Registration No. __________
As filed with the Securities and Exchange Commission on July 1, 2016
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ATLANTIC COAST FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
| Maryland | 65-1310069 | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification No.) |
| 4655 Salisbury Road, Suite 110 |
| Jacksonville, Florida 32256 |
| (Address of Principal Executive Offices and Zip Code) |
| Atlantic Coast Financial Corporation |
| 2016 Omnibus Incentive Plan |
| (Full title of the plan) |
| Kathryn E. Henthorn, Esq. |
| Sr. VP General Counsel and Corporate Secretary |
| Atlantic Coast Financial Corporation |
| 4655 Salisbury Road, Suite 110 |
| Jacksonville, Florida 32256 |
| (Name and address of agent for service) |
| (904) 998-5500 |
| (Telephone number, including area code, of agent for service) |
Copies of all communications, including
copies of all communications
sent to agent for service, should be sent to:
A. George Igler, Esq.
or
Richard Pearlman Esq.
Igler and Pearlman, P.A.
2075 Centre Pointe Boulevard, Suite 100
Tallahassee, Florida 32308
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 definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer: | ¨ | Accelerated filer: | þ |
| 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 $0.01 per share | 500,000 shares | $6.06 | $3,030,000 | $305.12 |
| (1) | Plus an indeterminate number of shares which may be required to be issued or may be issued pursuant to the antidilution provisions of the plan for stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for purposes of calculating the registration fee, pursuant to Rule 457(c) under the Securities Act of 1933, as amended, on the basis of the last sale price of the common stock on June 30, 2016. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by Atlantic Coast Financial Corporation (“Atlantic Coast” or the “Corporation”) with the Securities and Exchange Commission (the “Commission”) (File No. 001-35072) are incorporated herein by reference:
| 1. | Atlantic Coast’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on March 16, 2016. |
| 2. | Atlantic Coast’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed pursuant to the Exchange Act, on May 16, 2016. |
| 3. | Atlantic Coast’s Schedule 14A, filed pursuant to the Exchange Act, on April 19, 2016. |
| 4. | Atlantic Coast’s Current Reports on Form 8-K, filed pursuant to the Exchange Act, on April 1, 2016, April 7, 2016, April 27, 2016, May 27, 2016, and June 15, 2016. |
| 5. | All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2015. |
| 6. | The description of Atlantic Coast common stock contained in the Registration Statement on Form S-1/A, filed with the Commission on November 22, 2013, including any amendments or reports filed with the Commission for the purpose of updating such description. |
All other documents subsequently filed by Atlantic Coast pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all the shares of Atlantic Coast common stock offered hereby have been sold or which deregisters all the shares of Atlantic Coast common stock 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 herein or 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.
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| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interest of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
The Maryland General Corporation Law (“MGCL”) permits a corporation to indemnify its present and former directors, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their services in those capacities, unless it is established that:
| (1) | the act or omission of the director was material to the matter giving rise to such proceeding, and |
| (A) | was committed in bad faith or |
| (B) | was the result of active and deliberate dishonesty; |
| (2) | the director actually received an improper personal benefit in money, property, or services; or |
| (3) | in the case of any criminal proceeding, the director had reasonable cause to believe that the act or omission was unlawful. |
A court of appropriate jurisdiction also may under certain circumstances order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification in view of all of the relevant circumstances, whether or not the director or officer has met the standards of conduct set forth in the preceding paragraph or has been declared liable on the basis that a personal benefit improperly received in a proceeding charging improper personal benefit to the director or the officer. If the proceeding was an action by or in the right of the corporation or involved a determination that the director or officer received an improper personal benefit, however, no indemnification may be made if the individual is adjudged liable to the corporation, except to the extent of expenses approved by a court of appropriate jurisdiction.
Under the MGCL, a Maryland corporation also is permitted to pay or reimburse, in advance of the final disposition of a proceeding, reasonable expenses incurred by a present or former director or officer made a party to the proceeding by reason of his service in that capacity, provided that the corporation shall have received a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by the corporation and a written undertaking by or on behalf of the director to repay the amount paid or reimbursed by the corporation if it shall ultimately be determined that the standard of conduct was not met.
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The MGCL also authorizes a Maryland corporation to limit by provision in its Articles of Incorporation the liability of directors and officers to the corporation or to its stockholders for money damages except to the extent:
| (1) | the director or officer actually receives an improper benefit or profit in money, property, or services, for the amount of the benefit or profit actually received, or |
| (2) | a judgment or other final adjudication adverse to the director or officer is entered in a proceeding based on a finding in the proceeding that the director's or officer'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. |
Articles 10 and 11 of our Articles of Incorporation set forth circumstances under which our directors, officers, employees and agents may be insured or indemnified against liability which they incur in their capacities as such and may have their liability limited pursuant to the provisions of Maryland law summarized above:
| 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 MGCL now or hereafter in force, including the advancement of expenses under the procedures and to the fullest extent permitted by law, 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. |
| 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. |
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| 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 which 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 protect 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. | Limitation 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. |
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.
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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.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have 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.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
| Incorporated by Reference from: | ||||||||||||
| Exhibit No. |
Exhibit Description |
Form |
Filing Date | Exhibit No. | Commission File No. | Filed Herewith | ||||||
| 4.1 |
Form of Common Stock Certificate of Atlantic Coast Financial Corporation |
S-1 | 6/18/10 | 4 | 333-167632 | No | ||||||
| 4.2 |
Amended and Restated Articles of Incorporation of Atlantic Coast Financial Corporation |
S-1 | 6/18/10 | 3.1 | 333-167632 | No | ||||||
| 4.3 |
Bylaws of Atlantic Coast Financial Corporation |
S-1 | 6/18/10 | 3.2 | 333-167632 | No | ||||||
| 4.4 |
Atlantic Coast Financial Corporation 2016 Omnibus Incentive Plan |
DEF14A | 4/19/16 | Appendix A | 001-35072 | No | ||||||
| 5.1 |
Opinion of Igler and Pearlman, P.A. |
Yes | ||||||||||
| 23.1 |
Consent of RSM US LLP |
Yes | ||||||||||
| 23.2 |
Consent of Igler and Pearlman, P.A. (included in Exhibit 5.1) |
Yes | ||||||||||
| 24.1 |
Power of Attorney (included on the signature page) |
Yes | ||||||||||
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| 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;
(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.
(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.
(c) 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 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
Each of the undersigned hereby constitutes and appoints John K. Stephens and Tracy L. Keegan, and each of them as attorneys for him and in his name, place and stead, and in any and all capacities, to execute and file any amendments, supplements or statements with respect to this Registration Statement, hereby giving and granting to said attorneys, and each of them, full power and authority to do and perform each and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as he might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorney, or any of them, or their or his substitute or substitutes, may or shall lawfully do, or causes to be done, by virtue hereof.
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 Jacksonville, State of Florida, on July 1, 2016.
ATLANTIC COAST FINANCIAL CORPORATION
| By: | /s/ John K. Stephens, Jr. |
|
| John K. Stephens, Jr. | ||
| Principal Executive Officer, | ||
| Chief Executive Officer, and President | ||
| By: | /s/ Tracy L. Keegan |
|
| Tracy L. Keegan | ||
| Principal Financial Officer, | ||
| Chief Financial Officer, and Executive Vice President |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
| /s/ Devinder P.S. Bhasin | June 30, 2016 |
||
| Devinder P.S. Bhasin | Date | ||
| Director | |||
| /s/ Bhanu Choudhrie | June 30, 2016 | ||
| Bhanu Choudhrie | Date | ||
| Director | |||
| /s/ John J. Dolan | June 30, 2016 | ||
| John J. Dolan | Date | ||
| Director |
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| /s/ James D. Hogan | June 30, 2016 | ||
| James D. Hogan | Date | ||
| Director | |||
| /s/ W. Eric Palmer | June 30, 2016 | ||
| W. Eric Palmer | Date | ||
| Director | |||
| /s/ Jay S. Sidhu | June 30, 2016 | ||
| Jay S. Sidhu | Date | ||
| Director | |||
| /s/ John K. Stephens, Jr. | June 30, 2016 | ||
| John K. Stephens, Jr. | Date | ||
| Director, Chief Executive Officer, and President |