excise tax assessed with respect to an employee benefit plan, or reasonable Expenses incurred with respect to a Proceeding. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in any Proceeding. "Proceeding" means any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal. ARTICLE IV DIRECTORS Paragraph A. The initial directors, whose terms shall expire at the first shareholders' meeting at which directors are elected, shall be: Howard M. Armfield Joseph L. Boling P. O. Box 3 P. O. Box 1306 Middleburg, VA 22117 Middleburg, VA 22117 J. Lynn Cornwell, Jr. William F. Curtis Box 548 Rt. 2, Box 498 Purcellville, VA 22132 The Plains, VA 22171 Gordon Grayson George A. Horkan, Jr. Blue Ridge Farm Cleremont Farm Upperville, VA 22176 Rt. 1, Box 34 Upperville, VA 22176 -3- C. Oliver Iselin, III William S. Leach P. O. Box 225 P. O. Box 42 Middleburg, VA 22117 Middleburg, VA 22117 John C. Palmer William S. Stokes, III Rt. 2, Box 183 P. O. Box 720 Marshall, VA 22115 Ayrshire Farm Upperville, VA 22176 Millicent W. West Edward T. Wright P. O. Box 236 P. O. Box 424 Upperville, VA 22176 Middleburg, VA 22117 Commencing with the first shareholders' meeting at which directors are elected, the directors shall be elected at each annual meeting of the stockholders of the Corporation. Paragraph B. Advance notice of stockholder nominations for the election of directors shall be given in the manner provided in the Bylaws of the Corporation. Paragraph C. Newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled only by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the full term of the new directorship or the remainder of the full term of the directorship in which the vacancy occurred and until such director's successor shall have been elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. ARTICLE V BYLAW AMENDMENTS The Board of Directors shall have power to make, alter, amend and repeal the Bylaws of the Corporation except so far as the Bylaws of the Corporation adopted by the stockholders shall otherwise provide. Any Bylaws made by the directors under the powers conferred hereby may be altered, amended or repealed by the directors or by the stockholders. ARTICLE VI SPECIAL VOTING PROVISIONS Paragraph A. An amendment to the Articles of Incorporation of the Corporation shall be approved if: 1. A majority of the votes entitled to be cast by each voting group entitled to vote on such action are cast in favor of such action; and, 2. Unless such action shall have been approved by at least two-thirds of the directors who are Continuing Directors, holders of more than two-thirds of the issued and outstanding shares of the Corporation's Common Stock vote in favor of such action. -4- Paragraph B. Any director may only be removed from office with or without cause, but only if at least seventy-five percent (75%) of the votes cast on such action are cast in favor of such action. Paragraph C. Any merger or share exchange to which the Corporation is a party or any direct or indirect sale, lease, exchange or other disposition of all or substantially all of the Corporation's property, otherwise than in the usual and regular course of business, shall be approved if: 1. A majority of the votes entitled to be cast by each voting group entitled to vote on such action are cast in favor of such action; and, 2. Unless such action shall have been approved by at least two-thirds of the directors who are Continuing Directors, at least two-thirds of the issued and outstanding shares of the Corporation's Common Stock vote in favor of such action. This Paragraph C shall not affect the power of the Board of Directors to condition its submission of any plan of merger, share exchange or direct or indirect sale, lease, exchange or other disposition of all or substantially all of the Corporation's property, otherwise than in the usual and regular course of business, on any basis, including the requirement of a greater vote. Paragraph D. For purposes of these Articles of Incorporation an abstention or failure to vote shall not be considered a vote in favor of or opposing any particular action. Paragraph E. For purposes of this Article VI, a Continuing Director is (i) any individual who is an initial director named in these Articles of Incorporation, or (ii) any individual who has been elected to the Board of Directors of the Corporation at an annual meeting of the stockholders of the Corporation more than one time or (iii) any individual who was elected to fill a vacancy on the Board of Directors and received the affirmative vote of a majority of the Continuing Directors then on the Board of Directors and thereafter elected to the Board of Directors at an annual meeting of the stockholders of the Corporation at least one time. ARTICLE VII REGISTERED OFFICE AND AGENT The post office address of the initial registered office is Cleremont Farm, Rt. 2, Box 34, Upperville, Virginia 22176, which is located in the County of Loudon. The name of the initial registered agent is George A. Horkan, Jr., who is a resident of Virginia and a member of the Virginia State Bar, and whose business office is the same as the registered office of the Corporation. EX-3.(II) 3 BYLAWS Exhibit 3.2 BYLAWS OF INDEPENDENT COMMUNITY BANKSHARES, INC. (restated in electronic format) ARTICLE I Shareholder Matters Section 1.1. Annual Meetings. A. The annual meeting of the shareholders of the Corporation shall be held at such a place as may be decided by, the Board of Directors on a date during the month of March, April or May of each and every year, the exact date, place and hour to be fixed by the Board of Directors. B. At the annual meeting of the shareholders of the Corporation, Directors shall be elected and reports of the affairs of the Corporation shall be received and considered. Any other business may be transacted which is within the powers of the shareholders, except that, if any shareholder shall bring new business before the annual meeting, the shareholder must give advance notice as set forth in Section 1.6 of these Bylaws. C. The Board of Directors may designate any place, either within or without the Commonwealth of Virginia, as the place of meeting for any annual meeting or for any special meeting. If no place is designated by the Board, the place of meeting shall be the principal office of the Corporation. Section 1.2. Special Meetings. A special meeting of the shareholders may be called for any purpose or purposes whatsoever at any time, but only by the President, the Chairman of the Board of Directors, or the Board of Directors. Section 1.3. Notice of Meetings. Notice of the time and place of every annual meeting or special meeting shall be mailed to each Shareholder of record entitled to vote at the meeting at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days before the date of such meeting (except as a different time may be specified by law). Section 1.4. Quorum. A majority of the votes entitled to be cast on a matter by a voting group constitutes a quorum of such voting group for action on such matter. If there is not a quorum at the time for which a meeting shall have been called, the meeting may be adjourned from time to time by a majority of the shareholders present or represented by proxy without notice, other than by announcement at the meeting, until there is a quorum. Section 1.5. Voting. Except as the Articles of Incorporation otherwise provide, at any meeting of the shareholders, each outstanding share, regardless of class, is entitled to one vote on each matter voted on at a shareholders' meeting. Section 1.6. Notice of Shareholder Business. At an annual meeting of the shareholders of the Corporation, only such business shall be conducted as shall have been properly brought before the meeting. To be brought before an annual meeting, business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise bought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a shareholder. For business to be properly brought before an annual meeting by a shareholder, the Shareholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than sixty (60) days nor more than ninety (90) days prior to the date of the scheduled annual meeting, regardless of any postponements, deferrals or adjournments of that meeting to a later date; provided, however, that in the event that less than seventy (70) days' notice or prior public disclosure of the date of the scheduled annual meeting is given or made, notice by a shareholder, to be timely, must be so received not later than the close of business on the tenth (10th) day following the earlier of the day on which such notice of the date of the scheduled annual meeting was mailed or the day on which such public disclosure was made. A shareholder's notice to the Secretary of the Corporation shall set forth as to each matter the shareholder proposes to bring before the annual meeting (a) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (b) the name and address, as they appear on the Corporation's books of the shareholder proposing such business and of any other person or entity who is the record or beneficial owner of any shares of the Corporation and who, to the knowledge of the shareholder proposing such business, supports such proposal, (c) the class and number of shares of the Corporation which are beneficially owned and owned of record by the shareholder proposing such business on the date of his notice to the Corporation and the number of shares so owned by any person or entity who, to the knowledge of the shareholder proposing such business, supports such proposal and (d) any material interest (financial or other) of such shareholder in such proposal. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section 1.6. The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Section 1.6. and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Section 1.7. Order of Business. All meetings of shareholders shall be conducted in accordance with such rules as are prescribed by the Chairman of the meeting and he shall determine the order of business at all meetings of the shareholders. Section 1.8. Inspectors. The Board of Directors, in advance of any meeting of shareholders, may, but shall not be required to, appoint one or more inspectors to act at such meeting or any adjournment thereof. If any of the inspectors so appointed shall fail to appear or act, the Chairman of the meeting may appoint one or more inspectors. The inspectors shall determine the number of shares of capital stock of the Corporation outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the results, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. On request of the Chairman of the meeting, the inspectors shall make a report of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them. No director or candidate for the office of director shall act as an inspector of an election of directors. Inspectors need not be shareholders. ARTICLE II Directors Section 2.1. General Powers. The business and affairs of the Corporation shall be managed under the direction of the Board of Directors and, except as otherwise expressly -2- provided by law or by the Articles of Incorporation, or by these Bylaws, all of the powers of the Corporation shall be exercised by or under the authority of said Board of Directors. Section 2.2. Number and Qualification. The Board of Directors shall consist of 14 Directors. Each Director shall be a resident of the Commonwealth of Virginia. Except the initial directors of the Corporation named in the Articles of Incorporation, no one who is seventy years of age or older shall be eligible to stand for re-election to the Board of Directors at the annual meeting following his seventieth birthday. Section 2.3. Election of Directors. The Directors shall be elected at the annual meeting of shareholders, and shall hold their offices until their successors are elected in accordance with the Articles of Incorporation. Nominations for the election of Directors shall be given in the manner provided in Section 2.5. Section 2.4. Honorary and Advisory Directors. The Board may appoint to the position of Honorary Director or the position of Advisory Director such person or persons as it deems appropriate. Honorary Directors shall be entitled to receive notice of, and to attend all meetings of the Board, but they shall not be Directors and shall not be entitled to vote, nor shall they be counted in determining a quorum of the Board. Advisory Directors shall be entitled only to notice of meetings of Advisory or other Boards of the Corporation to which they shall be appointed. Honorary and Advisory Directors shall receive such compensation as may be authorized by the Board of attendance at meetings of Advisory or other Boards to which such Advisory or Honorary Directors are appointed. Section 2.5. Nominations. Only persons who are nominated in accordance with the procedures set forth in this Section 2.5 shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the Corporation may be made by or at the direction of the Board of Directors, or by any shareholder of the Corporation entitled to vote for the election of Directors who complies with the notice procedures set forth in this Section 2.5. Such nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a shareholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporations not less than sixty (60) days nor more than ninety (90) days prior to the date of the scheduled annual meeting, regardless of postponements, deferrals, or adjournments of that meeting to a later date; provided, however, in the event that less than seventy (70) days' notice or prior pubic disclosure of the date of the meeting is given or made, notice by the shareholder to be timely must be so received not later than the close of business on the 10th day following the earlier of the day on which such notice of the date of the scheduled annual meeting was mailed or the day on which such public disclosure was made. Such shareholder's notice shall set forth (a) as to each person whom the shareholder proposes to nominate for election as a Director, (1) the name, age, business address and residence address of such person, (ii) the principal occupation or employment of such person, (iii) the class and number of shares of the Corporation which are beneficially owned by such person and (iv) any other information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended; and (b) as to the shareholder giving the notice (i) the name and address of such shareholder and of any other person or entity who is the record or beneficial owner of shares of the Corporation and who, to the knowledge of the shareholder giving notice, supports such nominee(s) and (ii) the class and number of shares of the Corporation which are beneficially owned and owned of record by such shareholder and by any other person or entity who is the record or beneficial owner of shares of the Corporation and who, to the knowledge of the -3- shareholder giving the notice, supports such nominee(s). At the request of the Board of Directors any person nominated by the Board of Directors for election as a Director shall furnish to the Secretary of the Corporation the information required to be set forth in a shareholder's notice of nomination which pertains to the nominee. No person shall be eligible for election as a Director of the Corporation unless in accordance with the procedures set forth in this Section 2.5. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by the Bylaws, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. Section 2.6. Meetings of Directors. Meetings of the Board of Directors shall be held at places within or without the Commonwealth of Virginia and at times fixed by resolution of the Board of Directors, or upon call of the Chairman of the Board of Directors or the President. The Secretary, or officer performing his duties, shall give at least twenty-four (24) hours' notice by telegraph, letter, telephone or in person, of all meetings of the Directors; provided, that notice need not be given of regular meetings held at times and places fixed by resolution of the Board. Regular meetings of the Board of Directors shall be held at least once in every calendar month. Meetings may be held at any time without notice if all of the Directors are present, or if those not present waive notice either before or after the meeting. Neither the business to be transacted nor the purpose of any annual or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting. Section 2.7. Quorum. A majority of the members of the Board of Directors shall constitute a quorum. Section 2.8. Compensation. The Board of Directors shall fix the compensation of the Directors. Section 2.9. Committees. The Board of Directors may create committees and appoint members of committees in accordance with Virginia law. There shall be an Executive Committee and such committee may exercise the authority of the Board of Directors to the fullest extent permitted by law. ARTICLE III Officers Section 3.1. Election. The Officers of the Corporation shall consist of the Chairman of the Board of Directors, the President, one or more Executive Vice Presidents, one or more senior Vice Presidents, one or more additional Vice Presidents, a Secretary, a Treasurer, one or more Assistant Secretaries, and such other officers as may be elected as provided in Section 3.3 of this Article. All Officers shall be elected by the Board of Directors, and shall hold office until their successors are elected and qualify. Vacancies may be filled at any meeting of the Board of Directors. Subject to any applicable provision of Virginia law, more than one office may be combined in the same person as the Board of Directors may determine. Section 3.2. Removal of Officers. Any Officer of the Corporation may be summarily removed with or without cause, at any time, by a resolution passed by affirmative vote of a majority of all of the Directors; provided that any such removal shall not affect an Officer's right to any compensation to which he is entitled under any employment contract between him and the Corporation. -4- Section 3.3. Other Officers. Other Officers may from time to time be appointed by the Board of Directors, and such Officers shall hold office for such term as may be designated by the said Board of Directors. Section 3.4. Chairman of the Board. The Chairman of the Board shall be the senior Officer of the Corporation, and he shall preside at all meetings of the Directors and all meetings of the shareholders. He shall appoint all standing committees and temporary committees. He shall be a member ex officio of all standing committees and shall have all other powers and duties as may be prescribed by the Board of Directors or by the Bylaws. Section 3.5. President. In the absence or disability of the Chairman of the Board, the President shall preside at all meetings of the Directors and at meetings of the shareholders and in the absence or disability of the Chairman of the Board the duties and responsibilities of his office shall devolve upon the President. The President shall have such other powers and duties as may be prescribed by the Chairman of the Board of Directors, the Board of Directors or by the Bylaws. Section 3.6. Vice Presidents. Executive Vice Presidents, Senior Vice Presidents and Vice Presidents shall perform such duties as may be prescribed for them from time to time by the Chairman of the Board of Directors, the Board of Directors or the Bylaws. Section 3.7. Secretary. The Secretary shall have the duties and responsibilities prescribed by law for the secretary of a Virginia corporation. Section 3.8. Surety Bonds. All Officers and employees who shall have charge or possession of money, securities or property of the Corporation must, before entering upon their duties, be covered by a bond with a surety company approved by the Board of Directors and state and federal authorities. The costs of such bond shall be borne by the Corporation. ARTICLE IV Capital Stock Section 4.1. Issues of Certificate of Stock. Certificates of capital stock shall be in such form as may be prescribed by law and by the Board of Directors. All certificates shall be signed by the President and by the Secretary or an Assistant Secretary, or by any other two Officers authorized by resolution of the Board of Directors. Section 4.2. Transfer of Stock. The stock of the corporation shall be transferable or assignable on the books of the Corporation by the holders in person or by attorney on surrender of the certificate or certificates for such shares duly endorsed, and, if sought to be transferred by attorney, accompanied by a written power of attorney to have such stock transferred on the books of the Corporation. Section 4.3. Restrictions on Transfer of Stock. Any restrictions that may be imposed by law, by the Articles of Incorporation or Bylaws of the Corporation, or by an agreement among shareholders of the Corporation, or by an agreement among shareholders of the Corporation, shall be noted conspicuously on the front or back of all certificates representing shares of stock of the Corporation. Section 4.4. Lost, Destroyed or Mutilated Certificates. The holder of stock of the Corporation shall immediately notify the Corporation of any loss, destruction, or mutilation of the -5- certificate therefor, and the Corporation may in its discretion cause one or more new certificates for the same aggregate number of shares to be issued to such Stockholder upon the surrender of the mutilated certificate, or upon satisfactory proof of such loss or destruction accompanied by the deposit of a bond in such form and amount and with such surety as the Corporation may require. Section 4.5. Holder of Record. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder thereof in fact and shall not be bound to recognize any equitable or other claim to or interest in such shares of stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by law. Section 4.6. Record Date. The Board of Directors shall fix in advance the record date in order to make a determination of shareholders for any purpose, including the determination of shareholders entitled to notice of or to vote at any shareholders' meeting or entitled to payment of any dividend or distribution to shareholders. Such record date shall not be more than seventy (70) days prior to the date on which the particular action requiring such determination of shareholders is to be taken. Section 4.7. Control Share Acquisitions. Article 14.1 of the Virginia Stock Corporation Act shall not apply to the Corporation. ARTICLE V Miscellaneous Provisions Section 5.1. Seal. The seal of the Corporation shall be circular in shape with the name of the Corporation around the circumference thereof, and the word "SEAL" in the center thereof. Section 5.2. Examination of the Books and Records. The books and records of account of the Corporation, the minutes of the proceedings of the shareholders, the Board and Committees appointed by the Board of Directors and the records of the shareholders showing the names and addresses of all shareholders and the number of shares held by each, shall be subject to inspection during the normal business hours by any person who is a duly qualified Director of the Corporation at the time he makes such inspection. Shareholders shall have such rights to inspect records of the Corporation as are prescribed by applicable law. Section 5.3. Checks, Notes and Drafts. Checks, notes, drafts, and other orders for the payment of money shall be signed by such persons as the Board of Directors from time to time may authorize. Section 5.4. Amendments to By-Laws. These Bylaws may be altered, amended or repealed in accordance with the Articles of Incorporation. Section 5.5. Voting of Stock Held. Unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board of Directors, the President or any Executive Vice President may from time to time appoint an attorney or attorneys as agent or agents of the Corporation to cast in the name of the Corporation the votes which the Corporation may be entitled to cast as a shareholder or otherwise in any other corporation, any of whose stock or securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by any such other corporation; and such Officers may instruct the person or persons so appointed as to the manner -6- of casting such votes or giving such consent, and may execute or cause to be executed on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, consents, waivers, or other instruments as may be necessary or proper in the premises; or any of such Officers may himself attend any meeting of the holders of stock or other securities of any such other corporation and there vote or exercise any or all other powers of the Corporation as the holder of such stock or other securities of such other corporation. -7- -----END PRIVACY-ENHANCED MESSAGE-----