As filed with the Securities and Exchange Commission on July 13, 2016
Registration No. 333-179824
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EASTERN VIRGINIA BANKSHARES, INC. (Exact name of registrant as specified in its charter) |
Virginia (State or other jurisdiction of incorporation or organization) | 54-1866052 (I.R.S. Employer Identification No.) |
330 Hospital Road Tappahannock, Virginia (Address of Principal Executive Offices) | 22560 (Zip Code) |
EASTERN VIRGINIA BANKSHARES, INC. AMENDED AND RESTATED EMPLOYEE
STOCK PURCHASE 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.
| Large accelerated filer ¨ | Accelerated filer x |
Non-accelerated filer ¨ (Do not check if a smaller reporting company) | Smaller reporting company ¨ |
The registrant is not registering additional securities. The registrant previously paid a registration fee of $1.00 in relation to the registration of shares of common stock, $2.00 par value per share, with a maximum aggregate offering price of $2,723 under the registrant’s original Registration Statement on Form S-8 (file no. 333-179824) filed with the Commission on March 1, 2012. Consequently, no additional registration fees are required with respect to the filing of this Post-Effective Amendment No. 1.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (file no. 333-179824) is being filed for the purpose of updating exhibits to the Registration Statement to reflect changes in the administration of the Eastern Virginia Bankshares, Inc. Amended and Restated Employee Stock Purchase Plan.
Part I — Information Required in the Section 10(a) Prospectus
| Item 1. | Plan Information.* |
| Item 2. | Registrant Information and Employee Plan Annual Information.* |
| * | The information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8 and Rule 428. |
Part II — Information Required in the Registration Statement
| Item 3. | Incorporation of Documents by Reference. |
Eastern Virginia Bankshares, Inc. (the “Corporation”) hereby incorporates by reference into this Registration Statement the following documents:
| (a) | The Corporation’s Annual Report on Form 10-K for the year ended December 31, 2015, filed with the Securities and Exchange Commission (the “Commission”) on March 15, 2016; |
| (b) | The Corporation’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed with the Commission on May 10, 2016; |
| (c) | The Corporation’s Current Reports on Form 8-K filed with the Commission on March 25, 2016 and May 24, 2016; |
| (d) | All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) by the Corporation since December 31, 2014; and |
| (e) | The description of the Corporation’s capital stock contained (i) in the Form 8-A12g filed with the Commission on December 29, 1997, (ii) in the Corporation’s Bylaws, as amended, filed as Exhibit 3.2 to the Corporation’s Current Report on Form 8-K filed with the Commission on June 14, 2013, and (iii) in the Corporation’s Amended and Restated Articles of Incorporation, filed as Exhibit 3.1 to the Corporation’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 Corporation’s Current Report on Form 8-K filed with the Commission on January 13, 2009 and the Articles of Amendment to the Articles of Incorporation, filed as Exhibit 3.1 to the Corporation’s Current Report on Form 8-K filed with the Commission on June 14, 2013 (collectively, the “Articles of Incorporation”). |
All documents filed by the Corporation subsequent to the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, and prior to the filing of a post-effective amendment hereto which either indicates that all securities offered hereby have been sold or deregisters all such securities 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 in this Registration Statement, or in a document incorporated or deemed incorporated herein, 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.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
The Articles of Incorporation of the Corporation provide that the Corporation shall, to the full extent permitted by Virginia law (which includes the Virginia Stock Corporation Act (“VSCA”)), indemnify against liability a director or officer of the Corporation who is or was a party to any proceeding by reason of the fact that he is or was such a director or officer or is or was serving at the Corporation’s request as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The VSCA permits a corporation to indemnify its directors and officers against liability incurred in all proceedings, including derivative proceedings, arising out of their service to the corporation or to other corporations or enterprises that the director or officer was serving at the request of the corporation, except in the case of willful misconduct or a knowing violation of a criminal law. The Corporation is required to indemnify its directors and officers in all such proceedings if they have not violated this standard.
Under the VSCA, a Virginia corporation may not indemnify a director or officer for an adverse judgment in a proceeding by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for reasonable expenses.
The Corporation’s Articles of Incorporation also eliminate the personal liability of directors and officers to the Corporation or its shareholders for monetary damages to the full extent permitted by Virginia law.
In addition, the Articles of Incorporation of the Corporation provide that the Corporation shall advance expenses incurred by a director or officer in a proceeding, in advance of a final disposition of the proceeding, if:
· the director or officer furnishes the Corporation a written statement of his good faith belief that he is entitled to indemnification pursuant to the Articles of Incorporation;
· the director or officer furnishes the Corporation 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 of Incorporation; and
· a determination pursuant to Virginia law is made that the facts then known would not preclude indemnification under the Articles of Incorporation.
The indemnification provided by the Corporation’s Articles of Incorporation is not exclusive of any right to indemnification to which a 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.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
An Exhibit Index appears at page 7 hereof and is incorporated by reference herein.
| (a) | The undersigned registrant hereby undertakes: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
| (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. Notwithstanding the foregoing, any increase or decrease in the 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 the volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; |
| (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; |
Provided, however,that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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.
(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 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.
(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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the County of Essex, Commonwealth of Virginia, on July 13, 2016.
| | Eastern Virginia Bankshares, Inc. |
| | |
| | By: | /s/ Joe A. Shearin |
| | | Joe A. Shearin |
| | | President & Chief Executive Officer |
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, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| | | Capacity | | Date |
| | | | | |
| /s/ Joe A. Shearin | | President, Chief Executive Officer & Director | | July 13, 2016 |
| Joe A. Shearin | | (Principal Executive Officer) | | |
| | | | | |
| /s/ J. Adam Sothen | | Executive Vice President & Chief Financial Officer | | July 13, 2016 |
| J. Adam Sothen | | (Principal Financial and Accounting Officer) | | |
| /s/ W. Rand Cook | | Director & Chairman of the | | July 13, 2016 |
| W. Rand Cook | | Board of Directors | | |
| | | | | |
| * | | Director & Vice Chairman of the Board of Directors | | July 13, 2016 |
| F.L. Garrett III | | | | |
| | | | | |
| /s/ John F. Biagas | | Director | | July 13, 2016 |
| John F. Biagas | | | | |
| | | | | |
| * | | Director | | July 13, 2016 |
| W. Gerald Cox | | | | |
| | | | | |
| * | | Director | | July 13, 2016 |
| Michael E. Fiore | | | | |
| | | | | |
| /s/ Boris M. Gutin | | Director | | July 13, 2016 |
| Boris M. Gutin | | | | |
| | | | | |
| * | | Director | | July 13, 2016 |
| Ira C. Harris | | | | |
| | | | | |
| * | | Director | | July 13, 2016 |
| Eric A. Johnson | | | | |
| | | | | |
| * | | Director | | July 13, 2016 |
| W. Leslie Kilduff, Jr. | | | | |
| | | | | |
| * | | Director | | July 13, 2016 |
| Leslie E. Taylor | | | | |
| | | | | |
| * | | Director | | July 13, 2016 |
| Jay T. Thompson, III | | | | |
| By: | /s/ Joe A. Shearin | |
| | Joe A. Shearin | |
| | Attorney-in-Fact | |
EXHIBIT INDEX
| Exhibit | | |
| No. | | Description |
| | | |
| 5.1 | | Opinion of Troutman Sanders LLP with respect to the validity of the Common Stock. |
| | | |
| 23.1 | | Consent of Troutman Sanders LLP (contained in Exhibit 5.1 hereto). |
| | | |
| 23.2 | | Consent of Yount, Hyde & Barbour, P.C. |
| | | |
| 24.1 | | Powers of Attorney (included on the signature page of this Registration Statement). |
| | | |
| 99.1 | | Eastern Virginia Bankshares, Inc. Amended and Restated Employee Stock Purchase Plan. |
| | | |
| 99.2 | | Form of Eastern Virginia Bankshares, Inc. Amended and Restated Employee Stock Purchase Plan Enrollment Form. |
