As filed with the Securities and Exchange Commission on July 19, 2007
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENCORE BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
| Texas | 76-0655696 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
Nine Greenway Plaza, Suite 1000
Houston, Texas 77046
(713) 787-3100
(Address of Principal Executive Offices Including Zip Code)
Encore Bancshares, Inc.
2000 Stock Incentive Plan
(Full title of Plan)
James S. D’Agostino, Jr.
Encore Bancshares, Inc.
Nine Greenway Plaza, Suite 1000
Houston, Texas 77046
(Name and address of agent for service)
(713) 787-3100
(Telephone number, including area code, of agent for service)
Copy to:
Charlotte M. Rasche
Bracewell & Giuliani LLP
711 Louisiana Street, Suite 2300
Houston, Texas 77002-2770
Telephone: (713) 221-1576
Facsimile: (713) 221-2165
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share(1)(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee | ||||
Common Stock, $1.00 par value | 1,489,000 shares | $22.21 | $33,070,690 | $1,015.27 | ||||
| (1) | This Registration Statement also registers an indeterminate number of additional shares of Common Stock of Encore Bancshares, Inc. which may be offered and issued pursuant to the antidilution provisions of the Encore Bancshares, Inc. 2000 Stock Incentive Plan (the “Plan”). |
| (2) | Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) of the Securities Act of 1933, as amended, based upon the average of the high and low prices of the Common Stock on the Nasdaq Global Market on July 18, 2007. |
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 Items 1 and 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8 and Rule 428 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). |
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by Encore Bancshares, Inc., a Texas corporation (the “Company”), (Commission File No. 001-33598) with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement as of their respective dates:
1. The Company’s prospectus dated July 18, 2007 as filed with the SEC pursuant to Rule 424(b) under the Securities Act;
2. The description of the Company’s common stock, par value $1.00 per share, contained in the Company’s Registration Statement on Form 8-A, as filed with the Commission on July 16, 2007, including any amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this Registration Statement and prior to the filing of a post-effective amendment hereto which indicates that all securities offered have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing such documents. Any statement contained herein or in any 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 in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
Generally, Article 2.02-1 of the Texas Business Corporation Act (“TBCA”) permits a corporation to indemnify a person who was, is, or is threatened to be made a named defendant or respondent in a proceeding because the person was or is a director or officer if it is determined that such person (1) conducted himself in good faith, (2) reasonably believed (a) in the case of conduct in his official capacity as a director or officer of the corporation, that his conduct was in the corporation’s best interest, or (b) in other cases, that his conduct was at least not opposed to the corporation’s best interests, and (3) in the case of any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful. In addition, the TBCA requires a corporation to indemnify a director or officer for any action that such director or officer is wholly successful in defending on the merits.
The Company’s amended and restated articles of incorporation provide for indemnification rights to its officers and directors to the maximum extent allowed by Texas law. Pursuant to the TBCA and
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Article 8 of the Company’s amended and restated articles of incorporation, the Company will indemnify and, under certain circumstances, advance expenses to, any person who was, is, or is threatened to be named as, a defendant or respondent in a proceeding because that person is or was one of the Company’s directors or officers or because that person served at the Company’s request as a director, officer, partner or trustee of another corporation, partnership, joint venture, trust or benefit plan. The Company will also pay or reimburse expenses incurred by any director, officer, employee or agent in connection with that person’s appearance as a witness or other participation in a proceeding at a time when that person is not a named defendant or respondent in that proceeding.
Article 2.02-1(R) of the TBCA authorizes a Texas corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or who is or was serving at the request of the corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, employee benefit plan, other enterprise or other entity, against any liability asserted against him and incurred by him in such a capacity or arising out of his status as such a person, whether or not the corporation would have the power to indemnify him against that liability under Article 2.02-1.
Article 8 of the Company’s amended and restated articles of incorporation authorize it to purchase and maintain insurance on behalf of any person who is or was one of the Company’s directors, officers, employees or agents or who is or was serving at the Company’s request as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another business, foreign, domestic or non-profit corporation, partnership, joint venture, sole proprietorship, trust or other enterprise or employee benefit plan, against any liability asserted against that person, whether or not the Company would have the power to indemnify that person against that liability otherwise under the amended and restated articles of incorporation or under Texas law.
The Company’s amended and restated articles of incorporation include provisions that eliminate the personal liability of its directors for monetary damages resulting from breaches of their fiduciary duty to the maximum extent provided by law. The TBCA currently prohibits the elimination of personal liability for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or for any transaction from which the director derived an improper personal benefit.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
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| Item 8. | Exhibits. |
| 3.1 | Amended and Restated Articles of Incorporation of Encore Bancshares, Inc. (incorporated herein by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 (Registration No. 333-142735) (“Form S-1”)). | |
| 3.2 | Articles of Amendment to Articles of Incorporation of Encore Bancshares, Inc. (incorporated herein by reference to Exhibit 3.2 to the Company’s Form S-1). | |
| 3.3 | Amended and Restated Bylaws of Encore Bancshares, Inc. (incorporated herein by reference to Exhibit 3.3 to the Company’s Form S-1). | |
| 4.1 | Form of certificate representing shares of Encore Bancshares, Inc. common stock (incorporated herein by reference to Exhibit 4.1 to the Company’s Form S-1). | |
| 10.1† | Encore Bancshares, Inc. 2000 Stock Incentive Plan, as amended (incorporated herein by reference to Exhibit 10.1 to the Company’s Form S-1). | |
| 10.2† | Form of Encore Bancshares, Inc. Incentive Stock Option Award Terms and Conditions and corresponding notice (incorporated herein by reference to Exhibit 10.2 to the Company’s Form S-1). | |
| 10.3† | Form of Encore Bancshares, Inc. Restricted Stock Award Agreement and corresponding notice (incorporated herein by reference to Exhibit 10.3 to the Company’s Form S-1). | |
| 5.1* | Opinion of Bracewell & Giuliani LLP. as to the validity of the Common Stock registered hereunder. | |
| 23.1* | Consent of Grant Thornton LLP, independent registered public accounting firm. | |
| 23.2* | Consent of Bracewell & Giuliani LLP (included in the opinion filed as Exhibit 5.1 hereto). | |
| 24.1* | Powers of Attorney (included on signature page hereto). | |
| * | Filed herewith. |
| † | Management contract or compensatory plan or arrangement. |
| Item 9. | Undertakings. |
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)
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which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
provided, however,that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
The undersigned registrant further undertakes that, for the 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 on 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.
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 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 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, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas on the 19th day of July, 2007.
| ENCORE BANCSHARES, INC. | ||
(Registrant) | ||
| By: | /s/ James S. D’Agostino, Jr. | |
| James S. D’Agostino, Jr. | ||
| Chairman, President and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints James S. D’Agostino and L. Anderson Creel, with full power to each of them to act without the other, the undersigned’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the undersigned and in the undersigned’s name, place and stead, in any and all capacities (until revoked in writing), to sign this Registration Statement on Form S-8 and any and all amendments (including post-effective amendments) thereto, to file the same, together with all exhibits thereto and documents in connection therewith, with the Commission, to sign any and all applications, registration statements, notices and other documents necessary or advisable to comply with the applicable state securities authorities, granting unto said attorney-in-fact and agent, or his or their substitute or substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as the undersigned might or could do if personally present, thereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their 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 or amendment has been signed by the following persons in the capacities indicated and on the date indicated.
Signature | Title | Date | ||
/s/ James S. D’Agostino, Jr. James S. D’Agostino, Jr. | Chairman of the Board, President and Chief Executive Officer | July 19, 2007 | ||
/s/ L. Anderson Creel L. Anderson Creel | Executive Vice President and Chief Financial Officer | July 19, 2007 | ||
/s/ G. Walter Christopherson G. Walter Christopherson | Director | July 19, 2007 | ||
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/s/ Charles W. Jenness Charles W. Jenness | Director | July 19, 2007 | ||
/s/ John Bryan King John Bryan King | Director | July 19, 2007 | ||
/s/ Walter M. Mischer, Jr. Walter M. Mischer, Jr. | Director | July 19, 2007 | ||
/s/ Edwin E. Smith Edwin E. Smith | Director | July 19, 2007 | ||
/s/ Eugene H. Vaughan Eugene H. Vaughan | Director | July 19, 2007 | ||
/s/ David E. Warden David E. Warden | Director | July 19, 2007 | ||
/s/ Steven A. Webster Steven A. Webster | Director | July 19, 2007 | ||
/s/ Randa Duncan Williams Randa Duncan Williams | Director | July 19, 2007 | ||
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EXHIBIT INDEX
| 3.1 | Amended and Restated Articles of Incorporation of Encore Bancshares, Inc. (incorporated herein by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 (Registration No. 333-142735) (“Form S-1”)). | |
| 3.2 | Articles of Amendment to Articles of Incorporation of Encore Bancshares, Inc. (incorporated herein by reference to Exhibit 3.2 to the Company’s Form S-1). | |
| 3.3 | Amended and Restated Bylaws of Encore Bancshares, Inc. (incorporated herein by reference to Exhibit 3.3 to the Company’s Form S-1). | |
| 4.1 | Form of certificate representing shares of Encore Bancshares, Inc. common stock (incorporated herein by reference to Exhibit 4.1 to the Company’s Form S-1). | |
| 10.1† | Encore Bancshares, Inc. 2000 Stock Incentive Plan, as amended (incorporated herein by reference to Exhibit 10.1 to the Company’s Form S-1). | |
| 10.2† | Form of Encore Bancshares, Inc. Incentive Stock Option Award Terms and Conditions and corresponding notice (incorporated herein by reference to Exhibit 10.2 to the Company’s Form S-1). | |
| 10.3† | Form of Encore Bancshares, Inc. Restricted Stock Award Agreement and corresponding notice (incorporated herein by reference to Exhibit 10.3 to the Company’s Form S-1). | |
| 5.1* | Opinion of Bracewell & Giuliani LLP. as to the validity of the Common Stock registered hereunder. | |
| 23.1* | Consent of Grant Thornton LLP, independent registered public accounting firm. | |
| 23.2* | Consent of Bracewell & Giuliani LLP (included in the opinion filed as Exhibit 5.1 hereto). | |
| 24.1* | Powers of Attorney (included on signature page hereto). | |
| * | Filed herewith. |
| † | Management contract or compensatory plan or arrangement. |
