| As filed with the Securities and Exchange Commission on May 2, 2013 | Registration No. 333-______ |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CORDIA BANCORP INC.
(Exact name of registrant as specified in its charter)
| Virginia | 26-4700031 | |
(State or other jurisdiction of incorporation or organization) | (IRS Employer Identification No.) |
11730 Hull Street Road
Midlothian, Virginia 23112
(804) 744-7576
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Bank of Virginia 2005 Stock Option Plan; Bank of Virginia 2011 Stock Incentive Plan; and certain other equity arrangements
(Full title of the plan)
Jack Zoeller President and Chief Executive Officer 11730 Hull Street Road Midlothian, Virginia 23112 (804) 744-7576 (Name, address, including zip code, and telephone number, including area code, of agent for service) | Copies to: Aaron M. Kaslow, Esq. Kilpatrick Townsend & Stockton LLP 607 14th Street, NW, Suite 900 Washington, DC 20005 (202) 508-5800
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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 126-2 of the Exchange Act. (Check one):
| Large accelerated filer £ | Accelerated filer £ |
| Non-accelerated filer £ (Do not check if a smaller reporting company) | Smaller reporting company /X/ |
| CALCULATION OF REGISTRATION FEE | ||||
Title of securities to be registered | Amount to be registered (1) | Proposed maximum offering price per share (5) | Proposed maximum aggregate offering price | Amount of registration fee |
Common Stock $0.01 par value | 26,560(2) | $5.02 | $133,331 | $ 19 |
Common Stock $0.01 par value | 106,240(3) | $5.02 | $533,325 | $ 73 |
Common Stock $0.01 par value | 609,990(4) | $5.02 | $3,062,150 | $418 |
| (1) | Together with an indeterminate number of additional shares which may be necessary to adjust the number of shares to be issued pursuant to the Bank of Virginia 2005 Stock Option Plan (“2005 Plan”), the Bank of Virginia 2011 Stock Incentive Plan (“2011 Plan”) and certain other equity arrangements as described herein as the result of a stock split, stock dividend or similar adjustment of the outstanding common stock of Cordia Bancorp Inc., as permitted by Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”). |
| (2) | Represents the total number of shares available for issuance under the 2005 Plan, as adjusted to reflect the 1-for-5 reverse stock split of Bank of Virginia and the share exchange with Cordia Bancorp Inc. |
| (3) | Represents the total number of shares available for issuance under the 2011 Plan, as adjusted to reflect the 1-for-5 reverse stock split of Bank of Virginia and the share exchange with Cordia Bancorp Inc. |
| (4) | Represents the total number of shares subject to a nonqualified stock option granted by Cordia Bancorp Inc. in the amount of 20,000 shares and 589,990 shares of restricted stock subject to agreements with the founders of Cordia Bancorp Inc. |
| (5) | Estimated solely for the purpose of computing the registration fee. In accordance with Rule 457(c) and (h) under the Securities Act, the maximum offering price per share is based on the average of the high and the low prices reported on April 30, 2013. |
This Registration Statement shall become effective immediately upon filing in accordance with Section 8(a)
of the Securities Act of 1933, as amended and 17 C.F.R. §230.462.
CORDIA BANCORP INC.
PART IINFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 (Plan Information) and 2 (Registrant Information and Employee Plan Annual Information). The documents containing the information for the 2005 Plan, the 2011 Plan, the nonqualified stock option agreement and the founders shares specified by Part I of this Registration Statement will be sent or given to the participants in the Plan or respective agreement as specified by Rule 428(b)(1). Said documents need not be filed with the Securities and Exchange Commission (the “SEC”) either as a part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424, in reliance on Rule 428. Said documents and the information incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus for the Registration Statement.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed or to be filed by Cordia Bancorp Inc. (the “Registrant” or the “Corporation”) with the SEC are incorporated by reference in this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2012, which contains the audited consolidated statements of financial condition of the Registrant and subsidiary as of December 31, 2012 and 2011 and the consolidated statements of operations, changes in surplus and cash flows for the years ended December 31, 2012 and 2011. The Form 10-K was filed on April 1, 2013 (File No. 001-35852).
(b) The description of the Registrant’s common stock contained in Registrant’s Form 8-K12B, as filed with the SEC on March 29, 2013 pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules promulgated under the Exchange Act.
(c) The Registrant’s Current Report on Form 8-K (other than those portions furnished under items 2.02, 7.01 and 9.01 of the Form 8-K) filed with the SEC on April 2, 2013.
(d) All documents filed by the Registrant pursuant to Sections 13(a), 12(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference to this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that the Corporation is not incorporating by reference any information furnished under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, unless, and only to the extent, specified in any Current Report on Form 8-K.
Any statement contained in this Registration Statement, or 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 which also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such 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. Description of Securities
The Common Stock to be offered pursuant to the Plan has been registered pursuant to Section 12(b) of the Exchange Act. Accordingly, a description of the Common Stock is not required herein.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
The Articles of Incorporation of Cordia Bancorp Inc. provide as follows:
Section 13.1-692.1 of the VSCA permits a corporation to provide in its articles of incorporation that an officer or director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages in any proceeding brought by or in the right of the corpration or brought by or on behalf of shareholders of the corporation for breach of fiduciary duty, except 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, including, without limitation, any claim of unlawful insider trading or manipulation of the market for any security. Cordia’s amended and restated articles of incorporation provide for such limitation of liability.
Sections 13.1-697 and 13.1-702 of the VSCA empower a corporation to indemnify any current or former director or officer made a party to a proceeding because he or she is or was a director or officer against liability incurred in the proceeding; provided that such director or officer conducted himself or herself in good faith; believe, in the case of conduct in his or her official capacity with the corporation, that his or her conduct was in the corporation’s best interest and, in all other cases, that his or her conduct was at least not opposed to the corporation’s best interests; and, in the case of any criminal proceeding, the director or officer had no reasonable cause to believe his or her conduct was unlawful.
Cordia’s amended and restated articles of incorporation provide that Cordia must indemnify its directors and officers to the fullest extent authorized by law. Cordia is also expressly required to advance certain expenses to its directors and officers. Cordia believes that these indemnification provisions are useful to attract and retain qualified directors and executive officers.
Item 7. Exemption from Registration Claimed
None.
Item 8.Exhibits
The following exhibits are filed with or incorporated by reference into this registration statement on Form S-8 (numbering corresponds generally to the Exhibit Table in Item 601 of Regulation S-K).
List of Exhibits (filed herewith unless otherwise noted):
| 4.1 | Amended and Restated Articles of Incorporation of Cordia Bancorp Inc.1 | |
| 4.2 | Bylaws of Cordia Bancorp Inc. 1 | |
| 5.0 | Opinion of Kilpatrick Townsend & Stockton LLP as to the legality of the common stock to be issued |
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| 23.1 | Consent of Kilpatrick Townsend & Stockton LLP (contained in the opinion included as Exhibit 5.0) | |
| 23.2 | Consent of Yount, Hyde & Barbour, P.C. | |
| 24.0 | Power of Attorney (contained on the signature page) | |
| 99.1 | Bank of Virginia 2005 Stock Option Plan1 | |
| 99.2 | Bank of Virginia 2011 Stock Incentive Plan1 | |
| 99.3 | Nonqualified Stock Option of Richard Dickenson1 | |
| 99.4 | Series A Stock Purchase Agreement between Cordia Bancorp Inc. and David C. Bushnell1 | |
| 99.5 | Second Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and Peter W. Grieve1 | |
| 99.6 | Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and Raymond H. Smith, Jr. 1 | |
| 99.7 | Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and Todd S. Thomson1 | |
| 99.8 | Second Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and John P. Wright1 | |
| 99.9 | Second Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and Jack Zoeller1 |
_____________
| 1 | Incorporated by reference to exhibits to the Registrant’s Registration Statement on Form S-4 (File No. 333-186087), as amended, initially filed with the SEC on January 18, 2013. |
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 of 1933; |
| (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 volume and price represent no more than 20 percent 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 the registration statement or any material change to such information in the registration statement. |
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Provided, however, That: Paragraphs (1)(i) and (1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed 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 into 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 initialbona 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.
(4) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference into the registration statement shall be deemed to be a new registration statement related to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fideoffering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange 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 of whether such indemnification by it is against public policy as expressed in such Act and will be governed by the final adjudication of the issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, Cordia Bancorp Inc. 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 Midlothian, Commonwealth of Virginia on this 2ndday of May, 2013.
CORDIA BANCORP INC. | ||
| By: | /s/ Jack Zoeller | |
Jack Zoeller President, Chief Executive Officer and Director (principal executive officer) | ||
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears below (other than Mr. Zoeller) constitutes and appoints Jack Zoeller, as the true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any or all amendments to the Form S-8 registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the United States Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and things requisite and necessary to be done as fully, and to all intents and purposes, as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute, 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.
| Name | Title | Date | ||
| /s/ Jack Zoeller | President, Chief Executive Officer | May 2, 2013 | ||
| Jack Zoeller | and Director | |||
| (principal executive officer) | ||||
| /s/ David C. Bushnell | Acting Chief Financial Officer and | May 2, 2013 | ||
| David C. Bushnell | Director | |||
| (principal financial officer) | ||||
| /s/ Kim Destro | Senior Vice President and | May 2, 2013 | ||
| Kim Destro | Principal Accounting Officer | |||
| (principal accounting officer) | ||||
| /s/ G. Waddy Garratt | Director | May 2, 2013 | ||
| G. Waddy Garratt | ||||
| /s/ Thomas L. Gordon | Director | May 2, 2013 | ||
| Thomas L. Gordon | ||||
| /s/ Peter W. Grieve | Director | May 2, 2013 | ||
| Peter W. Grieve | ||||
| /s/ Hunter R. Hollar | Director | May 2, 2013 | ||
| Hunter R. Hollar | ||||
| /s/ Raymond H. Smith, Jr. | Director | May 2, 2013 | ||
| Raymond H. Smith, Jr. | ||||
| /s/ Todd S. Thomson | Director | May 2, 2013 | ||
| Todd S. Thomson | ||||
| /s/ John P. Wright | Director | May 2, 2013 | ||
| John P. Wright |
EXHIBIT INDEX
| Exhibit No. | Description | Method of Filing | ||
| 5.0 | Opinion of Kilpatrick Townsend & Stockton LLP | Filed herewith. | ||
| 23.1 | Consent of Kilpatrick Townsend & Stockton LLP | Contained in the opinion included as Exhibit 5.0. | ||
| 23.2 | Consent of Yount, Hyde & Barour, P.C. | Filed herewith. | ||
| 24.0 | Power of Attorney | Located on the signature page. | ||
| 99.1 | Bank of Virginia 2005 Stock Option Plan | Incorporated by reference. | ||
| 99.2 | Bank of Virginia 2011 Stock Incentive Plan
| Incorporated by reference. | ||
| 99.3 | Nonqualified Stock Option of Richard Dickenson | Incorporated by reference. | ||
| 99.4 | Series A Stock Purchase Agreement between Cordia Bancorp Inc. and David C. Bushnell | Incorporated by reference. | ||
| 99.5 | Second Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and Peter W. Grieve | Incorporated by reference. | ||
| 99.6 | Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and Raymond H. Smith, Jr. | Incorporated by reference. | ||
| 99.7 | Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and Todd S. Thomson | Incorporated by reference. | ||
| 99.8 | Second Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and John P. Wright | Incorporated by reference. | ||
| 99.9 | Second Amended and Restated Founder Stock Purchase Agreement between Cordia Bancorp Inc. and Jack Zoeller | Incorporated by reference. |
