Edgar Filing: National Bank Holdings Corp

NBHC S-8 2014 Omnbus Incentive Plan

As filed with the Securities and Exchange Commission on May 8, 2014

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

NATIONAL BANK HOLDINGS CORPORATION

(Exact name of registrant as specified in its charter)



Delaware		27-0563799
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

7800 East Orchard, Suite 300

Greenwood Village, Colorado 80111

(Address of principal executive offices) (Zip Code)

National Bank Holdings Corporation 2014 Omnibus Incentive Plan

NBH Holdings Corp. 2009 Equity Incentive Plan

(Full title of the Plan)

Zsolt K. Besskó, Esq.

Chief Administrative Officer & General Counsel

National Bank Holdings Corporation

7800 East Orchard, Suite 300

Greenwood Village, Colorado 80111

(Name and address of agent for service)

(720) 529-3336

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

Copies to:

David E. Shapiro, Esq.

Mark F. Veblen, Esq.

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

Telephone: (212) 403-1000

Facsimile: (212) 403-2000

________________________________________________________

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

CALCULATION OF REGISTRATION FEE



Title of securities to be registered	Amount to be registered (1)(2)	Proposed maximum offering price per share	Proposed maximum aggregate offering price	Amount of registration fee
Class A common stock, $0.01 par value
Outstanding Award Shares (1)	4,734,430
2014 Plan Shares (2)	4,614,967	$18.865 (3)	$85,266,688 (3)	$10,983 (3)
Total	9,349,397	$18.865 (3)	$85,266,688 (3)	$10,983 (3)

(1)

The Outstanding Award Shares are shares of the Registrant’s Class A common stock that are currently subject to outstanding awards under the Registrant’s 2009 Equity Incentive Plan (the “2009 Plan”). Pursuant to the 2014 Omnibus Incentive Plan (the “2014 Plan”), the Outstanding Award Shares will become available for issuance under the 2014 Plan if such Outstanding Award Shares under the 2009 Plan are forfeited or, in the case of awards other than stock options or stock appreciation rights, surrendered in order to satisfy withholding tax liabilities, on or after May 7, 2014 (the “Approval Date”), the date of approval of the 2014 Plan. The Outstanding Award Shares were previously registered by the Registrant under a Registration Statement on Form S-8 filed on September 29, 2012 (File No. 333-184097) (the “2009 Plan Registration Statement”) and the Registrant paid the required registration fees. Pursuant to Interpretation 89 under Section G of the Manual of Publicly Available Telephone Interpretations of the Division of Corporation Finance of the Securities and Exchange Commission (July 1997) and Instruction E to the General Instructions to Form S-8, the Registrant has carried forward the registration fee for the Outstanding Award Shares. The Registrant has concurrently filed a post-effective amendment to the 2009 Plan Registration Statement deregistering the Outstanding Award Shares under the 2009 Plan.

(2)

The 2014 Plan Shares are shares available for issuance under the 2014 Plan and include (a) 4,519,835 shares of Class A common stock not previously registered and (b) 95,132 shares of Class A common stock that were subject to outstanding awards under the 2009 Plan and, after December 31, 2013, were either forfeited or, in the case of awards other than stock options or stock appreciation rights, surrendered in order to satisfy withholding tax liabilities (the “2009 Plan Forfeited Shares”). In accordance with the terms of the 2014 Plan, the 2009 Plan Forfeited Shares became available for issuance under the 2014 Plan. Such 2009 Plan Forfeited Shares were previously registered by the Registrant under the 2009 Plan Registration Statement and, pursuant to Interpretation 89 under Section G of the Manual of Publicly Available Telephone Interpretations of the Division of Corporation Finance of the Securities and Exchange Commission (July 1997) and Instruction E to the General Instructions to Form S-8, the Registrant has carried forward the registration fee for the 2009 Plan Forfeited Shares.

Pursuant to Rule 416(a) under the Securities Act of 1933 (the “Securities Act”), this Registration Statement shall also be deemed to cover any additional securities to be offered or issued in connection with the provisions of the above-referenced plan, which provide for adjustments in the amount of securities to be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

(3) Estimated, pursuant to Rule 457(h)(1) under the Securities Act, based on the average high and low sale prices on the New York Stock Exchange for the Class A common stock on May 5, 2014, which was $18.865, for a total maximum offering price for such 4,519,835 shares of Class A common stock not previously registered of $85,266,688. As noted above, pursuant to Interpretation 89 under Section G of the Manual of Publicly

Available Telephone Interpretations of the Division of Corporation Finance of the Securities and Exchange Commission (July 1997) and Instruction E to the General Instructions to Form S-8, the Registrant has carried forward the registration fee for the Outstanding Award Shares and the 2009 Plan Forfeited Shares.

EXPLANATORY NOTE

The purpose of this Form S-8 Registration Statement (this “Registration Statement”) is to register an aggregate of 4,614,967 shares of National Bank Holdings Corporation (“we,” “our,” “us,” “NBH” or the “Company”) Class A common stock, par value $0.01 per share (the “Common Stock”), that may be offered pursuant to the National Bank Holdings Corporation 2014 Omnibus Incentive Plan and the 4,734,430 shares of Common Stock that are currently issued and outstanding under the NBH Holdings Corp. 2009 Equity Incentive Plan.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. Such documents need 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 in this Registration Statement pursuant to Item 3 of Part II hereof, 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 filed with the Commission by the Company are incorporated in this Registration Statement by reference:


1.	The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed on February 27, 2014;


2.	The Company’s Current Reports on Form 8-K filed on January 28, 2014, February 27, 2014, April 8, 2014, and May 8, 2014; and


3.	The description of the Common Stock, set forth in Post-Effective Amendment No. 1 on Form S-3 to the Company’s Registration Statement on Form S-1 filed October 23, 2013 (Commission File Number 333-184054) and any amendments, reports or other filings filed with the Commission for the purpose of updating that description.

To the extent that any information contained in any report on Form 8-K, or any exhibit thereto, was furnished to, rather than filed with, the Commission, such information or exhibit is specifically not incorporated by reference.

All documents subsequently filed by the Company 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 that indicates that all securities offered hereunder have been sold or that deregisters all of the securities offered then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents (excluding, in each case, information deemed to be furnished and not filed with the Commission).

Any statement contained in this Registration Statement or in a document incorporated or deemed 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 or incorporated by reference herein or in any subsequently filed document that 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.

Section 102(b)(7) of the Delaware General Corporation Law (“DGCL”) permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) 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 law, (iii) under Section 174 of the DGCL (regarding, among other things, the payment of unlawful dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which the director derived an improper personal benefit. Our amended and restated certificate of incorporation to be in effect upon completion of the offering will provide for such limitation of liability.

Section 145(a) of the DGCL empowers a corporation to indemnify any director, officer, employee or agent, or former director, officer, employee or agent, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of such person’s service as a director, officer, employee or agent of the corporation, or such person’s service, at the corporation’s request, as a director, officer, employee or agent of another corporation or enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding; provided that such director or officer acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding; provided that such director or officer had no reasonable cause to believe his or her conduct was unlawful.

Section 145(b) of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit; provided that such director or officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such director or officer shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Notwithstanding the preceding sentence, except as otherwise provided in the by-laws, we shall be required to indemnify any such person in connection with a proceeding (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by any such person was authorized by the board.

In addition, our amended and restated certificate of incorporation provides that we must indemnify our directors and officers to the fullest extent authorized by law. We are also expressly required to advance certain expenses to our directors and officers and carry directors’ and officers’ insurance providing indemnification for our

directors and officers for some liabilities. We believe that these indemnification provisions and the directors’ and officers’ insurance are useful to attract and retain qualified directors and executive officers.

We have also entered into indemnification agreements with each of our directors and certain officers. The indemnification agreements provide, among other things, for indemnification to the fullest extent permitted by law and our amended and restated certificate of incorporation and by-laws against (i) any and all expenses and liabilities, including judgments, fines, penalties, interest and amounts paid in settlement of any claim with our approval and counsel fees and disbursements, (ii) any liability pursuant to a loan guarantee, or otherwise, for any of our indebtedness, and (iii) any liabilities incurred as a result of acting on behalf of us (as a fiduciary or otherwise) in connection with an employee benefit plan. The indemnification agreements also provide for the advancement or payment of expenses to the indemnitee and for reimbursement to us if it is found that such indemnitee is not entitled to such indemnification under applicable law and our amended and restated certificate of incorporation and by-laws. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, in the opinion of the SEC, 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.

The list of exhibits is set forth under “Exhibit Index” at the end of this Registration Statement and is incorporated herein 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 of 1933;



	(ii)	To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and



	(iii)	To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the registration statement;



		provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.



	(c)	Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the 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 Securities Act of 1933 and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, on May 7, 2014.

NATIONAL BANK HOLDINGS CORPORATION

By: /s/ G. Timothy Laney

Name: G. Timothy Laney

Title: Chairman, President & Chief Executive Officer

Each person whose signature appears below hereby constitutes and appoints G. Timothy Laney, Brian F. Lilly and Zsolt K. Besskó, and each of them acting individually, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to execute for him and in his name, place and stead, in any and all capacities, any and all amendments (including post-effective amendments) to this Registration Statement and any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, as the attorney-in-fact and to file the same, with all exhibits thereto and any other documents required in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents and their substitutes, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully 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 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 below by the following persons in the capacities and on the dates indicated:



Signature	Title	Date

/s/ G. Timothy Laney	Chairman, President & Chief Executive Officer
G. Timothy Laney	(Principal Executive Officer)	May 7, 2014

/s/ Brian F. Lilly	Chief Financial Officer
Brian F. Lilly	(Principal Financial Officer)	May 7, 2014

/s/ H. Wayne McGaugh	Chief Accounting Officer
H. Wayne McGaugh	(Principal Accounting Officer)	May 7, 2014

/s/ Frank V. Cahout	Director	May 7, 2014
Frank V. Cahouet

/s/ Ralph W. Clermont	Director	May 7, 2014
Ralph W. Clermont

/s/ Robert W. Dean	Director	May 7, 2014
Robert E. Dean

/s/ Lawrence K. Fish	Director	May 7, 2014
Lawrence K. Fish

/s/ Micho F. Spring	Director	May 7, 2014
Micho F. Spring

/s/ Burney S. Warren	Director	May 7, 2014
Burney S. Warren

EXHIBIT INDEX




Exhibit Number		Description


3.1		Second Amended and Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.1 to the Company’s Form S-1 Registration Statement (Registration No. 333-177971), filed August 22, 2012)

3.2		Amended and Restated By-Laws (incorporated herein by reference to Exhibit 3.2 to the Company’s Form S-1 Registration Statement (Registration No. 333-177971), filed August 22, 2012)

4.1		Specimen common stock certificate (incorporated herein by reference to Exhibit 4.1 to the Company’s Form S-1 Registration Statement (Registration No. 333-177971), filed on August 22, 2012)

4.2		Registration Rights Agreement, dated as of October 20, 2009, by and between NBH Holdings Corp. and FBR Capital Markets, Inc. (incorporated herein by reference to Exhibit 4.2 to the Company’s Form S-1 Registration Statement (Registration No. 333-177971), filed on November 14, 2011)

4.3		Amendment No. 1, dated as of July 20, 2011, to the Registration Rights Agreement, dated as of October 20, 2009 by and between NBH Holdings Corp. and FBR Capital Markets, Inc. (incorporated herein by reference to Exhibit 4.3 to the Company’s Form S-1 Registration Statement (Registration No. 333-177971), filed on November 14, 2011)

5.1		Opinion of Wachtell, Lipton, Rosen & Katz

10.1		National Bank Holdings Corporation 2014 Omnibus Incentive Plan (incorporated herein by reference to Annex A to the Company’s Definitive Proxy Statement on Schedule 14A, filed on March 31, 2014)

23.1		Consent of KPMG LLP

23.2		Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1)

24.1		Power of Attorney (included on signature page)