As filed with the Securities and Exchange Commission on May 29, 2020

 

Registration No. 333-

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

Eagle Bancorp Montana, Inc.

___________________________________________________

(Exact name of Registrant as specified in its charter)

 

Delaware   27-1449820
(State or other jurisdiction   (I.R.S. Employer
of incorporation or organization)   Identification No.)
     
1400 Prospect Avenue    
Helena, Montana   59601
(Address of Principal Executive Offices)   (Zip Code)

 

 

2020 NON-EMPLOYEE DIRECTOR AWARD PLAN

(Full title of the Plan)

 

 

Peter J. Johnson

President and Chief Executive Officer

Eagle Bancorp Montana, Inc.

1400 Prospect Avenue

Helena, Montana 59601

(406) 442-3080

 

(Name, address, including zip code, and telephone

number, including area code, of agent for service)

 

Copy to:

Lloyd H. Spencer, Esq.

Nixon Peabody LLP

799 9th Street NW, Suite 500

Washington, D.C. 20001

(202) 585-8000

 

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.

 

Large accelerated filer ☐   Accelerated filer ☒
Non-accelerated filer   ☐   Smaller reporting company ☒
    Emerging growth company ☐

     

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. ☐

 

 

 

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 $0.01 per share

13,000

$16.79

$218,270

$28.33

 

(1)

Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2020 Plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of Common Stock.

(2)

Estimated in accordance with Rule 457(c) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee, based on the average of the high and low prices of Registrant’s Common Stock reported on the Nasdaq Global Market on May 22, 2020, which was $16.79.

 

 

 

Part I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Part I of Form S-8 will be sent or given to directors eligible to participate in the 2020 Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the instructions of Part I of Form S-8, such documents will not be 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 of the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, 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

 

The following documents which have been filed by the Registrant (File No. 1-34682) with the Commission are incorporated herein by reference:

 

 

(a)

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the Commission on March 11, 2020;

 

 

(b)

The Registrant’s Proxy Statement for its 2020 Annual Meeting of Shareholders (Schedule 14A), filed with the Commission on March 11, 2020;

 

 

(c)

All other reports filed by the Registrant pursuant to Sections 13(a) and 15(d) of the Securities Exchange Act of 1934 since December 31, 2020, including specifically, but not limited to the Registrant’s:

 

 

(i)

Quarterly Report on Form 10-Q for the quarter ended March 31, 2020; and

 

 

(ii)

Current Report on Form 8-K filed with the Commission on April 27, 2020 (Item 5.07); and

 

 

(d)

The description of the Common Stock set forth in the Registrant’s registration statement on Form 8-A (Reg. No.1-34682), filed with the Commission on March 31, 2010, including all amendments and reports filed for the purpose of updating that description.

 

In addition, all documents and reports and any future filings made by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby 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 part hereof from the date of filing of such documents or reports, excluding, in each case, the information, if any, furnished under Items 2.02 or 7.01 on Form 8-K. 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 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 Directors and Officers.

 

The Registrant’s officers and directors are and will be indemnified against certain liabilities under Delaware law, the Amended and Restated Certificate of Incorporation of the Registrant, (“Certificate of Incorporation”), and the By-laws of the Registrant (“By-laws”). The Certificate of Incorporation requires the Company to indemnify its directors and officers in the manner and to the fullest extent permitted from time to time by the Delaware General Corporation Law (“DGCL”). The By-laws contain provisions which implement the indemnification provisions of the Certificate of Incorporation.

 

Article Tenth of the Registrant’s Certificate of Incorporation provides: “No Director or officer acting in the capacity of a Director or performing duties as Director shall be personally liable to the Corporation or any stockholder for monetary damages for a breach of fiduciary duty as a Director, except for liability (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law; (iii) under Section 174 of Title 8 of the Delaware Code (relating to the Delaware Corporation Law); or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of Directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Neither the amendment nor repeal of this Article, nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Article, shall eliminate or reduce the effect of this Article in respect of any matter occurring, or any cause of action, suit or claim, that, but for this Article, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.”

 

Article Seventh of the Registrant’s Bylaws provides: “The Corporation shall indemnify to the full extent authorized by law any Director or officer made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a Director or officer of the Corporation or is or was serving, at the request of the Corporation, as a Director or officer of another corporation, partnership, joint venture, trust or other enterprise. The Corporation may, at the discretion of the Board of Directors, indemnify to the full extent authorized by law any employee or agent made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative by reason of the fact that he, his testator or intestate is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise. Expenses incurred with respect to any claim, action or proceeding of the character, actual or threatened, described in Section 1 of this Article VII, may be advanced by the Corporation prior to the final disposition thereof upon receipt of an undertaking by such person to repay the amount so advanced if and to the extent it shall ultimately be determined by a court of competent jurisdiction that he was not entitled to indemnification under this Bylaw. The intention of this Bylaw is to provide indemnification with the broadest and most inclusive coverage permitted by law (a) at the time of the act or omission to be indemnified against, or (b) so permitted at the time of carrying out such indemnification, whichever of (a) or (b) may be broader or more inclusive and permitted by law to be applicable. If the indemnification permitted by law at this present time, or at any future time, shall be broader or more inclusive than the provisions of this Bylaw, then indemnification shall nevertheless extend to the broadest and most inclusive permitted by law at any time and this Bylaw shall be deemed to have been amended accordingly. If any provision or portion of this Article shall be found, in any action, suit or proceeding, to be invalid or ineffective, the validity and effect of the remaining parts shall not be affected.”

 

- 2 -

 

Item 7.      Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.     Exhibits.

 

The following documents are filed as exhibits to this registration statement.

 

4.1

Amended and Restated Certificate of Incorporation of Eagle Bancorp Montana, Inc. (Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on February 23, 2010)

   

4.2

By-Laws of Eagle Bancorp Montana, Inc., amended as of August 20, 2015 (Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed on August 25, 2015)

   

*5.1

Opinion of Nixon Peabody LLP

   

10.1

2020 Non-Employee Director Award Plan (Incorporated by reference to Exhibit 10.2 to our Quarterly Report on Form 10-Q for the period ended March 31, 2020)

   

23.1

Consent of Nixon Peabody LLP (Contained in opinion filed as Exhibit 5.1 to this Registration Statement)

   

*23.2

Consent of Moss Adams LLP, independent accountants

   

24.1

Power of Attorney (Included on the signature page to this Registration Statement)

________

 

* Filed herewith

 

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.

 

(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;

 

- 3 -

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 Securities Exchange Act of 1934 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 liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(h)     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.

 

- 4 -

 

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 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 Lewis and Clark, State of Montana, on the 29th day of May, 2020.

 

Eagle Bancorp Montana, Inc.

 

 

By:     /s/ Peter J. Johnson                                    

Peter J. Johnson

President and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Peter J. Johnson and Laura F. Clark and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to the Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each 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.

 

 

/s/ Peter J. Johnson                          

President and CEO

May 29, 2020 

Peter J. Johnson

(Principal Executive Officer)

 
     
     

/s/ Laura F. Clark                            

Chief Financial Officer

May 29, 2020

Laura F. Clark

(Principal Financial

 
 

and Accounting Officer)

 
     
     

/s/ Rick F. Hays                              

Chairman

May 29, 2020

Rick F. Hays

   
     
     

/s/ Thomas J. McCarvel                  

Vice Chairman

May 29, 2020

Thomas J. McCarvel

   

 

- 5 -

 

/s/ Maureen J. Rude                        

Director

May 29, 2020

Maureen J. Rude

   
     
     

/s/ Shavon R. Cape                        

Director

May 29, 2020

Shavon R. Cape

   
     
     

/s/ Tanya S. Chemodurow              

Director

May 29, 2020

Tanya S. Chemodurow

   
     
     

/s/ Kenneth M. Walsh                    

Director

May 29, 2020

Kenneth M. Walsh

   
     
     
     

/s/ Corey Jensen                             

Director

May 29, 2020

Corey Jensen

   
     
     

/s/ Benjamin G. Ruddy

Director

May 29, 2020

Benjamin G. Ruddy

   
     
     

/s/ Cynthia A. Utterback

Director

May 29, 2020

Cynthia A. Utterback

   

 

- 6 -
ex_188154.htm

Exhibit 5.1

 

 

 

   

799 9th Street NW

Suite 500

Washington, DC  20001-4501

202-585-8000

 

 

 

May 29, 2020

 

 

 

Eagle Bancorp Montana, Inc.

1400 Prospect Avenue

Helena, Montana 59601

 

Ladies and Gentlemen:

 

We have acted as counsel to Eagle Bancorp Montana, Inc. (the “Company”) in connection with the Registration Statement on Form S-8 filed today by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the proposed issuance of up to 13,000 shares (the “Shares”) of common stock, par value $0.01 per share (the “Common Stock”), authorized for issuance pursuant to the Company’s 2020 Non-Employee Director Award Plan (the “Plan”). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.

 

We have examined the originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and all such agreements, certificates of public officials, certificates of officers or other representatives of the Company, and such other documents, certificates and corporate or other records as we have deemed necessary or appropriate as a basis for the opinions set forth herein, including: (i) the Amended and Restated Certificate of Incorporation of the Company, as amended to the date hereof (the “Certificate of Incorporation”), (ii) the By-Laws of the Company, as amended to the date hereof (the “By-Laws”), and (iii) certified copies of certain resolutions duly adopted by the Board of Directors of the Company, adopted December 12, 2019 and May 21, 2020, and of the stockholders of the Company, adopted on April 23, 2020. We have also assumed that (i) valid book-entry notations for the issuance of the Shares in uncertificated form will have been duly made in the share register of the Company, (ii) each award agreement setting forth the terms of each award granted pursuant to the Plan is consistent with the Plan and has been duly authorized and validly executed and delivered by the parties thereto, and (iii) at the time of each issuance of Shares, there will be sufficient shares of Common Stock authorized for issuance under the Company’s Certificate of Incorporation that have not otherwise been issued or reserved or committed for issuance, and (iv) the price per share paid for Shares issued pursuant to the Plan is not less than the par value of the Shares. As to factual matters material to the opinions set forth below we have relied, without investigation, upon the representations and statements of the Company in the Registration Statement and in such certificates of government officials and officers of the Company as we have deemed necessary for the purpose of the opinions expressed herein.

 

The opinions stated herein are limited to the federal laws of the United States and the General Corporation Law of the State of Delaware.

 

 

 

May 29, 2020

Page 2

 

 

Based upon and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that:

 

When the Registration Statement has become effective under the Act and the Shares have been issued and delivered upon payment therefor in accordance with the Plan and any applicable award agreement, the Shares will be duly authorized, validly issued, fully paid and non-assessable.

 

This opinion letter is limited to the matters expressly stated herein and no opinion is to be inferred or implied beyond the opinion expressly set forth herein. We undertake no, and hereby disclaim any, obligation to make any inquiry after the date hereof or to advise you of any changes in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other person or any other circumstance.

 

We hereby consent to the filing of this opinion as an exhibit to the above-referenced Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder.

 

Very truly yours,

 

 

/s/ Nixon Peabody LLP

 

 

 

 
ex_188211.htm

 

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 of Eagle Bancorp Montana Inc., of our report dated March 11, 2020, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of Eagle Bancorp Montana, Inc., which report appears in the Annual Report on Form 10-K of Eagle Bancorp Montana Inc. for the year ended December 31, 2019 (and expresses an unqualified opinion on the consolidated financial statements and an adverse opinion on the effectiveness of the Company’s internal control over financial reporting due to a material weakness).

 

 

/s/ Moss Adams LLP

 

Everett, Washington

May 29, 2020