Securities Registration: Employee Benefit Plan (s-8)
24 December 2016 - 7:51AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on December 23, 2016
Registration Statement No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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EQUITABLE FINANCIAL CORP.
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(Exact name of registrant as specified in its charter)
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Maryland
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32-0467709
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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113 North Locust Street,
Grand Island, Nebraska
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68801
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(Address of principal executive offices)
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(Zip Code)
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Equitable Financial Corp. 2016 Equity Incentive Plan
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(Full Title of the Plan)
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Mr. Thomas E. Gdowski
President and Chief Executive Officer
113 North Locust Street
Grand Island, Nebraska 68801
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(Name, address and telephone number, including area code, of agent for service)
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(308) 382-3136
(Telephone number, including area code, of agent for service)
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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 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
☐
(Do not check if a smaller reporting company)
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Smaller reporting company
☒
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CALCULATION OF REGISTRATION FEE
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(1)
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(3)
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(3)
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Title of Securities
to be Registered
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Amount to be
Registered
(1)
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Proposed Maximum
Offering Price Per Share
(3)
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Proposed Maximum
Aggregate Offering
Price
(3)
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Amount of
Registration Fee
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Common Stock, $0.01 par value per share
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277,642
(2)
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$9.65
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$2,679,245.30
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$310.52
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(1)
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Includes an indeterminate number of shares which may be necessary to adjust the number of additional shares of Common Stock reserved for issuance pursuant to the Equitable Financial Corp. 2016 Equity Incentive Plan (the "Plan") and being registered herein, as the result of a stock split, stock dividend, reclassification, recapitalization, or similar adjustment(s) of the Common Stock.
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(2)
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Consists of up to 198,316 shares which may be issued upon the exercise of options granted under the Plan and 79,326 shares which may be issued under the plan in the form of restricted stock awards.
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(3)
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Calculated pursuant to Rule 457(c) and 457(h) of the Securities Act on the basis of $9.65 per share, which was the average of the high and low prices of the common stock as quoted on the Nasdaq Capital Market on December 21, 2016.
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This Registration Statement shall become effective automatically upon the date of filing, in accordance with Rule 462(a) under the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2
. Plan Information, and Registrant Information and Employee Plan Annual Information.
The documents containing the information required by Part I of this Registration Statement will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act") and the introductory note to Part I of Form S-8. Such documents are not filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424, in reliance on Rule 428. These documents, and the documents incorporated by reference in the Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3
. Incorporation of Documents by Reference.
Equitable Financial Corp. (the "Company") is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and, accordingly, files periodic reports and other information with the Commission. Reports, proxy statements and other information concerning the Company filed with the Commission may be inspected and copies may be obtained (at prescribed rates) from the Commission's Public Reference Room, 100 F Street, N.E., Washington, D.C. 20549.
The following documents filed by the Company are incorporated in this Registration Statement by reference (excluding any portion of these documents that has been furnished to and deemed not to be filed with the Commission):
(a)
The Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2016 (File No. 001‑37489), filed with the Commission on September 23, 2016 pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(b)
The Current Report on Form 8-K filed with the Commission by the Company on November 18, 2016 (File No. 001-37489);
(c)
The Quarterly Report on Form 10-Q filed with the Commission by the Company on November 10, 2016 (File No. 001-37489);
(d)
The Current Report on Form 8-K filed with the Commission by the Company on October 7, 2016 (File No. 001-37489); and
(e)
The description of the Company’s common stock contained in the Registration Statement on Form 8-A filed with the Commission on July 8, 2015 (File No. 001‑37489).
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act (excluding any portion of these documents that has been furnished to and deemed not to be filed with the Commission), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained 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 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.
None.
Item 6
. Indemnification of Directors and Officers.
Articles 10 and 11 of the Articles of Incorporation of the Corporation set forth circumstances under which directors, officers, employees and agents of the Corporation may be insured or indemnified against liability which they incur in their capacities as such:
ARTICLE 10. Indemnification, etc. of Directors and Officers.
A. Indemnification.
The Corporation shall indemnify (1) its current and former directors and officers, whether serving the Corporation or at its request any other entity, to the fullest extent required or permitted by the [Maryland General Corporation Law (“MGCL”)] now or hereafter in force, and (2) other employees and agents to such extent as shall be authorized by the Board of Directors and permitted by law; provided, however, that, except as provided in Section B of this Article 10 with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred herein shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition, to the fullest extent permitted by law.
B. Procedure.
If a claim under Section A of this Article 10 is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall also be entitled to be reimbursed the expense of prosecuting or defending such suit. It shall be a defense to any action for advancement of expenses that the Corporation has not received both (i) an undertaking as required by law to repay such advances in the event it shall ultimately be determined that the standard of conduct has not been met and (ii) a written affirmation by the indemnitee of his good faith belief that the standard of conduct necessary for indemnification by the Corporation has been met. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met the applicable standard for indemnification set forth in the MGCL. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the MGCL, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article 10 or otherwise shall be on the Corporation.
C. Non-Exclusivity.
The rights to indemnification and to the advancement of expenses conferred in this Article 10 shall not be exclusive of any other right that any Person may have or hereafter acquire under any statute, these Articles, the Corporation’s Bylaws, any agreement, any vote of stockholders or the Board of Directors, or otherwise.
D. Insurance.
The Corporation may maintain insurance, at its expense, to insure itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such Person against such expense, liability or loss under the MGCL.
E. Miscellaneous.
The Corporation shall not be liable for any payment under this Article 10 in connection with a claim made by any indemnitee to the extent such indemnitee has otherwise actually received payment under any insurance policy, agreement, or otherwise, of the amounts otherwise indemnifiable hereunder. The rights to indemnification and to the advancement of expenses conferred in Sections A and B of this Article 10 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.
F. Limitations Imposed by Federal Law
. Notwithstanding any other provision set forth in this Article 10, in no event shall any payments made by the Corporation pursuant to this Article 10 exceed the amount permissible under applicable federal law, including, without limitation, Section 18(k) of the Federal Deposit Insurance Act and the regulations promulgated thereunder.
Any repeal or modification of this Article 10 shall not in any way diminish any rights to indemnification or advancement of expenses of such director or officer or the obligations of the Corporation arising hereunder with respect to events occurring, or claims made, while this Article 10 is in force.
ARTICLE 11. Limitation of Liability.
An officer or director of the Corporation, as such, shall not be liable to the Corporation or its stockholders for money damages, except (A) to the extent that it is proved that the Person actually received an improper benefit or profit in money, property or services, for the amount of the benefit or profit in money, property or services actually received; or (B) to the extent that a judgment or other final adjudication adverse to the Person is entered in a proceeding based on a finding in the proceeding that the Person’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding; or (C) to the extent otherwise provided by the MGCL. If the MGCL is amended to further eliminate or limit the personal liability of officers and directors, then the liability of officers and directors of the Corporation shall be eliminated or limited to the fullest extent permitted by the MGCL, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of such repeal or modification.
Item 7
. Exemption From Registration Claimed.
Not Applicable.
Item 8
. Exhibits.
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Exhibit
Number
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Description
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4.1
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The Company’s Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1, Registration No. 333-202707).
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4.2
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The Company’s Bylaws (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-1, Registration No. 333-202707).
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5.1
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Opinion of Cline Williams Wright Johnson & Oldfather, L.L.P. (filed herewith).
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10.1
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Equitable Financial Corp. 2016 Equity Incentive Plan (filed herewith).
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23.1
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Consent of Cline Williams Wright Johnson & Oldfather, L.L.P. (included in Exhibit 5.1).
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23.2
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Consent of BKD, LLP (filed herewith).
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23.3
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Consent of RSM US LLP (filed herewith).
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24.1
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Power of Attorney (included on signature page of this registration statement).
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Item 9
. Undertakings.
1. To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement 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;
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;
4. 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 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; and
5. 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 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
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 Grand Island, Nebraska, on the 23rd day of December, 2016.
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EQUITABLE FINANCIAL CORP.
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By:
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/s/ Thomas E. Gdowski
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Thomas E. Gdowski
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President and Chief Executive Officer
(Duly Authorized Representative)
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POWER OF ATTORNEY
We, the undersigned directors and officers of Equitable Financial Corp., do hereby severally constitute and appoint Thomas E. Gdowski our true and lawful attorney and agent, to do any and all things and acts in our names in the capacities indicated below and to execute any and all instruments for us and in our names in the capacities indicated below which said Thomas E. Gdowski may deem necessary or advisable to enable Equitable Financial Corp., to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with the Registration Statement on Form S-8 relating to the registrant, including specifically, but not limited to, power and authority to sign, for any of us in our names in the capacities indicated below, the Registration Statement and any and all amendments (including post-effective amendments) thereto; and we hereby ratify and confirm all that said Thomas E. Gdowski 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 below by the following persons in the capacities indicated as of the date indicated.
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/s/ Thomas E. Gdowski
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/s/ Darcy M. Ray
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Thomas E. Gdowski
President, Chief Executive Officer and Director
(Principal Executive Officer)
Date: December 23, 2016
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Darcy M. Ray
Chief Financial Officer
(Principal Accounting and Financial Officer)
Date: December 23, 2016
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/s/ Vincent J. Dugan
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/s/ Levi D. Fisher
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Vincent J. Dugan
Director
Date: December 23, 2016
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Levi D. Fisher
Director
Date: December 23, 2016
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/s/ Gary L. Hedman
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/s/ Pamela L. Price
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Gary L. Hedman
Director
Date: December 23, 2016
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Pamela L. Price
Director
Date: December 23, 2016
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/s/ Jack E. Rasmussen
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/s/ Douglas J. Redman
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Jack E. Rasmussen
Director
Date: December 23, 2016
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Douglas J. Redman
Director
Date: December 23, 2016
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/s/ David L. Richardson
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/s/ Benedict P. Wassinger, Jr.
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David L. Richardson
Director
Date: December 23, 2016
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Benedict P. Wassinger, Jr.
Director
Date: December 23, 2016
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