As filed with the Securities
and Exchange Commission on June 5, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
FIRST FOUNDATION INC.
(Exact name of registrant
as specified in its charter)
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| Delaware |
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20-8639702 |
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(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
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200 Crescent Court, Suite 1400
Dallas, Texas |
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75201 |
| (Address of principal executive offices) |
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(Zip Code) |
First Foundation Inc.
2024 Equity Incentive Plan
(Full title of plan)
Erica Dorsett
Executive Vice President,
General Counsel
First Foundation Inc.
200 Crescent Court,
Suite 1400
Dallas, Texas 75201
(469) 638-9636
(Name, address, including
zip code, and telephone number, including area code of agent for service)
With copies to:
Joshua A. Dean, Esq.
Sheppard, Mullin,
Richter & Hampton LLP
650 Town Center Drive,
Tenth Floor
Costa Mesa, California
92626
(714) 513-5100
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
Part I
INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and
Employee Plan Annual Information.*
* The documents containing
the information specified in Part I will be sent or given to participants as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the U.S. Securities and
Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under
the Securities Act.
Part II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents
by Reference.
The following documents
filed by First Foundation Inc. (the “Company”) with the Commission are hereby incorporated by reference in this Registration
Statement:
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The description of the Company’s common stock contained in the registration statement on Form 8-A, filed with the Commission on May 19, 2014, as amended by the registration statement on Form 8-A/A (Amendment No. 1), filed with the Commission on October 30, 2015, as the description therein has been updated and superseded by the description of the Company’s common stock contained in Exhibit 4.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the Commission on March 2, 2020, and 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 Exchange Act prior to the filing of a post-effective amendment
that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, are incorporated
by reference in this Registration Statement and are a part hereof from the date of filing such documents.
Any statement contained
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 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 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 Officers
and Directors.
Section 145 of the
Delaware General Corporation Law (the “DGCL”) permits the Company to indemnify its directors, officers, employees and agents,
or other persons who are or were serving at the Company’s request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (referred to as an “indemnitee”), against expenses, including attorneys’
fees, judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or
proceeding brought by third parties. The indemnitee must have acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reason to believe their
conduct was unlawful. In a derivative action, an action only by or in the Company’s right, indemnification may be made only for
expenses actually and reasonably incurred by the indemnitee in connection with the defense or settlement of an action or suit, and only
with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the Company. No indemnification shall be made if such person shall have been adjudged liable to the Company,
unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant
indemnitee is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. Section 145(g) of
the DGCL also provides that the Company may maintain insurance against liabilities even if the Company would lack the power under the
DGCL to indemnify against those liabilities.
Article VI of the
Company’s Bylaws provides that the Company will indemnify, to the fullest extent permitted by the DGCL, 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, arbitrative, investigative or other (a “Proceeding”), other than an action by or in the Company’s right,
by reason of the fact that such person is or was a director or officer of the Company, or while such person is or was a director or officer
of the Company, is or was serving at the Company’s request as a director, officer, employee, member, manager, trustee or agent of
another corporation, limited liability company, partnership, joint venture, trust, nonprofit entity or other enterprise, including service
with respect to employee benefit plans, against expenses (including attorneys’ fees), damages, losses, liabilities, judgments, fines,
penalties, ERISA excise taxes, amounts paid or payable in settlement, any federal, state, local or foreign taxes, and all other charges
paid or payable by such person in connection with the defense or settlement of such Proceeding if such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the Company’s best interests, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
The Company’s Bylaws
further state that this indemnification shall not be deemed exclusive of any other rights to which the indemnified person may be entitled,
and shall 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 that person.
Article VIII of
the Company’s Certificate of Incorporation includes provisions regarding indemnification of directors and officers of the Company
which are similar to those contained in Article VI of the Company’s Bylaws.
The Company has entered
into indemnification agreements with its directors and executive officers. Those indemnification agreements require that the Company,
among other things, (i) indemnify its directors and officers against certain liabilities that may arise by reason of their status
or service as directors or officers (other than liabilities arising from actions not taken in good faith or in a manner the indemnitee
believed to be opposed to the Company’s best interests), (ii) advance the expenses such directors or executive officers may
incur as a result of or in connection with the defense of any proceeding brought against them as to which they could be indemnified, subject
to an undertaking by the indemnified party to repay such advances if it is ultimately determined that he or she is not entitled to indemnification,
and (iii) obtain officers’ & directors’ liability insurance if available on reasonable terms.
The Company maintains
standard policies of insurance under which coverage is provided (a) to directors and officers of the Company against loss arising
from claims made by reason of breach of duty or other wrongful act, and (b) to the Company with respect to payments which may be
made by it to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to the registrant’s directors, officers or controlling
persons pursuant to the foregoing provisions, the Company has been informed that, in the opinion of the Commission, such indemnification
is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In addition, indemnification for
violations of state securities laws may be limited by applicable laws.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration
Statement:
Item 9. Undertakings.
(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;
(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 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 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 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.
(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.
(b) 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 Exchange Act (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 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.
(c) 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 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.
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 Dallas, Texas, on June 5, 2024.
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FIRST FOUNDATION INC. |
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By |
/s/ SCOTT F. KAVANAUGH |
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Scott F. Kavanaugh |
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Chief Executive Officer |
POWER OF ATTORNEY
The officers and directors
of First Foundation Inc. whose signatures appear below hereby constitute and appoint Scott F. Kavanaugh, Ulrich E. Keller, Jr. and
James Britton, and each of them, their true and lawful attorneys and agents, with full power of substitution, each with power to act alone,
to sign and execute on behalf of the undersigned any amendment or amendments to this Registration Statement on Form S-8, and
to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto each of said attorneys-in-fact and agents full power and authority to do everything necessary to accomplish the
foregoing, as fully to all intents and purposes as he or she might or could do in person, and each of the undersigned does hereby ratify
and confirm all that each of said attorneys and agents, or their substitutes, shall 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 on behalf of the registrant in the
capacities and on the date indicated.
| SIGNATURE |
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TITLE |
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DATE |
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| /s/ SCOTT F. KAVANAUGH |
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Chief Executive Officer and Director |
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June 5, 2024 |
| Scott F. Kavanaugh |
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(Principal Executive Officer) |
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| /s/ JAMES BRITTON |
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Chief Financial Officer |
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June 5, 2024 |
| James Britton |
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(Principal Financial and Accounting Officer) |
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| /s/ ULRICH E. KELLER, JR. |
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Chairman and Director |
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June 5, 2024 |
| Ulrich E. Keller, Jr. |
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| /s/ MAX BRIGGS |
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Director |
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June 5, 2024 |
| Max Briggs |
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| /s/ JOHN HAKOPIAN |
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Director |
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June 5, 2024 |
| John Hakopian |
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| /s/ DAVID LAKE |
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Director |
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June 5, 2024 |
| David Lake |
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| /s/ ELIZABETH PAGLIARINI |
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Director |
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June 5, 2024 |
| Elizabeth Pagliarini |
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| /s/ MITCHELL ROSENBERG |
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Director |
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June 5, 2024 |
| Mitchell Rosenberg |
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| /s/DIANE RUBIN |
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Director |
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June 5, 2024 |
| Diane Rubin |
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| /s/ JACOB SONENSHINE |
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Director |
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June 5, 2024 |
| Jacob Sonenshine |
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| /s/ GABRIEL VAZQUEZ |
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Director |
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June 5, 2024 |
| Gabriel Vazquez |
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Exhibit 5.1
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Sheppard, Mullin, Richter & Hampton LLP
650 Town Center Drive, 10th Floor
Costa Mesa, California 92626-1993
714.513.5100 main
714.513.5130 fax
www.sheppardmullin.com |
June 5, 2024
First Foundation Inc.
200 Crescent Court, Suite 1400
Dallas, Texas 75201
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion
with respect to certain matters in connection with the filing by First Foundation Inc., a Delaware corporation (the “Company”),
of a Registration Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the
“Securities Act”), with the Securities and Exchange Commission (the “Commission”), registering an aggregate of
1,500,000 shares of common stock, par value $0.001 per share, of the Company (the “Shares”), which may be issued by the Company
pursuant to its First Foundation Inc. 2024 Equity Incentive Plan (the “Plan”). This Opinion is being furnished in accordance
with the requirements of Item 601(b)(5)(i) of Regulation S-K of the Securities Act, and no opinion is expressed herein as to any
matter pertaining to the contents of the Registration Statement, other than as to the validity of the Shares.
As
counsel to the Company, we have reviewed certain corporate proceedings taken by the Company with respect to the authorization of the issuance
of the Shares and the adoption of the Plan. We have also examined and relied upon originals or copies, certified or otherwise authenticated
to our satisfaction, of such corporate records, documents, agreements or other instruments of the Company and of public officials as we
have deemed necessary or advisable for purposes of this opinion. As to all matters of fact (including factual conclusions and characterizations
and descriptions of purpose, intention or other state of mind) we have entirely relied upon certificates of officers of the Company, and
have assumed, without independent inquiry, the accuracy of those certificates.
We
have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity
and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing
a document.
Subject
to the foregoing, it is our opinion that the Shares to be issued by the Company under the Plan have been duly authorized and, when issued
in accordance with the terms of the Plan and any applicable award agreements, will be validly issued, fully paid and nonassessable.
This
opinion is limited to the laws of the State of Delaware and no opinion is expressed as to the laws of any other jurisdiction. This opinion
is as of the date hereof and its based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any
obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any
matters or opinions set forth herein.
We
hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving such consent,
we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission.
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Respectfully
submitted, |
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/s/
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP |
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SHEPPARD,
MULLIN, RICHTER & HAMPTON LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference
in the registration statement on Form S-8 of First Foundation Inc. of our reports dated February 28, 2024, relating to the consolidated
financial statements and the effectiveness of internal control over financial reporting of First Foundation Inc., which appear in the
Annual Report on Form 10-K of First Foundation Inc. for the year ended December 31, 2023.
/s/ Eide Bailly LLP
Laguna Hills, California
June 5, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
First Foundation Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type | |
Security Class
Title | |
Fee
Calculation
Rule | |
Amount
Registered
(1) | | |
Proposed
Maximum
Offering Price
Per Unit | | |
Maximum
Aggregate
Offering Price | | |
Fee Rate | | |
Amount
of
Registration
Fee | |
| Equity(1) | |
Common Stock,
$0.001 par value
per share | |
Rule 457(c) and
Rule 457(h) | |
| 1,500,000 | | |
$ | 5.90 | (2) | |
$ | 8,850,000 | (2) | |
$ | 0.00014760 | | |
$ | 1,306.26 | |
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Total Offering Amounts | |
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$ | 8,850,000 | | |
| | | |
$ | 1,306.26 | |
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Total Fee Offsets | |
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| — | |
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Net Fee Due | |
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$ | 1,306.26 | |
| (1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the Registrant’s common stock, $0.001 par value per share (the “Common Stock”), that become issuable under the First Foundation Inc. 2024 Equity Incentive Plan, by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the Registrant’s receipt of consideration, which results in an increase in the number of outstanding shares of Common Stock. |
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| (2) |
For purposes of computing the registration fee only. Pursuant to Rule 457(c) and (h), the Proposed Maximum Offering Price Per Share is based upon the average of the high and low prices for the Registrant’s Common Stock on the New York Stock Exchange on May 31, 2024. |
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