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As filed with the Securities and Exchange Commission on December 29, 1997
Registration No. 333------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ENTERBANK HOLDINGS, INC.
------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 43-1706259
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
150 NORTH MERAMAC
CLAYTON, MISSOURI 63105
(314) 725-5500
--------------
(Address, Including Zip Code and Telephone Number,
of Principal Executive Offices)
ENTERPRISE BANK INCENTIVE STOCK OPTION PLAN
ENTERPRISE BANK SECOND INCENTIVE STOCK OPTION PLAN
ENTERBANK HOLDINGS, INC. THIRD INCENTIVE STOCK OPTION PLAN
----------------------------------------------------------
(Full title of the plans)
Copy To:
FRED H. ELLER JOSEPH T. PORTER, JR.
ENTERBANK HOLDINGS, INC. POLSINELLI, WHITE, VARDEMAN & SHALTON,
P.C.
150 NORTH MERAMAC 100 S. FOURTH STREET STE. 1110
CLAYTON, MISSOURI 63105 ST. LOUIS, MISSOURI 63102
(314) 725-5500 (314) 231-1812
-------------- --------------
(Name, Address, and Telephone Number,
Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------
Title of securities to be registered Proposed Proposed maximum Amount of
Amount of shares maximum offering aggregate offering registration
to be registered<F1> price per share<F2> price<F2> fee
- ---------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 144,000 shares<F3> $7.00 $1,008,000 $300.00
Common Stock, par value $.01 per share 75,000 shares<F4> $7.00 $525,000 $160.00
Common Stock, par value $.01 per share 200,000 shares<F5> $16.00 $3,200,000 $950.00
------- ---------- -------
TOTAL: 419,000 shares $4,733,000 $1,410.00
- ---------------------------------------------------------------------------------------------------------------------------------
<FN>
<F1> Plus such additional indeterminate number of shares as may be issuable
pursuant to the anti-dilution provisions of the Plans.
<F2> Estimated solely for the purpose of determining the amount of the
registration fee in accordance with Rule 457(c) and 457(h) and based
on the maximum price at which the options may be exercised as
determined by the Board of Directors of the Registrant.
<F3> Represents shares issuable upon the exercise of stock options issued
pursuant to the Enterprise Bank Incentive Stock Option Plan.
<F4> Represents shares issuable upon the exercise of stock options issued
pursuant to the Enterprise Bank Second Incentive Stock Option Plan.
<F5> Represents shares issuable upon the exercise of stock options issued
pursuant to the Enterbank Holdings, Inc. Third Incentive Stock Option
Plan.
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INTRODUCTION
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This Registration Statement on Form S-8 is filed by Enterbank Holdings,
Inc., a Delaware corporation (the "Registrant"), relating to shares of its
common stock, par value $.01 per share ("Common Stock"), issuable pursuant to
(i) the Enterprise Bank Incentive Stock Option Plan, as amended (the "First
Option Plan"), of its wholly-owned subsidiary, Enterprise Bank, a Missouri
banking corporation ("Enterprise Bank"), (ii) the Enterprise Bank Second
Incentive Stock Option Plan, as amended (the "Second Option Plan"), and (iii)
the Enterbank Holdings, Inc. Third Incentive Stock Option Plan (the "Third
Option Plan" and together with the First Option Plan and the Second Option
Plan, the "Plans").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
----------------
Information required by Item 1 of Part I of Form S-8 to be contained in
the Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended ("1933
Act"), and the Note to Part I of Form S-8.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
-------------------------------------------------------------
Information required by Item 2 of Part I of Form S-8 to be contained in
the Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the 1933 Act and the Note to Part I of Form
S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents, which previously have been filed by the
Registrant with the Securities and Exchange Commission ("Commission"), are
incorporated herein by reference and made a part hereof:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 filed pursuant
to Section 13(a) of the Securities Exchange Act of
1934, as amended ("Exchange Act");
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the Form 10-K;
(c) The class of securities to be offered is not
registered under Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities offered
hereunder 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 a document all or a portion of which is
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 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, except as so modified or amended, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
The authorized capital stock of the Registrant consists of
3,000,000 shares of common stock, par value $.01 per share ("Common Stock").
Reference is made to the Registrant's Certificate of Incorporation, as
amended (incorporated herein by reference from Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 dated December 19, 1996
(Registration No. 333-14737)) for a detailed description of the provisions
thereof summarized below.
Holders of shares of Common Stock are entitled to receive
dividends as may from time to time be declared by the Board of Directors of
the Registrant out of funds legally available therefor. Holders of Common
Stock are entitled to one vote per share on all matters on which the holders
of Common Stock are
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entitled to vote and may cumulate their votes in any election of directors.
Holders of Common Stock have no preemptive, conversion, redemption or sinking
fund rights. In the event of a liquidation, dissolution or winding up of the
Registrant, holders of Common Stock are entitled to share ratably in the
assets of the Registrant, if any, remaining after payment of all debts and
liabilities of the Registrant. The shares of Common Stock offered by the
Registrant hereby will be fully paid and nonassessable when issued. There is
no established public trading market for the Common Stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Registrant's By-Laws provide that each person who was or is
made a party to, or is involved in, any action, suit, or proceeding by reason
of the fact that such person is or was a director or officer of the
Registrant will be indemnified and held harmless by the Registrant to the
full extent authorized by the Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law provides as
follows:
"INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS; INSURANCE
"(a) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe such person's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith and
in a manner which such person reasonably believed to be in or not opposed to
the best interests of the corporation, and with respect to any criminal
action or proceeding, had reasonable cause to believe that such person's
conduct was unlawful.
"(b) A corporation may indemnify any person who was or is party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director,
officer, employee or agent
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of the corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
"(c) To the extent that a present or former director or officer
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection therewith.
"(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of
the present or former director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct
set forth in subsections (a) and (b). Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors,
even though less than a quorum, or (3) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion,
or (4) by the stockholders.
"(e) Expenses (including attorneys' fees) incurred by an officer
or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the corporation as authorized in this
section. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
"(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
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"(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
corporation would have the power to indemnify such person against such
liability under this section.
"(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed
in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with respect
to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had
continued.
"(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in
good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests
of the corporation" as referred to in this section.
"(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of a person.
"(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise the Court of
Chancery may summarily determine a corporation's obligation to advance
expenses (including attorneys' fees)."
Pursuant to the Registrant's Certificate of Incorporation, no
director of the Registrant shall be personally liable to the Registrant or
its stockholders for monetary damages for any breach of fiduciary duty as a
director. The Certificate of Incorporation further provides, however, that a
director shall be liable to the
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extent provided by applicable law (i) for any breach of the director's duty
of loyalty to the Registrant or its stockholders; (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) pursuant to Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which such director derived
an improper personal benefit. No amendment or repeal of this provision in
the Certificate of Incorporation may adversely affect any right or protection
of any director of the Registrant existing at the time of such amendment or
repeal for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
The Registrant may purchase and maintain, and currently does so
maintain, insurance on behalf of its officers and directors against liability
asserted against any of them and incurred by them in such capacity, or
arising out of their status as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation of the Registrant, as
amended, (incorporated herein by reference from
Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 dated December 19, 1996
(Registration No. 333-14737).
4.2 Bylaws of the Registrant, as amended, (incorporated
herein by reference from Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1
dated December 19, 1996 (Registration No.
333-14737).
<F*>4.3 Enterprise Bank Incentive Stock Option Plan
<F*>4.4 Enterprise Bank Second Incentive Stock Option Plan
<F*>4.5 Enterbank Holdings, Inc. Third Incentive Stock Option
Plan
<F*>5 Opinion of Polsinelli, White, Vardeman & Shalton, P.C.
as to the legality of the securities being registered.
<F*>23.1 Consent of Polsinelli, White, Vardeman & Shalton, P.C.
(included in Exhibit 5 hereto).
<F*>23.2 Consent of KPMG Peat Marwick LLP.
<F*>24 Power of Attorney (reference is made to page II-8
hereof).
<FN>
<F*>Filed herewith.
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ITEM 9. UNDERTAKINGS.
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(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 of 1933, as amended (the
"1933 Act");
(ii) to reflect in the prospectus any facts or event
arising after the effective date of this 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 this 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 paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if this registration statement is on
Form S-3, Form S-8 or Form F-3, and 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 pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated
by reference in this registration statement.
2. That, for the purpose of determining any liability
under the 1933 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 1933 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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(c) Insofar as indemnification for liabilities arising under the
1933 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 1933 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 1933 Act
and will be governed by the final adjudication of such issue.
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Exhibit 24
SIGNATURES
The Registrant. 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 Clayton, State of Missouri, on
December 29, 1997.
ENTERBANK HOLDINGS, INC. ENTERBANK HOLDINGS, INC.
By: /s/ James C. Wagner By: /s/ Fred H. Eller
----------------------------- ---------------------------
James C. Wagner Fred H. Eller
Chief Financial Officer Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Enterbank Holdings, Inc.,
hereby severally constitute and appoint Fred H. Eller and James C. Wagner and
each of them, our true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for each of us in our name, place,
and stead, in any and all capacities, to sign Enterbank Holdings, Inc.'s
Registration Statement on Form S-8, and any other Registration Statement
relating to the same offering, and any and all amendments thereto (including
post-effective amendments), and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grant to such attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and
purposes as each of us might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them 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 has been signed by the following persons in the
capacities indicated and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Fred H. Eller Chief Executive Officer December 29, 1997
- ----------------------------- and Director
Fred H. Eller
/s/ Ronald E. Henges Chairman of the Board December 29, 1997
- ----------------------------- of Directors
Ronald E. Henges
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/s/ Kevin C. Eichner Director December 29, 1997
- -----------------------------
Kevin C. Eichner
/s/ Paul R. Cahn Director December 29, 1997
- -----------------------------
Paul R. Cahn
/s/ Birch M. Mullins Director December 29, 1997
- -----------------------------
Birch M. Mullins
/s/ Robert E. Saur Director December 29, 1997
- -----------------------------
Robert E. Saur
/s/ James A. Williams Director December 29, 1997
- -----------------------------
James A. Williams
/s/ Henry D. Warshaw Director December 29, 1997
- -----------------------------
Henry D. Warshaw
/s/ James L. Wilhite Director December 29, 1997
- -----------------------------
James L. Wilhite
/s/ Ted C. Wetterau Director December 29, 1997
- -----------------------------
Ted C. Wetterau
/s/ Randall D. Humphreys Director December 29, 1997
- -----------------------------
Randall D. Humphreys
/s/ James C. Wagner Director December 29, 1997
- -----------------------------
James C. Wagner
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