Registration Statement No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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EAGLE BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
Maryland 52-1943477
(State or Other Jurisdiction of (IRS Employer I.D. Number)
Incorporation or Organization)
7815 Woodmont Avenue, Bethesda, Maryland 20814
(Address of Principal Executive Offices) (Zip Code)
EAGLE BANCORP, INC. 1998 STOCK OPTION PLAN
(Full Title of Plan)
Ronald D. Paul, President
Eagle Bancorp, Inc.
7815 Woodmont Avenue
Bethesda, Maryland 20814
301.986.1800
(Name, Address, and Telephone Number of Agent for Service)
Copies to:
Noel M. Gruber, Esquire
David H. Baris, Esquire
Kennedy, Baris & Lundy, L.L.P.
Suite P-15
4701 Sangamore Road
Bethesda, Maryland 20816
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering per Aggregate Offering Amount of
Registered Registered(2) Share(1) Price(1) Registration Fee
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Common Stock, 300,000 shares $19.00 $5,700,000 $722.19
$.01 par value
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(1) Estimated in accordance with Rule 457(h)(1) under the Securities Act of
1933 solely for purposes of calculating the registration fee, based
upon, the average of the high and low sales prices for the common stock
on June 8, 2004.
(2) Previously, on registration statements no. 333-78449 and 333-89838, an
aggregate of 579,025 shares of common stock of the registrant, as
adjusted for intervening stock splits and dividends, were registered
for issuance pursuant to the exercise of options issued under the 1998
Stock Option Plan. This registration statement registers an additional
300,000 shares for issuance pursuant to options granted under the plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with Securities and Exchange Commission
are hereby incorporated by reference herein:
(1) Eagle Bancorp, Inc.'s Annual Report on Form 10-KSB for the
year ended December 31, 2003;
(2) Eagle Bancorp, Inc.'s Quarterly Report on Form 10-QSB for the
quarters ended March 31, 2004;
(3) Eagle Bancorp's Current Reports on Form 8-K filed on April 16,
2004 and May 4, 2004;
(4) The description of Eagle Bancorp, Inc.'s Common Stock
contained in its Registration Statement on Form 8-A filed
April 30, 1999; and
(5) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act by Eagle Bancorp, Inc. since the end of the
year covered in its Annual Report referred to in (1) above.
All documents filed by Eagle Bancorp, Inc. pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
date hereof, and prior to the filing of a post-effective amendment hereto which
indicates that all securities offered hereby shall have been sold or which
deregisters all securities remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
As the securities to be issued pursuant to this registration statement
are registered under Section 12 of the Securities Exchange Act of 1934, this
item is inapplicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VI of the Company's Articles of Incorporation provides that the
Company shall, to the full extent permitted and in the manner prescribed by the
Maryland General Corporation Law and any other applicable law, indemnify a
director or officer of the Company who is or was a party to any proceeding by
reason of the fact that he is or was a director or officer, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise.
The Maryland General Corporation Law provides, in pertinent part, as
follows:
2-418 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. --
(a) In this section the following words have the meanings indicated.
(1) "Director" means any person who is or was a director of a
corporation and any person who, while a director of a corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, other enterprise, or employee benefit plan.
(2) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger, consolidation, or other transaction in
which the predecessor's existence ceased upon consummation of the transaction.
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(3) "Expenses" include attorney's fees.
(4) "Official capacity" means the following:
(i) When used with respect to a director, the office of director in
the corporation; and
(ii) When used with respect to a person other than a director as
contemplated in sub-section (j), the elective or appointive office in the
corporation held by the officer, or the employment or agency relationship
undertaken by the employee or agent in behalf of the corporation.
(iii) "Official capacity" does not include service for any other
foreign or domestic corporation or any partnership, joint venture, trust, other
enterprise, or employee benefit plan.
(5) "Party" includes a person who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(6) "Proceeding" means any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative.
(b)(1) A corporation may indemnify any director made a party to any
proceeding by reason of service in that capacity unless it is established that:
(i) The act or omission of the director was material to the matter
giving rise to the proceeding; and
1. Was committed in bad faith; or
2. Was the result of active and deliberate dishonesty; or
(ii) The director actually received an improper personal benefit in
money, property, or services; or
(iii) In the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was unlawful.
(2)(i) Indemnification may be against judgments, penalties, fines,
settlements, and reasonable expenses actually incurred by the director in
connection with the proceeding.
(ii) However, if the proceeding was one by or in the right of the
corporation, indemnification may not be made in respect of any proceeding in
which the director shall have been adjudged to be liable to the corporation.
(3)(i) The termination of any proceeding by judgment, order, or
settlement does not create a presumption that the director did not meet the
requisite standard of conduct set forth in this subsection.
(ii) The termination of any proceeding by conviction, or a plea of
nolo contendere or its equivalent, or an entry of an order of probation prior to
judgment, creates a rebuttal presumption that the director did not meet that
standard of conduct.
(c) A director may not be indemnified under subsection (B) of this
section in respect of any proceeding charging improper personal benefit to the
director, whether or not involving action in the director's official capacity,
in which the director was adjudged to be liable on the basis that personal
benefit was improperly received.
(d) Unless limited by the charter:
(1) A director who has been successful, on the merits or otherwise,
in the defense of any proceeding referred to in subsection (B) of this section
shall be indemnified against reasonable expenses incurred by the director in
connection with the proceeding.
(2) A court of appropriate jurisdiction upon application of a
director and such notice as the court shall require, may order indemnification
in the following circumstances:
(i) If it determines a director is entitled to reimbursement under
paragraph (1) of this subsection, the court shall order indemnification, in
which case the director shall be entitled to recover the expenses of securing
such reimbursement; or
(ii) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not the director has met the standards of conduct set forth in subsection (b)
of this section or has been adjudged liable under the circumstances described in
subsection (c) of this section, the court may order such indemnification as the
court shall deem proper. However, indemnification with respect to any proceeding
by or in the right of the corporation or in which liability shall have been
adjudged in the circumstances described in subsection (c) shall be limited to
expenses.
(3) A court of appropriate jurisdiction may be the same court in
which the proceeding involving the director's liability took place.
(e)(1) Indemnification under subsection (b) of this section may not
be made by the corporation unless authorized for a specific proceeding after a
determination has been made that indemnification of the director is permissible
in the circumstances because the director has met the standard of conduct set
forth in subsection (b) of this section.
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(2) Such determination shall be made:
(i) By the board of directors by a majority vote of a quorum
consisting of directors not, at the time, parties to the proceeding, or, if such
a quorum cannot be obtained, then by a majority vote of a committee of the board
consisting solely of two or more directors not, at the time, parties to such
proceeding and who were duly designated to act in the matter by a majority vote
of the full board in which the designated directors who are parties may
participate;
(ii) By special legal counsel selected by the board of directors or
a committee of the board by vote as set forth in subparagraph (I) of this
paragraph, or, if the requisite quorum of the full board cannot be obtained
therefor and the committee cannot be established, by a majority vote of the full
board in which directors who are parties may participate; or
(iii) By the stockholders.
(3) Authorization of indemnification and determination as to
reasonableness of expenses shall be made in the same manner as the determination
that indemnification is permissible. However, if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses shall be
made in the manner specified in subparagraph (ii) of paragraph (2) of this
subsection for selection of such counsel.
(4) Shares held by directors who are parties to the proceeding may
not be voted on the subject matter under this subsection.
(f)(1) Reasonable expenses incurred by a director who is a party to a
proceeding may be paid or reimbursed by the corporation in advance of the final
disposition of the proceeding upon receipt by the corporation of:
(i) A written affirmation by the director of the director's good
faith belief that the standard of conduct necessary for indemnification by the
corporation as authorized in this section has been met; and
(ii) A written undertaking by or on behalf of the director to repay
the amount if it shall ultimately be determined that the standard of conduct has
not been met.
(2) The undertaking required by subparagraph (ii) of paragraph (1)
of this subsection shall be an unlimited general obligation of the director but
need not be secured and may be accepted without reference to financial ability
to make the repayment.
(3) Payments under this subsection shall be made as provided by the
charter, bylaws or contract or as specified in subsection (e) of this section.
(g) The indemnification and advancement of expenses provided or
authorized by this section may not be deemed exclusive of any other rights, by
indemnification or otherwise, to which a director may be entitled under the
charter, the bylaws, a resolution of stockholders of directors, an agreement or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office.
(h) This section does not limit the corporation's power to pay or
reimburse expenses incurred by a director in connection with an appearance as a
witness in a proceeding at a time when the director has not been made a named
defendant or respondent in the proceeding.
(i) For purposes of this section:
(1) The corporation shall be deemed to have requested a director to
serve an employee benefit plan where the performance of the director's duties to
the corporation also imposes duties on, or otherwise involves services by, the
director to the plan or participants or beneficiaries of the plan:
(2) Excise taxes assessed on a director with respect to an employee
benefit plan pursuant to applicable law shall be deemed fined; and
(3) Action taken or omitted by the director with respect to an
employee benefit plan in the performance of the director's duties for a purpose
reasonably believed by the director to be in the interest of the participants
and beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the corporation.
(j) Unless limited by the charter:
(1) An officer of the corporation shall be indemnified as and to
the extent provided in subsection (d) of this section for a director and shall
be entitled, to the same extent as a director, to seek indemnification pursuant
to the provisions of subsection (d);
(2) A corporation may indemnify and advance expenses to an officer,
employee, or agent of the corporation to the same extent that it may indemnify
directors under this section; and
(3) A corporation, in addition, may indemnify and advance expenses
to an officer, employee, or agent
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who is not a director to such further extent, consistent with law, as may be
provided by its charter, bylaws, general or specific action of its board of
directors or contract.
(k)(1) A corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee, or agent of the
corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other enterprise, or employee
benefit plan against any liability asserted against and incurred by such person
in any such capacity or arising out of such person's position, whether or not
the corporation would have the power to indemnify against liability under the
provisions of this section.
(2) A corporation may provide similar protection, including a trust
fund, letter of credit, or surety bond, not inconsistent with this section.
(3) The insurance or similar protection may be provided by a
subsidiary or an affiliate of the corporation.
(l) Any indemnification of, or advance of expenses to, a director
in accordance with this section, if arising out of a proceeding by or in the
right of the corporation, shall be reported in writing to the stockholders with
the notice of the next stockholders' meeting or prior to the meeting.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
As no restricted securities are to be reoffered or resold pursuant to
this registration statement, this item is inapplicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
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4 Eagle Bancorp, Inc. 1998 Stock Option Plan (1)
5 Opinion of Kennedy, Baris & Lundy, L.L.P.
23(a) Consent of Kennedy, Baris & Lundy, L.L.P., included
in Exhibit 5
23(b) Consent of Stegman and Company
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(1) Incorporated by reference to Exhibit 4 to registrant's Registration
Statement on Form S-8 No. 333-78449.
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes that it will:
(1) file, during any period in which it offers or sells securities,
a post-effective amendment to this registration statement to: (i) include any
prospectus required by section 10(a)(3) of the Securities Act of 1933 (the
"Act"); (ii) 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 in the registration statement; and (iii)
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) for determining liability under the Act, treat each
post-effective amendment as a new registration statement relating to the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
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The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (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.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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 has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Bethesda,
State of Maryland on June 9, 2004.
EAGLE BANCORP, INC.
By: /s/ Michael T. Flynn
------------------------------------------------
Michael T. Flynn, Executive Vice President
In accordance with the requirements of the Securities Act, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
NAME POSITION DATE
Chairman of the Board of Directors _____, 2004
------------------------------------
Leonard L. Abel
/s/ Leslie M. Alperstein Director June 9, 2004
------------------------------------
Leslie M. Alperstein
/s/ Dudley C. Dworken Director June 9, 2004
------------------------------------
Dudley C. Dworken
/s/ Michael T. Flynn Executive Vice President and Director June 9, 2004
------------------------------------ of the Company, President of the Bank
Michael T. Flynn
/s/ Eugene F. Ford, Sr. Director June 9, 2004
------------------------------------
Eugene F. Ford, Sr.
/s/ Philip N. Margolius Director June 9, 2004
------------------------------------
Philip N. Margolius
President and Director _____, 2004
------------------------------------ Principal Executive Officer
Ronald D. Paul
/s/ Wilmer L. Tinley Executive Vice President of the Bank, June 9, 2004
------------------------------------ Chief Financial Officer of the Company
Wilmer L. Tinley Principal Financial and Accounting Officer
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EXHIBIT 5
KENNEDY, BARIS & LUNDY, L.L.P.
ATTORNEYS AT LAW
SUITE P-15
4701 SANGAMORE ROAD
TEXAS OFFICE BETHESDA, MD 20816 WASHINGTON DC OFFICE
SUITE 2550 (301) 229-3400 SUITE 320
112 EAST PECAN STREET FAX (301) 229-2443 1225 NINETEENTH STREET, NW
SAN ANTONIO, TX 78205 WASHINGTON, DC 20036
(210) 228-9500 (202) 835-0315
FAX (210) 228-0761 FAX (202) 835-0319
June 9, 2004
Board of Directors
Eagle Bancorp, Inc.
7815 Woodmont Avenue
Bethesda, Maryland 20814
Gentlemen:
As special legal counsel to Eagle Bancorp, Inc. (the "Company"), we
have participated in the preparation of the Company's Registration Statement on
Form S-8 to be filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, relating to the registration and issuance of
additional shares (the "Shares") of the Company's Common Stock pursuant to the
exercise of options under the Eagle Bancorp, Inc. 1998 Stock Option Plan, as
amended (the "Plan").
As counsel to the Company, we have examined such corporate records,
certificates and other documents of the Company, and made such examinations of
law and other inquiries of such officers of the Company, as we have deemed
necessary or appropriate for purposes of this opinion. Based upon such
examinations we are of the opinion that the Shares, when issued in accordance
with the provisions of the Plan and the options granted pursuant thereto, will
be duly authorized, validly issued, fully paid and non-assessable shares of the
Common Stock of the Company.
We hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement on Form S-8 filed by the Company and to the reference to
our firm contained.
Sincerely,
/s/ Kennedy, Baris & Lundy, L.L.P.
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Form S-8 of Eagle Bancorp,
Inc. of our report, dated February 13, 2004, relating to the consolidated
balance sheets of Eagle Bancorp, Inc. as of December 31, 2003 and 2002, and the
related consolidated statements of operations, changes in stockholders' equity
and cash flows for the years ended December 31, 2003, 2002, and 2001, which
report appears in the Eagle Bancorp, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 2003.
/s/ Stegman and Company
Baltimore, Maryland
June 9, 2004