Securities Registration: Employee Benefit Plan (s-8)
30 Juin 2016 - 7:32PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on June 30, 2016
Registration No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
eastern
virginia bankshares, inc.
(Exact name of registrant as specified in its
charter)
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Virginia
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54-1866052
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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330 Hospital Road
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Tappahannock, Virginia
(Address of principal executive offices)
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22560
(Zip Code)
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Eastern
Virginia Bankshares, Inc. 2016 Equity compensation plan
(Full title of the plan)
Joe A. Shearin
President and Chief Executive Officer
Eastern Virginia Bankshares, Inc.
330 Hospital Road
Tappahannock, Virginia 22560
(804) 443-8400
(Name and address of agent for service)
(Telephone number, including area code, of agent
for service)
The Commission is requested to mail signed
copies of all orders, notices and communications to:
Susan S. Ancarrow, Esq.
Troutman Sanders LLP
1001 Haxall Point
P.O. Box 1122
Richmond, Virginia 23218-1122
Telephone: (804) 697-1861
Facsimile: (804) 698-6015
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.
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Large accelerated filer
¨
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Accelerated filer
x
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
¨
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be
registered
(1)
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Proposed maximum
offering price per
share
(2)
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Proposed maximum
aggregate offering
price
(2)
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Amount of
registration fee
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Common Stock, par value $2 per share
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500,000
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$
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7.21
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$
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3,605,000.00
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$
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363.03
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration
Statement also covers an indeterminate number of additional shares of Common Stock, par value $2 per share (“Common Stock”),
of Eastern Virginia Bankshares, Inc. (the “Registrant”), which may be offered and issued to prevent dilution resulting
from adjustments as a result of stock dividends, stock splits, combinations of shares, spin-offs, recapitalizations, mergers and
other capital adjustments.
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(2)
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Pursuant to Rule 457(c) and 457(h) of the Securities Act, the proposed maximum offering price per share and the proposed maximum
aggregate offering price are estimated solely for the purpose of calculating the amount of the registration fee and are based on
the average of the high and low prices of the Registrant’s Common Stock as reported on The NASDAQ Stock Market LLC on June
23, 2016.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
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ITEM
1.
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PLAN INFORMATION.*
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ITEM 2.
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REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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*The information specified in Items 1 and 2 of
Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory
note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants
in the plan covered by this Registration Statement and as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents filed with the Securities
and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement as of their
respective dates of filing:
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(1)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015 filed with the Commission on
March 15, 2016;
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(2)
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The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2016 filed with the Commission
on May 10, 2016;
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(3)
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The Registrant’s Current Reports on Form 8-K filed with the Commission on March 25, 2016 and May 24, 2016; and
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(4)
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The description of the Registrant’s Common Stock contained in the Form 8-A12g filed with the Commission on December 29,
1997, in the Registrant’s Bylaws, as amended, filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed
with the Commission on June 14, 2013, and in the Registrant’s Amended and Restated Articles of Incorporation, filed as Exhibit
3.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed with the Commission
on March 10, 2009, as amended by the Articles of Amendment to the Articles of Incorporation, filed as Exhibit 3.1 to the Registrant’s
Current Report on Form 8-K filed with the Commission on January 13, 2009, and as further amended by the Articles of Amendment to
the Articles of Incorporation, filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission
on June 14, 2013 (as amended and further amended, the “Articles”), and any further amendment or report filed for the
purpose of updating such description.
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All documents filed subsequent to the date of
this Registration Statement by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all shares
of Common Stock offered hereby have been sold or which deregisters any shares of such Common Stock then remaining unsold, shall
also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from their respective dates
of filing. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, or in
any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes
such statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent
that a statement contained in a subsequently filed document which is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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Item 4.
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DESCRIPTION OF SECURITIES.
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Not applicable.
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Item 5.
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INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not applicable.
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Item 6.
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INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Virginia law, which includes the Virginia Stock
Corporation Act (“VSCA”), permits a Virginia corporation to indemnify any of its directors or officers in certain circumstances.
The VSCA permits the Registrant to indemnify any of its directors or officers if he acted in good faith and in a manner which he
believed to be in the best interest of the Registrant, and, in the case of a criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful. Unless ordered by a court, the Registrant cannot indemnify a director or officer in connection
with a proceeding by or in the right of the Registrant except for reasonable expenses incurred in connection with the proceeding
if it is determined that he acted in good faith and in a manner which he believed to be in the best interest of the Registrant
or in connection with any other proceeding charging improper personal benefit to the director or officer, whether or not involving
action in his official capacity, in which he was adjudged liable on the basis that a personal benefit was improperly received by
him.
Furthermore, unless limited by its articles
of incorporation, the VSCA requires a Virginia corporation to indemnify a director or officer who entirely prevails in the defense
of any proceeding to which he was a party because he is or was a director or officer of the corporation against reasonable expenses
incurred by him in connection with the proceeding.
The VSCA also authorizes a Virginia corporation
to purchase and maintain insurance on behalf of an individual who is or was a director or officer of a corporation, or who, while
a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent of another corporation, limited liability company, partnership, joint venture, trust, employee benefit
plan, or other entity against liability asserted against, or incurred by, him in any such capacity or arising from his status as
a director or officer, whether or not the corporation would have the power to indemnify him against such liability as provided
above.
The VSCA also provides that a Virginia corporation
may make any other or further indemnity (including indemnity with respect to a proceeding by or in the right of the corporation),
and may make additional provision for advances and reimbursement of expenses, if authorized by its articles of incorporation or
shareholder-adopted bylaw or resolution, except an indemnity against willful misconduct or a knowing violation of the criminal
law. The Articles provide that, to the full extent permitted by the VSCA, each director and officer shall be indemnified by the
Registrant against liabilities, fines, penalties and claims imposed upon or asserted against him (including amounts paid in settlement)
by reason of having been such director or officer, whether or not then continuing so to be, and against all expenses (including
counsel fees) reasonably incurred by him in connection therewith, except in relation to matters as to which he shall have been
finally adjudged liable by reason of his willful misconduct or a knowing violation of criminal law in the performance of his duty
as such director or officer. The Articles further provide that the Registrant shall advance expenses incurred by a director or
officer in a proceeding, in advance of a final disposition of the proceeding if:
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the director or officer furnishes the Registrant a written statement of his good faith belief that he is entitled to indemnification
pursuant to the Articles;
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the director or officer furnishes the Registrant a written undertaking to repay the advance if it is ultimately determined
that he did not meet the standard for indemnification provided in the Articles; and
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a determination pursuant to Virginia law is made that the facts then known would not preclude indemnification under the Articles.
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The VSCA establishes a statutory limit on liability
of directors and officers of a Virginia corporation for damages assessed against them in a proceeding brought by or in the right
of the corporation or brought by or on behalf of the corporation’s shareholders and authorizes a corporation to specify a
lower monetary limit on liability (including the elimination of liability for monetary damages) in the corporation’s articles
of incorporation or bylaws; however, the liability of a director or officer shall not be limited if such director or officer engaged
in willful misconduct or a knowing violation of the criminal law or of any federal or state securities law. As permitted by the
VSCA, the Articles eliminate the liability for monetary damages of a director or officer in a proceeding brought by or in the right
of the Registrant or brought by or on behalf of the Registrant’s shareholders. This elimination of liability will not
apply in the event of willful misconduct or a knowing violation of criminal law or any federal or state securities law.
The Registrant maintains officers’ and
directors’ insurance covering certain liabilities that may be incurred by officers and directors in the performance of their
duties.
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Item 7.
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EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
For the list of exhibits, see the Exhibit Index
to this Registration Statement, which is incorporated in this item by reference.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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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;
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(ii)
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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. 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 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
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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 the Registration Statement
or any material change to such information in the Registration Statement;
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provided, however,
that: paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
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(2)
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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.
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(3)
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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.
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(b)
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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 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 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.
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(h)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to applicable law, the Registrant’s Articles of Incorporation or Bylaws, as such may be
amended from time to time, 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.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, 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 County of Essex, Commonwealth of Virginia, on June 30, 2016.
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eastern virginia bankshares, inc.
(Registrant)
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By:
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/s/ Joe A. Shearin
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Name:
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Joe A. Shearin
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Title:
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Joe A. Shearin and J. Adam Sothen, and each of them, with full power to
act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in his capacity as a director or officer, or both, of Eastern Virginia Bankshares, Inc.,
to sign any and all amendments (including post-effective amendments) and supplements to this Registration Statement, including
any amendment to this Registration Statement for the purpose of registering additional shares in accordance with General Instruction
E to Form S-8, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act necessary or desirable to be done in connection with the above-described matters, as fully
to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Capacity
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Date
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/s/ Joe A. Shearin
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President, Chief Executive Officer & Director
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June 30, 2016
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Joe A. Shearin
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(Principal Executive Officer)
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/s/ J. Adam Sothen
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Executive Vice President & Chief Financial Officer
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June 30, 2016
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J. Adam Sothen
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(Principal Financial and Accounting Officer)
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/s/ W. Rand Cook
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Director & Chairman of the Board of Directors
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June 30, 2016
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W. Rand Cook
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/s/ F. L. Garrett, III
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Director & Vice Chairman of the Board of Directors
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June 30, 2016
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F. L. Garrett, III
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/s/ John F. Biagas
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Director
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June 30, 2016
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John F. Biagas
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/s/ W. Gerald Cox
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Director
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June 30, 2016
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W. Gerald Cox
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/s/ Michael E. Fiore
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Director
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June 30, 2016
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Michael E. Fiore
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/s/ Boris M. Gutin
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Director
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June 30, 2016
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Boris M. Gutin
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/s/ Ira C. Harris
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Director
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June 30, 2016
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Ira C. Harris
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/s/ Eric A. Johnson
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Director
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June 30, 2016
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Eric A. Johnson
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/s/ W. Leslie Kilduff, Jr.
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Director
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June 30, 2016
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W. Leslie Kilduff, Jr.
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/s/ Leslie E. Taylor
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Director
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June 30, 2016
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Leslie E. Taylor
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/s/ Jay T. Thompson, III
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Director
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June 30, 2016
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Jay T. Thompson, III
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EXHIBIT INDEX
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Exhibit Number
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Description of Exhibit
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4.1
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Amended and Restated Articles of Incorporation of Eastern Virginia Bankshares, Inc., effective December 29, 2008 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed March 10, 2009)
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4.1.1
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Articles of Amendment to the Articles of Incorporation of Eastern Virginia Bankshares, Inc., effective January 6, 2009 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed January 13, 2009)
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4.1.2
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Articles of Amendment to the Articles of Incorporation of Eastern Virginia Bankshares, Inc., effective June 10, 2013 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed June 14, 2013)
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4.2
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Bylaws of Eastern Virginia Bankshares, Inc., as amended June 4, 2013 (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed June 14, 2013)
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5.1
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Opinion of Troutman Sanders LLP with respect to the validity of the Common Stock*
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23.1
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Consent of Troutman Sanders LLP (included as part of Exhibit 5.1 to the Registration Statement)*
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23.2
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Consent of Yount, Hyde & Barbour, P.C.*
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24.1
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Powers of Attorney (included as part of the signature page of the
Registration Statement)*
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99.1
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Eastern Virginia Bankshares, Inc. 2016 Equity Compensation Plan
(incorporated herein by reference to Exhibit 10.28 to the Registrant’s Current Report on Form 8-K filed with the Commission
on May 24, 2016)
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* Filed herewith.
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