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Section 1: S-8 (S-8)

 

 

As filed with the Securities and Exchange Commission on June 30, 2016

Registration No. 333-           

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

 

eastern virginia bankshares, inc.

(Exact name of registrant as specified in its charter)

 

 

 

Virginia   54-1866052

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

     
330 Hospital Road    

Tappahannock, Virginia

(Address of principal executive offices)

 

22560

(Zip Code)

 

Eastern Virginia Bankshares, Inc. 2016 Equity compensation plan

(Full title of the plan)

 

Joe A. Shearin

President and Chief Executive Officer

Eastern Virginia Bankshares, Inc.

330 Hospital Road

Tappahannock, Virginia 22560

(804) 443-8400

(Name and address of agent for service)

(Telephone number, including area code, of agent for service)

 

The Commission is requested to mail signed copies of all orders, notices and communications to:

 

Susan S. Ancarrow, Esq.

Troutman Sanders LLP

1001 Haxall Point

P.O. Box 1122

Richmond, Virginia 23218-1122

Telephone: (804) 697-1861

Facsimile: (804) 698-6015

 

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.

 

Large accelerated filer  ¨ Accelerated filer  x
Non-accelerated filer  ¨ (Do not check if a smaller reporting company) Smaller reporting company  ¨

  

CALCULATION OF REGISTRATION FEE

 

 

Title of securities to be registered

  Amount to be
registered(1)
   Proposed maximum
offering price per
share(2)
   Proposed maximum
aggregate offering
price(2)
   Amount of
registration fee
 
Common Stock, par value $2 per share   500,000   $7.21   $3,605,000.00   $363.03 

 

(1)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares of Common Stock, par value $2 per share (“Common Stock”), of Eastern Virginia Bankshares, Inc. (the “Registrant”), which may be offered and issued to prevent dilution resulting from adjustments as a result of stock dividends, stock splits, combinations of shares, spin-offs, recapitalizations, mergers and other capital adjustments.

 

(2)Pursuant to Rule 457(c) and 457(h) of the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price are estimated solely for the purpose of calculating the amount of the registration fee and are based on the average of the high and low prices of the Registrant’s Common Stock as reported on The NASDAQ Stock Market LLC on June 23, 2016.

 

 

 

 

 

  

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

ITEM 1. PLAN INFORMATION.*

 

ITEM 2.REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*

 

*The information specified in Items 1 and 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plan covered by this Registration Statement and as required by Rule 428(b)(1).

 

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PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.INCORPORATION OF DOCUMENTS BY REFERENCE.

 

The following documents filed with the Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement as of their respective dates of filing:

 

(1)The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015 filed with the Commission on March 15, 2016;

 

(2)The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2016 filed with the Commission on May 10, 2016;

 

(3)The Registrant’s Current Reports on Form 8-K filed with the Commission on March 25, 2016 and May 24, 2016; and

 

(4)The description of the Registrant’s Common Stock contained in the Form 8-A12g filed with the Commission on December 29, 1997, in the Registrant’s Bylaws, as amended, filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the Commission on June 14, 2013, and in the Registrant’s Amended and Restated Articles of Incorporation, filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed with the Commission on March 10, 2009, as amended by the Articles of Amendment to the Articles of Incorporation, filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on January 13, 2009, and as further amended by the Articles of Amendment to the Articles of Incorporation, filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Commission on June 14, 2013 (as amended and further amended, the “Articles”), and any further amendment or report filed for the purpose of updating such description.

 

All documents filed subsequent to the date of this Registration Statement by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all shares of Common Stock offered hereby have been sold or which deregisters any shares of such Common Stock then remaining unsold, shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from their respective dates of filing. 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 that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement contained in this Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document which 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.

 

Not applicable.

 

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Item 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS.

 

Virginia law, which includes the Virginia Stock Corporation Act (“VSCA”), permits a Virginia corporation to indemnify any of its directors or officers in certain circumstances. The VSCA permits the Registrant to indemnify any of its directors or officers if he acted in good faith and in a manner which he believed to be in the best interest of the Registrant, and, in the case of a criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. Unless ordered by a court, the Registrant cannot indemnify a director or officer in connection with a proceeding by or in the right of the Registrant except for reasonable expenses incurred in connection with the proceeding if it is determined that he acted in good faith and in a manner which he believed to be in the best interest of the Registrant or in connection with any other proceeding charging improper personal benefit to the director or officer, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that a personal benefit was improperly received by him.

 

Furthermore, unless limited by its articles of incorporation, the VSCA requires a Virginia corporation to indemnify a director or officer who entirely prevails in the defense of any proceeding to which he was a party because he is or was a director or officer of the corporation against reasonable expenses incurred by him in connection with the proceeding.

 

The VSCA also authorizes a Virginia corporation to purchase and maintain insurance on behalf of an individual who is or was a director or officer of a corporation, or who, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or other entity against liability asserted against, or incurred by, him in any such capacity or arising from his status as a director or officer, whether or not the corporation would have the power to indemnify him against such liability as provided above.

 

The VSCA also provides that a Virginia corporation may make any other or further indemnity (including indemnity with respect to a proceeding by or in the right of the corporation), and may make additional provision for advances and reimbursement of expenses, if authorized by its articles of incorporation or shareholder-adopted bylaw or resolution, except an indemnity against willful misconduct or a knowing violation of the criminal law. The Articles provide that, to the full extent permitted by the VSCA, each director and officer shall be indemnified by the Registrant against liabilities, fines, penalties and claims imposed upon or asserted against him (including amounts paid in settlement) by reason of having been such director or officer, whether or not then continuing so to be, and against all expenses (including counsel fees) reasonably incurred by him in connection therewith, except in relation to matters as to which he shall have been finally adjudged liable by reason of his willful misconduct or a knowing violation of criminal law in the performance of his duty as such director or officer. The Articles further provide that the Registrant shall advance expenses incurred by a director or officer in a proceeding, in advance of a final disposition of the proceeding if:

 

·the director or officer furnishes the Registrant a written statement of his good faith belief that he is entitled to indemnification pursuant to the Articles;

 

·the director or officer furnishes the Registrant a written undertaking to repay the advance if it is ultimately determined that he did not meet the standard for indemnification provided in the Articles; and

 

·a determination pursuant to Virginia law is made that the facts then known would not preclude indemnification under the Articles.

 

The VSCA establishes a statutory limit on liability of directors and officers of a Virginia corporation for damages assessed against them in a proceeding brought by or in the right of the corporation or brought by or on behalf of the corporation’s shareholders and authorizes a corporation to specify a lower monetary limit on liability (including the elimination of liability for monetary damages) in the corporation’s articles of incorporation or bylaws; however, the liability of a director or officer shall not be limited if such director or officer engaged in willful misconduct or a knowing violation of the criminal law or of any federal or state securities law. As permitted by the VSCA, the Articles eliminate the liability for monetary damages of a director or officer in a proceeding brought by or in the right of the Registrant or brought by or on behalf of the Registrant’s shareholders. This elimination of liability will not apply in the event of willful misconduct or a knowing violation of criminal law or any federal or state securities law.

 

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The Registrant maintains officers’ and directors’ insurance covering certain liabilities that may be incurred by officers and directors in the performance of their duties.

 

Item 7.EXEMPTION FROM REGISTRATION CLAIMED.

 

Not applicable.

 

Item 8.EXHIBITS.

 

For the list of exhibits, see the Exhibit Index to this Registration Statement, which is incorporated in this item by reference.

 

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;

 

(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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

 

(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, 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, 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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(h)Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to applicable law, the Registrant’s Articles of Incorporation or Bylaws, as such may be amended from time to time, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 County of Essex, Commonwealth of Virginia, on June 30, 2016.

 

 

eastern virginia bankshares, inc.

(Registrant)

     
  By: /s/ Joe A. Shearin
  Name: Joe A. Shearin
  Title: President and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joe A. Shearin and J. Adam Sothen, and each of them, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in his capacity as a director or officer, or both, of Eastern Virginia Bankshares, Inc., to sign any and all amendments (including post-effective amendments) and supplements to this Registration Statement, including any amendment to this Registration Statement for the purpose of registering additional shares in accordance with General Instruction E to Form S-8, and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act necessary or desirable to be done in connection with the above-described matters, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature   Capacity   Date
         
/s/ Joe A. Shearin   President, Chief Executive Officer & Director   June 30, 2016
Joe A. Shearin    (Principal Executive Officer)    
         
/s/ J. Adam Sothen   Executive Vice President & Chief Financial Officer   June 30, 2016
J. Adam Sothen    (Principal Financial and Accounting Officer)    
         
/s/ W. Rand Cook   Director & Chairman of the Board of Directors   June 30, 2016
W. Rand Cook        
         
/s/ F. L. Garrett, III   Director & Vice Chairman of the Board of Directors   June 30, 2016
F. L. Garrett, III        
         
/s/ John F. Biagas   Director   June 30, 2016
John F. Biagas        
         
/s/ W. Gerald Cox   Director   June 30, 2016
W. Gerald Cox        
         
/s/ Michael E. Fiore   Director   June 30, 2016
Michael E. Fiore        
         
/s/ Boris M. Gutin   Director   June 30, 2016
Boris M. Gutin        
         
/s/ Ira C. Harris   Director   June 30, 2016
Ira C. Harris        
         
/s/ Eric A. Johnson   Director   June 30, 2016
Eric A. Johnson        
         
/s/ W. Leslie Kilduff, Jr.   Director   June 30, 2016
W. Leslie Kilduff, Jr.        
         
/s/ Leslie E. Taylor   Director   June 30, 2016
Leslie E. Taylor        
         
/s/ Jay T. Thompson, III   Director   June 30, 2016
Jay T. Thompson, III        

  

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EXHIBIT INDEX

 

Exhibit Number   Description of Exhibit
     
4.1   Amended and Restated Articles of Incorporation of Eastern Virginia Bankshares, Inc., effective December 29, 2008 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed March 10, 2009)
     
4.1.1   Articles of Amendment to the Articles of Incorporation of Eastern Virginia Bankshares, Inc., effective January 6, 2009 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed January 13, 2009)
     
4.1.2   Articles of Amendment to the Articles of Incorporation of Eastern Virginia Bankshares, Inc., effective June 10, 2013 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed June 14, 2013)
     
4.2   Bylaws of Eastern Virginia Bankshares, Inc., as amended June 4, 2013 (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed June 14, 2013)
     
5.1   Opinion of Troutman Sanders LLP with respect to the validity of the Common Stock*
     
23.1   Consent of Troutman Sanders LLP (included as part of Exhibit 5.1 to the Registration Statement)*
     
23.2   Consent of Yount, Hyde & Barbour, P.C.*
     

24.1

 

Powers of Attorney (included as part of the signature page of the Registration Statement)*

     
99.1   Eastern Virginia Bankshares, Inc. 2016 Equity Compensation Plan (incorporated herein by reference to Exhibit 10.28 to the Registrant’s Current Report on Form 8-K filed with the Commission on May 24, 2016)

 

* Filed herewith.

 

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Section 2: EX-5.1 (EXHIBIT 5.1)

 

Exhibit 5.1

 

    TROUTMAN SANDERS LLP
  Attorneys at Law
  1001 Haxall Point
  Richmond, Virginia  23219
  804.697.1200 telephone
  804.697.1339 facsimile
  troutmansanders.com

 

June 30, 2016

 

The Board of Directors

Eastern Virginia Bankshares, Inc.

330 Hospital Road

Tappahannock, Virginia 22560

 

Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Eastern Virginia Bankshares, Inc., a Virginia corporation (the “Corporation”) in connection with the filing by the Corporation of the above-referenced Registration Statement (the “Registration Statement”) with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), whereby 500,000 shares (the “Shares”) of common stock, $2.00 par value per share (the “Common Stock”), of the Corporation are registered to be issued in accordance with the Eastern Virginia Bankshares, Inc. 2016 Equity Compensation Plan, as approved by the Board of Directors of the Corporation (the “Board”) on March 24, 2016, subject to shareholder approval, which was obtained on May 19, 2016 (the “Plan”).

 

This opinion is being furnished in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.

 

We have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, agreements, and other instruments, certificates, orders, opinions, correspondence with public officials, certificates provided by the Corporation’s officers and representatives, and other documents as we have deemed necessary or advisable for the purposes of rendering the opinion set forth herein, including (i) the corporate and organizational documents of the Corporation, including the Articles of Incorporation, as amended to date (the “Articles”), and the Bylaws, as amended to date, (ii) the resolutions (the “Resolutions”) of the Board with respect to the offering and issuance of the Shares under the Plan and certain related matters, (iii) the Plan, (iv) the Registration Statement and exhibits thereto and (v) the prospectus related to the Registration Statement.

 

For purposes of the opinion expressed below, we have assumed (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted as certified, photostatic or electronic copies and the authenticity of the originals thereof, (iii) the legal capacity of natural persons, (iv) the genuineness of signatures not witnessed by us, (v) the due authorization, execution and delivery of all documents by all parties, other than the Corporation, and the validity, binding effect and enforceability thereof and (vi) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed.

  

Atlanta BEIJING CHARLOTTE Chicago Hong Kong New York Orange County Portland RAleigh Richmond San Diego San francisco Shanghai Tysons Corner Virginia Beach Washington, DC

 

  

 

 

The Board of Directors

Eastern Virginia Bankshares, Inc.

June 30, 2016

Page 2

 

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when and if issued in accordance with the Articles, the Plan, the Registration Statement and the Resolutions (assuming that, upon any issuance of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Corporation is then authorized to issue under the Articles), the Shares will be validly issued, fully paid and nonassessable.

 

We are members of the bar of the Commonwealth of Virginia and are not purporting to be experts on, or generally familiar with, or qualified to express legal conclusions based upon, laws of any state or jurisdiction other than the federal laws of the United States of America and the Commonwealth of Virginia and we express no opinion as to the effect of the laws of any other jurisdiction or as to the securities or blue sky laws of any state (including, without limitation, Virginia), municipal law or the laws of any local agencies within any state (including, without limitation, Virginia). This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.

 

Our opinion is as of the date hereof and we have no responsibility to update this opinion for events and circumstances occurring after the date hereof or as to facts relating to prior events that are subsequently brought to our attention and we disavow any undertaking to advise you of any changes in law.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.  In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules or regulations of the Commission promulgated thereunder.

 

  Very truly yours,
   
  /s/ Troutman Sanders LLP

 

 

 

 

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Section 3: EX-23.2 (EXHIBIT 23.2)

 

Exhibit 23.2

 

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 relating to the Eastern Virginia Bankshares, Inc. 2016 Equity Compensation Plan of our reports dated March 15, 2016, relating to our audits of the consolidated financial statements and internal control over financial reporting, which appear in the Annual Report on Form 10-K of Eastern Virginia Bankshares, Inc. for the year ended December 31, 2015.

 

 

 

Winchester, Virginia

June 30, 2016

 

 

 

 

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