Table of Contents
As filed with the Securities and Exchange
Commission on January 5, 2009
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
Under
The
Securities Act of 1933
Eagle Bancorp, Inc.
(Exact name of registrant as
specified in its charter)
Maryland
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52-1943477
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(State or other jurisdiction of
incorporation
or organization)
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(I.R.S. Employer
Identification
Number)
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7815
Woodmont Avenue
Bethesda,
Maryland 20814
301.986.1800
(Address,
including ZIP Code and Telephone Number, including Area Code, of Registrants
Principal Executive Offices)
Ronald D. Paul, President
Eagle Bancorp, Inc.
7815 Woodmont Avenue
Bethesda, Maryland 20814
301.986.1800
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With a copy to:
Noel M. Gruber, Esquire
Kennedy & Baris, LLP
4701 Sangamore Road, Suite P-15
Bethesda, Maryland 20816
301.229.3400
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(Name, Address, including ZIP Code and
Telephone Number, including
Area Code, of Agent for Service)
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Approximate date of commencement of proposed sale to the public: From time to time after the effective date of
this Registration Statement.
If
the only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
o
If
any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box.
x
If
this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
o
If
this Form is a registration statement pursuant to General Instruction I.D.
or a post-effective amendment thereto that shall become effective upon filing
with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box.
o
If
this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
o
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
o
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Accelerated filer
x
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Non-accelerated filer
o
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Smaller reporting company
o
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CALCULATION
OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount to be
Registered
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Proposed Maximum
Offering Price Per
Unit
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Warrant to Purchase Common Stock, $0.01 par
value per share, and underlying shares of Common Stock (1)
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770,867
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$
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7.44
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(2)
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$
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5,735,250.48
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(2)
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$
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225.40
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(2)
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(1)
This registration statement covers (a) a
warrant to purchase 770,867 shares of common stock with an initial exercise
price of $7.44 per and (b) the
770,867 shares of common stock underlying the warrant. This registration statement also covers, in
accordance with Rule 416, such indeterminate number of additional shares
of common stock which may from time to time become issuable by reason of stock
splits, stock dividends and anti-dilution provisions set forth in the warrant.
(2)
Calculated
in accordance with Rule 457(g), based on the exercise price of the
warrant. In accordance with Rule 457(g),
no separate fee is payable with respect to the warrant.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE
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The information in this preliminary prospectus is not complete and
may be changed. This preliminary prospectus is not an offer to sell securities
and is not soliciting an offer to buy these securities in any state or
jurisdiction where the offer or sale is not permitted.
Prospectus
SUBJECT TO COMPLETION, DATED JANUARY 5, 2009
770,867 Shares of Common Stock, $0.01 par value
This
prospectus relates to the potential resale from time to time by selling
securityholders of some or all of the warrant to purchase 770,867 shares of our
common stock, referred to as the warrant, and some or all of the shares of our
common stock issuable from time to time upon exercise of the warrant. In this prospectus, we refer to the warrant
and the shares of common stock issuable upon exercise of the warrant,
collectively, as the securities. The warrant along with a new series of
preferred stock, our Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
or Series A Preferred Stock, was originally issued by us pursuant to a
Letter Agreement dated December 5, 2008, and the related Securities
Purchase Agreement Standard Terms, between us and the United States
Department of the Treasury, which we refer to as the Treasury or the initial
selling securityholder, in a transaction exempt from the registration
requirements of the Securities Act of 1933, as amended, or the Securities Act.
The
initial selling securityholder and its successors, including transferees, which
we collectively refer to as the selling securityholders, may offer the
securities from time to time directly or through underwriters, broker-dealers
or agents and in one or more public or private transactions and at fixed prices,
prevailing market prices, at prices related to prevailing market prices or at
negotiated prices. If these securities are sold through
underwriters, broker-dealers or agents, the selling securityholders will be
responsible for underwriting discounts or commissions or agents commissions.
We
will not receive any proceeds from the sale of securities by the selling
securityholders.
Our
common stock is listed on the Nasdaq Stock Market under the symbol
EGBN. On January 2, 2009, the closing price for the common
stock was $6.10 per share. You are urged
to obtain current quotations for the common stock.
The
warrant is not listed on any exchange, and unless required and requested under
the Letter Agreement and Securities Purchase Agreement Standard Terms, we do
not have any intention of listing the warrant on any exchange.
An
investment in the common stock or the warrant involves investment risks. See Risk Factors at page 4.
Shares of our common
stock are not deposits, savings accounts, or other obligations of a depository
institution and are not insured by the Federal Deposit Insurance Corporation or
any other governmental agency. Investing
in our common stock involves investment risks.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or
disapproved of the common stock or determined if this prospectus is accurate or
adequate. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2009.
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Eagle Bancorp has not authorized anyone to give any information or make
any representation about the offering that differs from, or adds to, the
information in this prospectus or in its documents that are publicly filed with
the Securities and Exchange Commission. Therefore, if anyone does give you
different or additional information, you should not rely on it. The delivery of this prospectus and/or the
sale of shares of Preferred Stock do not mean that there have not been any
changes in Eagle Bancorps condition since the date of this prospectus. If you are in a jurisdiction where it is
unlawful to offer to sell, or to ask for offers to buy, the securities offered
by this prospectus, or if you are a person to whom it is unlawful to direct
such activities, then the offer presented by this prospectus does not extend to
you. This prospectus speaks only as of
its date except where it indicates that another date applies.
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SUMMARY
This
section highlights selected material information from this prospectus. This summary is not a complete description of
the offering or the securities offered, and does not contain all of the
information that may be important to you. For a more complete understanding of
us and the terms of the securities offered by the selling securityholders, you
should read carefully this entire prospectus, including the Risk Factors
section, and the other documents we refer to and incorporate by reference. In
particular, we incorporate important business and financial information into
this prospectus by reference.
Unless
the context requires otherwise, in this prospectus, we use the terms we, us,
our, Eagle and the Company to refer to Eagle Bancorp, Inc. and its
subsidiaries. The term EagleBank or Bank refers to our principal operating
subsidiary, EagleBank (unless the context indicates another meaning).
Eagle Bancorp, Inc.
7815 Woodmont Avenue
Bethesda, Maryland 20814
(301) 986-1800
We are the
registered bank holding company for EagleBank, Bethesda, Maryland, a Maryland
chartered commercial bank which is a member of the Federal Reserve System. We
are a growth oriented institution, providing general commercial and consumer
banking services through EagleBank, and subordinated financing for real estate
projects through a direct subsidiary, where the primary financing would be
provided by EagleBank. EagleBank was organized as an independent, community
oriented, and full-service alternative to the super regional financial
institutions, which dominate its primary market area. EagleBanks philosophy is
to provide superior, personalized service to our customers. EagleBank focuses
on relationship banking, providing each customer with a number of services,
becoming familiar with and addressing customer needs in a proactive,
personalized fashion. We were organized in October 1997 to be the holding
company for EagleBank.
On December 5,
2008, we entered into a Letter Agreement, including a related Securities
Purchase Agreement Standard Terms, with the Treasury, pursuant to which we
agreed to issue and sell, and the Treasury agreed to purchase, (i) 38,235
shares of our Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
having a liquidation preference of $1,000 per share, referred to as our Series A
Preferred Stock and (ii) a ten-year warrant to purchase up to 770,867
shares of our common stock, $0.01, at an initial exercise price of $7.44 per
share. The warrant was immediately
exercisable upon its issuance and will expire on December 5, 2018.
The Securities That May Be Offered
The selling
securityholders may use this prospectus to offer for resale the warrant or the
shares of common stock issuable upon the exercise of the warrant in one or more
offerings. At the time a particular offer of securities is made, if required, a
prospectus supplement will set forth the number and type of securities being
offered and the terms of the offering, including the name of any underwriter,
dealer or agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any discount, commission
or concession allowed or reallowed or paid to any dealer, and the proposed
selling price to the public. In that
case, the prospectus supplement may describe risks associated with an
investment in the securities in addition to those described in the Risk
Factors section of this prospectus. Terms used in this prospectus will have
the meanings described in this prospectus unless otherwise specified.
The selling
securityholders, as well as any agents acting on their behalf, reserve the sole
right to accept or to reject in whole or in part any proposed purchase of our
securities.
Warrant.
The selling
securityholders may sell all or a portion of the warrant to purchase 770,867
shares of our common stock. The warrant has an initial exercise price of $7.44
per share. If required, a prospectus
supplement will describe the price at which the selling securityholder is
offering the warrant or interest in the warrant and the number of shares of
common stock underlying the warrant offered.
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Common
Stock.
Upon the
exercise of all or a portion of the warrant, the selling securityholders may
sell the shares of our common stock issued upon such exercise. If required, a
prospectus supplement will describe the aggregate number of shares offered and
the offering price or prices of the shares.
CAUTION
ABOUT FORWARD LOOKING STATEMENTS
We
make forward-looking statements in this prospectus and in other documents incorporated
by reference in this prospectus, within the meaning of and pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995. A
forward-looking statement encompasses any estimate, prediction, opinion or
statement of belief in this joint proxy statement/prospectus and the underlying
management assumptions. These forward-looking statements can be identified by
words such as believes, expects, anticipates, intends and similar
expressions. These statements are based upon our current reasonable
expectations and assessments and are inherently subject to significant
business, economic and competitive uncertainties and contingencies, many of
which are beyond our control. In addition, these forward-looking statements are
subject to assumptions with respect to future business strategies and decisions
that are subject to change.
In
addition to factors that we have previously disclosed in our reports filed with
the SEC and those that we discuss elsewhere in this prospectus, the following
factors, among others, could cause actual results to differ materially from the
anticipated results or other expectations expressed in the forward-looking
statements:
·
the
businesses of the Company and Fidelity & Trust Financial Corporation (Fidelity),
acquired by the Company in August 2008, may not be combined successfully,
or such combination, including the conversion of Fidelitys systems, controls
and procedures, may take longer, be more difficult, time-consuming or costly to
accomplish than expected;
·
the
expected cost savings from the acquisition may not be fully realized or may
take longer to realize than expected;
·
customer
relationship losses, increases in operating costs and business disruption
following the merger may be greater than expected;
·
adverse
effects on relationships with employees may be greater than expected;
·
adverse
governmental or regulatory policies may be enacted;
·
the
interest rate environment may compress margins and adversely affect net
interest income;
·
adverse
effects may be caused by continued diversification of assets and adverse
changes to credit quality;
·
competition
from other financial services companies in our markets could adversely affect
operations;
·
our
concentrations of loans in commercial, commercial real estate and construction
loans, and loans to borrowers in the Washington, D.C. metropolitan area, may
adversely affect our earnings and results of operations;
·
the
effect and costs of Fidelitys legacy mortgage brokerage operations may be
greater than anticipated;
·
an
economic slowdown could adversely affect credit quality and loan originations;
and
·
social
and political conditions such as war, political unrest and terrorism or natural
disasters could have unpredictable negative effects on our businesses and the
economy.
The
forward-looking statements are made as of the date of the applicable document
and, except as required by applicable law, we assume no obligation to update
these forward-looking statements or to update the reasons why actual results
could differ from those projected in the forward-looking statements. You should
consider these risks and uncertainties in evaluating forward-looking statements
and you should not place undue reliance on these statements.
RISK FACTORS
An investment in our securities involves various risks. You should
carefully consider the risks and uncertainties and the risk factors set forth
in the documents and reports filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
which we refer to as the Exchange
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Act, that are incorporated by reference into this prospectus, as well
as any risks described in any applicable prospectus supplement, before you make
an investment decision. These risk factors may cause our future earnings to be
lower or our financial condition to be less favorable than we expect. In
addition, other risks of which we are not aware, or which we do not believe are
material, may cause our earnings to be lower, or hurt our future financial
condition.
USE OF
PROCEEDS
We will not
receive any proceeds from the sale by the selling securityholders of the
warrant or the shares of common stock issuable upon exercise of the warrant.
DESCRIPTION OF THE WARRANT TO
PURCHASE COMMON STOCK
The following is a brief
description of the terms of the warrant that may be resold by the selling
securityholders. This summary does not purport to be complete in all respects.
This description is subject to and qualified in its entirety by reference to
the warrant, a copy of which has been filed with the SEC and is also available
upon request from us.
Shares of Common Stock
Subject to the Warrant.
The warrant is initially exercisable for
770,867 shares of our common stock. If we complete one or more qualified equity
offerings, as described below, on or prior to December 31, 2009 that
result in our receipt of aggregate gross proceeds of not less than $38,235,000,
which is equal to 100% of the aggregate fixed liquidation amount of $1,000 per
share of our Series A Preferred Stock, plus any accrued and unpaid
dividends, the number of shares of common stock underlying the warrant then
held by the selling securityholders will be reduced by 50%, to approximately
385,433 shares. The number of shares subject to the warrant are subject to the
further adjustments described below under the heading - Adjustments to the
Warrant. A qualified equity offering is a sale or issuance for cash by us,
to persons other than Eagle or its subsidiaries after December 5, 2008, of
shares of preferred stock, common stock or a combination thereof, that in each
case qualify as tier 1 capital of at the time of issuance under the applicable
risk-based capital guidelines of the Board of Governors of the Federal Reserve
System. Qualified equity offerings do not include sales or issuances made
pursuant to agreements or arrangements entered into, or pursuant to financing
plans that were publicly announced, on or prior to October 13, 2008.
Exercise of the
Warrant.
The initial exercise price applicable to the
warrant is $7.44 for each share of common stock for which the warrant may be
exercised. The warrant may be exercised at any time on or before December 5,
2018 by surrender of the warrant and a completed notice of exercise and the
payment of the exercise price for the shares of common stock for which the
warrant is being exercised. The exercise price may be paid either by the
withholding of such number of shares of common stock issuable upon exercise of
the warrant equal to the value of the aggregate exercise price of the warrant,
determined by reference to the market price of our common stock on the trading
day on which the warrant is exercised or, if agreed to by us and the
warrantholder, by the payment of cash, certified or cashiers check, or wire
transfer, in an amount equal to the aggregate exercise price. The exercise
price applicable to the warrant is subject to the further adjustments described
below under the heading - Adjustments to the Warrant.
Upon exercise of the
warrant, certificates for the shares of common stock issuable upon exercise
will be issued to the warrantholder. We will not issue fractional shares upon
any exercise of the warrant. Instead, the warrantholder will be entitled to a
cash payment equal to the market price of our common stock on the last trading
day preceding the exercise of the warrant, less the pro-rated exercise price of
the warrant, for any fractional shares that would have otherwise been issuable
upon exercise of the warrant. We will at all times reserve the aggregate number
of shares of our common stock for which the warrant may be exercised. We have listed the shares of common stock
issuable upon exercise of the warrant with the Nasdaq Capital Market.
Rights as a
Shareholder.
The warrantholder shall have no rights or
privileges of the holders of our common stock, including any voting rights,
until (and then only to the extent) the warrant has been exercised.
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Transferability;
Restrictions on Exercise of Warrant.
The initial selling securityholder may not
transfer a portion of the warrant, and/or exercise the warrant, with respect to
more than one half of the shares of common stock subject to the warrant until
the earlier of the date on which we have received aggregate gross proceeds from
a qualified equity offering of at least $38,235,000 and December 31, 2009.
The warrant, and all rights under the warrant, are otherwise transferable and
exercisable.
Adjustments to the Warrant
- Adjustments in Connection with Stock Splits, Subdivisions, Reclassifications
and Combinations.
The
number of shares for which the warrant may be exercised and the exercise price
applicable to the warrant will be proportionately adjusted in the event we pay
dividends or make distributions of our common stock, subdivide, combine or
reclassify outstanding shares of our common stock.
Anti-dilution Adjustment
. Until the earlier of December 5, 2011
and the date the initial selling securityholder no longer holds the warrant
(and other than in certain permitted transactions described below), if we issue
any shares of common stock (or securities convertible or exercisable into
common stock) for less than 90% of the market price of the common stock on the
last trading day prior to pricing such shares, then the number of shares of
common stock into which the warrant is exercisable and the exercise price will
be adjusted. Permitted transactions include issuances:
·
as
consideration for or to fund the acquisition of businesses and/or related
assets;
·
in
connection with employee benefit plans and compensation related arrangements in
the ordinary course and consistent with past practice approved by our board of
directors;
·
in
connection with public or broadly marketed offerings and sales of common stock
or convertible securities for cash conducted by us or our affiliates pursuant
to registration under the Securities Act, or Rule 144A thereunder on a
basis consistent with capital-raising transactions by comparable financial
institutions; and
·
in
connection with the exercise of preemptive rights on terms existing as of December 5,
2008.
Other Distributions.
If we declare any dividends or distributions
greater than our most recent quarterly dividend, or dividends payable in common
stock, the exercise price of the warrant will be adjusted to reflect such
distribution.
Certain Repurchases
. If we effect a pro rata repurchase of
common stock, both the number of shares issuable upon exercise of the warrant
and the exercise price will be adjusted.
Business Combinations
. In the event of a merger, consolidation or
similar transaction involving Eagle and requiring shareholder approval, the
warrantholders right to receive shares of our common stock upon exercise of
the warrant shall be converted into the right to exercise the warrant for the
consideration that would have been payable to the warrantholder with respect to
the shares of common stock for which the warrant may be exercised, as if the
warrant had been exercised prior to such merger, consolidation or similar
transaction.
DESCRIPTION OF OUR CAPITAL STOCK
Our authorized capital stock consists of 50,000,000 shares of common
stock, $.01 par value, and 1,000,000 shares of undesignated preferred stock,
$.01 par value. As of December 31, 2008, there were 12,686,128 shares of
common stock outstanding and 38,235 shares of our Series A Preferred Stock
outstanding.
Common Stock.
Holders
of common stock are entitled to cast one vote for each share held of record, to
receive such dividends as may be declared by the Board of Directors out of
legally available funds, and, subject to the rights of any class of stock
having preference to the common stock, to share ratably in any distribution of
our assets after payment of all debts and other liabilities upon liquidation,
dissolution or winding up. Shareholders do not have cumulative voting rights or
preemptive rights or other rights to subscribe for additional shares, and the
common stock is not subject to conversion or redemption.
Pursuant
to the terms of the Letter Agreement and related Securities Purchase Agreement
Standard Terms, and the Articles Supplementary designating the terms of the Series A
Preferred Stock, our ability to declare
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or
pay dividends or distributions on, or purchase, redeem or otherwise acquire for
consideration, shares of Junior Stock (as defined below) and Parity Stock (as
defined below) is subject to restrictions, including a restriction against
paying any dividends on the common stock. These restrictions will terminate on
the earlier of (a) the third anniversary of the date of issuance of the Series A
Preferred Stock and (b) the date on which all of the Series A
Preferred Stock has been redeemed or Treasury has transferred all of the Series A
Preferred Stock to third parties.
In
addition, our ability to declare or pay dividends or distributions on, or
repurchase, redeem or otherwise acquire for consideration, shares of Junior
Stock and Parity Stock is subject to restrictions in the event that we fail to
declare and pay full dividends (or declare and set aside a sum sufficient for
payment thereof) on the Series A Preferred Stock.
Junior
Stock means our common stock and any other class or series of the Companys
stock the terms of which expressly provide that it ranks junior to the Series A
Preferred Stock as to dividend rights and/or rights on liquidation, dissolution
or winding up of the Company. Parity Stock means any class or series of the
Companys stock the terms of which do not expressly provide that such class or
series will rank senior or junior to the Series A Preferred Stock as to
dividend rights and/or rights on liquidation, dissolution or winding up of the
Company.
Our common stock is listed on the Nasdaq Capital Market under the
symbol EGBN. The shares of common
stock issuable upon exercise of the warrant in accordance with its terms, will
be fully paid, validly issued and nonassessable.
The Transfer Agent for the common stock is Computershare Shareholder
Services, 250 Royall Street, Canton, Massachusetts 02021.
Preferred
Stock.
The
Board of Directors may, from time to time, by action of a majority, issue
shares of the authorized, undesignated preferred stock, in one or more classes
or series. In connection with any such
issuance, the Board may by resolution determine the designation, voting rights,
preferences as to dividends, in liquidation or otherwise, participation,
redemption, sinking fund, conversion, dividend or other special rights or
powers, and the limitations, qualifications and restrictions of such shares of
preferred stock.
As of the date hereof, the
Board of Directors has created one series of preferred stock, the Series A
Preferred Stock, which was issued to the Treasury. The Series A Preferred Stock consists of
38,235 shares having a liquidation amount per share equal to $1,000. The Series A
Preferred Stock pays cumulative dividends at a rate of 5% per year for the
first five years and thereafter at a rate of 9% per year, prior to the payment
of dividends on any shares of Junior Stock. The Company may not redeem the Series A
Preferred Stock during the first three years except with the proceeds from a qualified
equity offering (as defined above). After three years, the Company may, at its
option, redeem the Series A Preferred Stock at the liquidation amount plus
accrued and unpaid dividends.
The Series A Preferred
Stock is non-voting, except in limited circumstances. Prior to the third
anniversary of issuance, unless the Company has redeemed all of the Series A
Preferred Stock or the Treasury has transferred all of the Series A Preferred
Stock to a third party, the consent of the Treasury will be required for the
Company to increase its common stock dividend or repurchase its common stock or
other equity or capital securities, other than in connection with benefit plans
consistent with past practice and certain other circumstances specified in the
Purchase Agreement. In the event that we do not pay dividends on the Series A
Preferred Stock for six dividend periods, whether or not consecutive,
the size of our board of directors will automatically be increased by two and
the holders of the Series A Preferred Stock shall have the right to elect
two directors to fill such newly created directorships at the next annual
meeting and at each subsequent annual meeting until all accrued and unpaid
dividends for all past dividend periods, including the latest completed
dividend period, on all outstanding shares of Series A Preferred Stock
have been declared and paid in full. The
foregoing description of the Series A Preferred Stock is qualified in its
entirety by reference to the Articles Supplementary to the Articles of
Incorporation designating such series.
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Selected Provisions of Our Articles of
Incorporation and Maryland Law
Consideration
of Business Combinations.
Our
Articles of Incorporation provide that where the board of directors evaluates
any actual or proposed business combination, it shall consider the following
factors: the effect of the business combination on the corporation and its
subsidiaries, and their respective shareholders, employees, customers and the
communities which they serve; the timing of the proposed business combination; the
risk that the proposed business combination will not be consummated; the
reputation, management capability and performance history of the person
proposing the business combination; the current market price of the corporations
capital stock; the relation of the price offered to the current value of the
corporation in a freely negotiated transaction and in relation to the directors
estimate of the future value of the corporation and its subsidiaries as an
independent entity or entities; tax consequences of the business combination to
the corporation and its shareholders; and such other factors deemed by the
directors to be relevant. In such considerations, the board of directors may
consider all or some of such factors as a whole and may or may not assign relative
weights to any of them. The foregoing is not intended as a definitive list of
factors to be considered by the board of directors in the discharge of their
fiduciary responsibility to the corporation and its shareholders, but rather to
guide such consideration and to provide specific authority for the
consideration by the board of directors of factors which are not purely
economic in nature in light of the circumstances of the corporation and its
subsidiaries at the time of such proposed business combination.
Amendment of the Articles of Incorporation
. In general, the Articles of Incorporation may
be amended upon the vote of two-thirds of the outstanding shares of capital
stock entitled to vote, the standard vote required under Maryland law. Unless the proposed amendment adversely
affects the rights of the Series A Preferred Stock, the holders of Series A
Preferred Stock will not have the right to vote on any amendment to the
Articles of Incorporation.
Restrictions
on Business Combinations with Interested Shareholders.
Section 3-602
of the Maryland General Corporation Law (MGCL), as in effect on the date
hereof, imposes conditions and restrictions on certain business combinations
(including, among other transactions, a merger, consolidation, share exchange,
or, in certain circumstances, an asset transfer or issuance of equity
securities) between a Maryland corporation and any person who beneficially owns
at least 10% of the corporations stock (an interested shareholder). Unless approved in advance by the board of
directors, or otherwise exempted by the statute, such a business combination is
prohibited for a period of five years after the most recent date on which the
interested shareholder became an interested shareholder. After such five-year
period, a business combination with an interested shareholder must be: (a) recommended
by the corporations board of directors, and (b) approved by the
affirmative vote of at least (i) 80% of the corporations outstanding
shares entitled to vote and (ii) two-thirds of the outstanding shares
entitled to vote which are not held by the interested shareholder with whom the
business combination is to be effected, unless, among other things, the
corporations common shareholders receive a fair price (as defined by the
statute) for their shares and the consideration is received in cash or in the
same form as previously paid by the interested shareholder for his or her
shares. The Articles of Incorporation and our bylaws do not include any
provisions imposing any special approval requirements for a transaction with a
major shareholder, and they do not opt out from the operation of Section 3-602.
Control
Share Acquisition Statute.
Under the MGCLs control share acquisition
law, as in effect on the date hereof, voting rights of shares of stock of a
Maryland corporation acquired by an acquiring person at ownership levels of
10%, 33-1/3% and 50% of the outstanding shares are denied unless conferred by a
special shareholder vote of two-thirds of the outstanding shares held by
persons other than the acquiring person and officers and directors of the
corporation or, among other exceptions, such acquisition of shares is made
pursuant to a merger agreement with the corporation or the corporations
charter or bylaws permit the acquisition of such shares prior to the acquiring
persons acquisition thereof. Unless a
corporations charter or bylaws provide otherwise, the statute permits such
corporation to redeem the acquired shares at fair value if the voting rights
are not approved or if the acquiring person does not deliver a control share
acquisition statement to the corporation on or before the tenth day after the
control share acquisition. The acquiring
person may call a shareholders meeting to consider authorizing voting rights
for control shares subject to meeting disclosure obligations and payment of
costs set out in the statute. If voting
rights are approved for more than fifty percent of the outstanding stock,
objecting shareholders may have their shares appraised and repurchased by the
corporation for cash. The Articles of Incorporation and Bylaws of Eagle do not
include any provisions restricting the voting ability of major shareholders,
and do not opt out from the operation of the control share acquisition law.
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PLAN OF
DISTRIBUTION
The selling securityholders
and their successors, including their transferees, may sell the securities
directly to purchasers or through underwriters, broker-dealers or agents, who
may receive compensation in the form of discounts, concessions or commissions
from the selling securityholders or the purchasers of the securities. These discounts,
concessions or commissions as to any particular underwriter, broker-dealer or
agent may be in excess of those customary in the types of transactions
involved.
The securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale or at negotiated
prices. These sales may be affected in transactions, which may involve crosses
or block transactions:
·
on
any national securities exchange or quotation service on which the preferred
stock or the common stock may be listed or quoted at the time of sale,
including, as of the date of this prospectus, the Nasdaq Capital Market in the
case of the common stock;
·
in
the over-the-counter market;
·
in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
·
through
the writing of options, whether the options are listed on an options exchange
or otherwise.
In addition, any securities
that qualify for sale pursuant to Rule 144 under the Securities Act may be
sold under Rule 144 rather than pursuant to this prospectus.
In connection with the sale
of the securities or otherwise, the selling securityholders may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the common stock issuable upon exercise of the warrant in the course
of hedging the positions they assume. The selling securityholders may also sell
short the common stock issuable upon exercise of the warrant and deliver common
stock to close out short positions, or loan or pledge the securities to
broker-dealers that in turn may sell these securities.
The aggregate proceeds to
the selling securityholders from the sale of the securities will be the
purchase price of the securities less discounts and commissions, if any.
In effecting sales,
broker-dealers or agents engaged by the selling securityholders may arrange for
other broker-dealers to participate. Broker-dealers or agents may receive
commissions, discounts or concessions from the selling securityholders in
amounts to be negotiated immediately prior to the sale.
In offering the securities
covered by this prospectus, the selling securityholders and any broker-dealers
who execute sales for the selling securityholders may be deemed to be underwriters
within the meaning of Section 2(a)(11) of the Securities Act in connection
with such sales. Any profits realized by the selling securityholders and the
compensation of any broker-dealer may be deemed to be underwriting discounts
and commissions. Selling securityholders who are underwriters within the
meaning of Section 2(a)(11) of the Securities Act will be subject to the
prospectus delivery requirements of the Securities Act and may be subject to
certain statutory and regulatory liabilities, including liabilities imposed
pursuant to Sections 11, 12 and 17 of the Securities Act and Rule 10b-5
under the Securities Exchange Act of 1934, or the Exchange Act.
In order to comply with the
securities laws of certain states, if applicable, the securities must be sold
in such jurisdictions only through registered or licensed brokers or dealers.
In addition, in certain states the securities may not be sold unless they have
been registered or qualified for sale in the applicable state or an exemption
from the registration or qualification requirement is available and is complied
with.
The anti-manipulation rules of
Regulation M under the Exchange Act may apply to sales of securities
pursuant to this prospectus and to the activities of the selling
securityholders. In addition, we will make copies of this prospectus available
to the selling securityholders for the purpose of satisfying the prospectus
delivery requirements of the Securities Act, which may include delivery through
the facilities of the Nasdaq Capital Market pursuant to Rule 153 under the
Securities Act.
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At the time a particular
offer of securities is made, if required, a prospectus supplement will set
forth the number and type of securities being offered and the terms of the
offering, including the name of any underwriter, dealer or agent, the purchase
price paid by any underwriter, any discount, commission and other item
constituting compensation, any discount, commission or concession allowed or
reallowed or paid to any dealer, and the proposed selling price to the public.
Unless requested by the
initial selling securityholder and required under the Letter Agreement and
related Securities Purchase Agreement Standard Terms, we do not intend to
list the warrant on any exchange. No
assurance can be given as to the liquidity of the trading market, if any, for
the warrant.
We have agreed to indemnify
the selling securityholders against certain liabilities, including certain
liabilities under the Securities Act. We have also agreed, among other things,
to bear substantially all expenses (other than underwriting discounts and
selling commissions) in connection with the registration and sale of the
securities covered by this prospectus.
SELLING
SECURITYHOLDERS
On December 5, 2008, we
issued the securities covered by this prospectus to the United States
Department of the Treasury, which is the initial selling securityholder under
this prospectus, in a transaction exempt from the registration requirements of
the Securities Act. The initial selling securityholder, or its successors,
including transferees, may from time to time offer and sell, pursuant to this
prospectus or a supplement to this prospectus, any or all of the securities
they own. The securities to be offered under this prospectus for the account of
the selling securityholders are:
·
a
warrant to purchase 770,867 shares of our common stock, representing beneficial
ownership of approximately 5.73% of our common stock as of December 31,
2008; and
·
770,867
shares of our common stock issuable upon exercise of the warrant, which shares,
if issued, would represent ownership of approximately 5.73% of our common stock
as of December 31, 2008.
For purposes of this
prospectus, we have assumed that, after completion of the offering covered by
this prospectus, none of the securities covered by this prospectus will be held
by the selling securityholders.
Beneficial ownership is
determined in accordance with the rules of the SEC and includes voting or
investment power with respect to the securities. To our knowledge, the initial
selling securityholder has sole voting and investment power with respect to the
securities.
We do not know when or in
what amounts the selling securityholders may offer the securities for sale. The
selling securityholders might not sell any or all of the securities offered by
this prospectus. Because the selling securityholders may offer all or some of
the securities pursuant to this offering, and because currently no sale of any
of the securities is subject to any agreements, arrangements or understandings,
we cannot estimate the number of the securities that will be held by the
selling securityholders after completion of the offering.
Other than with respect to
the acquisition of the securities, the initial selling securityholder has not
had a material relationship with us.
Information about the
selling securityholders may change over time and changed information will be
set forth in supplements to this prospectus if and when necessary.
LEGAL MATTERS
The
validity of the warrant and the common stock offered hereby have been passed
upon for us by the law firm of Kennedy & Baris, L.L.P., Bethesda,
Maryland. Attorneys at Kennedy &
Baris, L.L.P. own an aggregate of approximately 8,250 shares of common stock.
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EXPERTS
The
consolidated financial statements of Eagle and the report on the effectiveness
of Eagles internal control over financial reporting incorporated in this
prospectus by reference to our Annual Report on Form 10-K for the year
ended December 31, 2007, as amended, have been so incorporated in reliance
on the reports of Stegman & Company, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and
accounting.
The consolidated
financial statements of Fidelity at December 31, 2007 and 2006 and for
each of the two years in the period ended December 31, 2007 incorporated
by reference in this prospectus have been audited by Deloitte &
Touche, LLP, an independent registered public accounting firm, as stated in
their reports, incorporated by reference herein, and have been incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
WHERE YOU
CAN FIND ADDITIONAL INFORMATION ABOUT EAGLE BANCORP
AND DOCUMENTS INCLUDED WITH THIS PROSPECTUS
We file annual, quarterly, and current reports, proxy
statements and other information with the Securities and Exchange Commission.
You may read and copy, at prescribed rates, any documents we have filed with
the SEC at its Public Reference Room located at 100 F Street, N.E.,
Washington, DC 20549. You may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. We also file these
documents with the SEC electronically. You can access the electronic versions
of these filings on the SECs internet website found at http://www.sec.gov. You
may also obtain free copies of the documents we have filed with the SEC (other
than exhibits to such documents unless we specifically incorporate by reference
an exhibit in this proxy statement/prospectus) by contacting Jane E. Cornett,
Corporate Secretary, Eagle Bancorp, Inc. 7815 Woodmont Avenue, Bethesda,
Maryland 20814, telephone 301.986.1800 or from our internet website at
http://www.eaglebankcorp.com.
We have filed with the SEC a registration
statement on Form S-3 relating to the securities covered by this
prospectus. This prospectus is a part of the registration statement and does
not contain all the information in the registration statement. Whenever a
reference is made in this prospectus to a contract or other document, the
reference is only a summary and you should refer to the exhibits that are a part
of the registration statement for a copy of the contract or other document. You
may review a copy of the registration statement at the SECs Public Reference Room in
Washington, D.C., as well as through the SECs internet website.
The SEC allows us to incorporate by reference
information into this prospectus from the documents listed below that we have
previously filed with the SEC (file no. 000-25923) This means that we can
disclose important information to you by referring you to another document
without restating that information in this document. Any information
incorporated by reference into this prospectus is considered to be part of this
prospectus from the date we file that document. Any reports filed by us with
the SEC after the date of this prospectus supplement will automatically update
and, where applicable, supersede, any information contained in this prospectus
or incorporated by reference in this prospectus.
We incorporate by reference into this prospectus
the following documents or information filed with the SEC (other than, in each
case, documents, or information deemed to have been furnished and not filed in
accordance with SEC rules):
(a)
Our
Annual Report on Form 10-K for the year ended December 31, 2007, as
amended;
(b)
Our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2008,
June 30, 2008 and September 30, 2008; and
(c)
Our
Current Reports on Form 8-K and 8-K/A filed on January 23, 2008, January 24,
2008, April 25, 2008, July 16, 2008, July 18, 2008, July 25,
2008, August 15, 2008, September 2, 2008, October 23, 2008, October 28,
2008, November 10, 2008, November 24, 2008 December 8, 2008 and December 22,
2008.
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Also incorporated by reference are additional
documents that we may file with the SEC under Section 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus and before the termination of the offering. These additional
documents will be deemed to be incorporated by reference, and to be a part of,
this prospectus from the date of their filing. These documents include proxy
statements and periodic reports, such as Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q, and, to the extent they are considered
filed, Current Reports on Form 8-K. Information incorporated by reference
from later filed documents supersedes information that is included in this
prospectus or any applicable prospectus supplement or is incorporated by
reference from earlier documents, to the extent that they are inconsistent.
You should rely only
on the information contained or incorporated by reference in this
prospectus. We have not authorized
anyone to provide you with information that is different from what is contained
in this prospectus. This prospectus is dated January ,
2009. You should not assume that the
information contained in this prospectus is accurate as of any date other than
that date.
12
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PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 14.
Other Expenses of Issuance and
Distribution
SEC Registration Fee
|
|
$
|
225
|
|
*Legal Fees and Expenses
|
|
$
|
10,000
|
|
*Accountants Fees and Expenses
|
|
$
|
5,000
|
|
*Printing, Engraving and Edgar
|
|
$
|
2,500
|
|
*Miscellaneous
|
|
$
|
7,275
|
|
Total
|
|
$
|
25,000
|
|
Item 15.
Indemnification of Directors and
Officers
Article VI of the Companys 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 predecessors
existence ceased upon consummation of the transaction.
(3)
Expenses include
attorneys 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.
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(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 directors 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 Articles of Incorporation:
(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 directors 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.
(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 directors 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.
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(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 Articles of Incorporation, 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 Articles of Incorporation, 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 corporations 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 directors 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 directors 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 Articles of Incorporation:
(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
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 persons 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 16. Exhibits
The exhibits filed as part of this
registration statement are as follows:
(a)
List of
Exhibits
Number
|
|
Description
|
4.1
|
|
Warrant to Purchase Common Stock (1)
|
10.1
|
|
Letter Agreement (including Securities Purchase Agreement Standard
Terms) between the Company and the United States Department of the Treasury
with respect to the Series A Preferred Stock (1)
|
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Number
|
|
Description
|
5
|
|
Opinion of Kennedy & Baris, LLP
|
23.1
|
|
Consent of Stegman & Company, Independent Registered Public
Accounting Firm
|
23.2
|
|
Consent of Deloitte & Touche, LLP, Independent Registered
Public Accounting Firm
|
23.3
|
|
Consent of Kennedy& Baris, LLP (included in Exhibit 5)
|
24
|
|
Power of Attorney (included on signature page)
|
(1) Incorporated by reference to
exhibit of the same number to Eagles Current Report on Form 8-K filed on December 8,
2008.
Item 17.
Undertakings
Rule 415 Offering
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 the volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b)) if,
in the aggregate, the changes in volume and price represent no more than 20%
change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; 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 (1)(i), (1)(ii) and (1)(iii) do not
apply if the registration statement is on Form S-3 or Form F-3, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement or is contained in a final prospectus filed pursuant to Rule 424(b) that
is part of 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 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.
(4) [Intentionally omitted.]
(5) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the
Registration Statement as of the date filed prospectus was deemed part of and
included in the Registration Statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a Registration Statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
Registration Statement as of the earlier of the date such form of prospectus is
first used
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Table of Contents
after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
Registration Statement relating to the securities in the Registration Statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a Registration Statement or prospectus that
is part of the Registration Statement or made in a document incorporated or
deemed incorporated by reference into the Registration Statement or prospectus
that is part of the Registration Statement will, as to the purchaser with a
time of contract of sale prior to such effective date, supersede or modify any
statement that was made in the Registration Statement or prospectus that was
part of the Registration Statement or made in any such document immediately
prior to such effective date.
Filings Incorporating Subsequent
Exchange Act Documents By Reference
The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrants annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans 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.
Request for Acceleration of Effective Date or Filing
of Registration Statement on Form S-8
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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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Table of Contents
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-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Bethesda, Maryland, on January 5, 2009.
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EAGLE BANCORP, INC.
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By:
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/s/ Ronald D. Paul
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Ronald D. Paul, President
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POWER OF ATTORNEY
We, the undersigned
directors and officers of the Registrant hereby severally constitute and
appoint Ronald D. Paul and Michael T. Flynn, or either of them, as our true and
lawful attorney and agent, to do any and all things in our names in the
capacities indicated below which either of them may deem necessary or advisable
to enable the Registrant to comply with the Securities Act of 1933, and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with the registration statement on Form S-3 relating to the
offering of the Registrants shares of Series A Preferred Stock and the
shares of common stock into which they may be converted, including
specifically, but not limited to, power and authority to sign for us in our
names in the capacities indicated below the registration statement and any and
all amendments (including post-effective amendments) thereto; and we hereby
approve, ratify and confirm all that said Ronald D. Paul and Michael T. Flynn,
or either of them, shall do or cause to be done by virtue thereof.
Pursuant to
the requirements of the Securities Act of 1933, this registration statement has
been signed below by the following persons in the capacities and on the dates
indicated.
Name
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Position
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Date
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/s/ Leonard L. Abel
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Director
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January 5, 2009
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Leonard L. Abel
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/s/Leslie M. Alperstein
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Director
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January 5, 2009
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Leslie M. Alperstein
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/s/ Dudley C. Dworken
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Director
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January 5, 2009
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Dudley C. Dworken
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/s/ Harvey M . Goodman
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Director
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January 5, 2009
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Harvey M. Goodman
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/s/ Neal R, Gross
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Director
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January 5, 2009
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Neal R. Gross
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/s/ Philip N. Margolius
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Director
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January 5, 2009
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Philip N. Margolius
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/s/ Ronal D. Paul
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President, Chairman and Principal
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January 5, 2009
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Ronald D. Paul
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Executive Officer of the Company
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/s/ Robert P. Pincus
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Director
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January 5, 2009
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Robert P. Pincus
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/s/ Norman R. Pozez
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Director
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January 5, 2009
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Norman R. Pozez
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Table of Contents
/s/ Donald R. Rogers
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Director
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January 5, 2009
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Donald R. Rogers
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/s/ Leland M. Weinstein
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Director
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January 5, 2009
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Leland M. Weinstein
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/s/ James H. Langmead
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Chief Financial Officer of the Company
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January 5, 2009
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James H. Langmead
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Principal Financial and Accounting Officer
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