As filed with the Securities and Exchange Commission on January 25, 2012
Registration No. 333-170862
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
WESTERN
LIBERTY BANCORP
(Exact Name of Registrant As Specified in Its Charter)
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Delaware
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26-0469120
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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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8363 W. Sunset Road, Suite 350
Las Vegas, Nevada 89113
(702) 966-7400
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Patricia A. Ochal
Western Liberty Bancorp
8363 W. Sunset Road, Suite 350
Las Vegas, Nevada 89113
(702) 966-7400
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies
to:
Jeffrey A. Horwitz, Esq.
Frank J. Lopez, Esq.
Proskauer Rose LLP
Eleven Times Square
New York, New York 10036
Telephone: (212) 969-3000
Fax: (212) 969-2900
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.
¨
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
¨
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 registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General Instruction 1.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:
¨
If this Form
is a post-effective amendment to a registration statement filed pursuant to General Instruction 1.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box:
¨
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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of
the Exchange Act. (Check one):
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Large Accelerated Filer
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¨
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Accelerated Filer
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¨
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Non-Accelerated Filer
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¨
(Do not check if a smaller reporting company)
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Smaller Reporting Company
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x
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The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its
effective date until the Registrant will file a further amendment which specifically states that this Registration Statement will thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended or until
this Registration Statement will become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note
The prospectus included in this registration statement relates solely to shares of the registrant’s common stock previously
registered but not sold under the Form S-1 Registration Statement (File no. 333-170862), as amended, which was declared effective by the Securities and Exchange Commission (the “
SEC
”) on April 21, 2011 (the “
S-1
Registration Statement
”). This Form S-3 Registration Statement, which is a new registration statement, shall constitute, upon effectiveness, a post-effective amendment to the S-1 Registration Statement. A registration fee of $663.57 was
paid in connection with the registration of the sale of shares of common stock pursuant to the S-1 Registration Statement. If any such previously registered securities are or have been sold under the S-1 Registration Statement prior to the effective
date of this Form S-3 Registration Statement, they will not be included in the prospectus included in this Form S-3 Registration Statement.
The information in this prospectus is not complete and may be changed. These securities
may not be sold nor may offers to buy these securities be accepted pursuant to this prospectus prior to the time the registration statement filed with the Securities and Exchange Commission becomes effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 25, 2012
PROSPECTUS FOR
UP TO 980,117 SHARES OF COMMON STOCK
This prospectus relates to the
resale of up to 980,117 shares of Western Liberty Bancorp’s (“
WLBC,
” the “
Company,
” “
we,
” “
us,
” or “
our
”) common stock, par value $0.0001 per share
(“
Common Stock
”) by certain selling security holders.
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630,117 shares of Common Stock issued in a private placement concurrent with our initial public offering or upon exercise of warrants (the
“
Private Warrants
”) that were either (i) issued in a private placement concurrent with our initial public offering or (ii) exchanged for shares of Common Stock issued in a private placement in accordance with
Section 3(a)(9) of the Securities Act of 1933, as amended (the “
Securities Act
”), and pursuant to privately negotiated agreements (collectively, the “
Private Shares
”). The Private Warrants were automatically
exercised into one thirty-second of one share of Common Stock on October 28, 2010, in connection with our acquisition (the “
Acquisition
”) of Service1
st
Bank of Nevada, a Nevada-chartered non-member bank
(“
Service1
st
”), in accordance with the terms of that certain Second Amended and Restated Warrant Agreement, dated September 27, 2010, between WLBC and Continental Stock Transfer & Trust Company, as
warrant agent (the “
Amended Warrant Agreement
”). No cash consideration was paid by the holders of Private Warrants in connection with such exercise.
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150,000 shares of Common Stock issued by us to certain current and former members of our board of directors (the “
Board
”) in
connection with the Acquisition (“
Restricted Stock
”).
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200,000 shares of Common Stock underlying restricted stock units (“
Restricted Stock Units
”) granted by us to certain of our current
and former directors, officers and consultants in connection with the Acquisition. Each Restricted Stock Unit is immediately and fully vested and shall be settled for one share of Common Stock on the earlier to occur of (i) a change of control
of WLBC and (ii) October 28, 2013. No additional consideration shall be paid by the holders of such Restricted Stock Units in connection with such settlement
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This prospectus provides you with detailed information about WLBC,
Service1
st
and other matters. You are encouraged to read
carefully the entire document.
IN PARTICULAR, YOU SHOULD CAREFULLY CONSIDER THE MATTERS DISCUSSED UNDER “
RISK FACTORS
” IN THE DOCUMENTS INCORPORATED BY REFERENCE
HEREIN.
Our Common Stock is listed on the Nasdaq Global Market (“
Nasdaq
”) under the symbol
“WLBC.” The selling security holders and any of their pledgees, donees, assignees, transferees and successors-in-interest may, from time to time, sell any or all of their shares of Common Stock on Nasdaq or any other stock exchange, market
or trading facility on which the shares of Common Stock are traded or in private transactions. These sales may be at fixed or negotiated prices.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The prospectus is dated , 2012.
TABLE OF CONTENTS
SUMMARY
This summary highlights selected information about us and this prospectus. It may not contain all of the information that is important
to you. You are urged to carefully read the entire prospectus and the other documents referred to in this prospectus and incorporated by reference herein because the information in this section does not provide all the information that might be
important to you with respect to purchasing our Common Stock. See the sections entitled “
Where You Can Find More Information
” and “
Incorporation of Certain Documents by Reference
.”
Western Liberty Bancorp
We became a bank holding company on October 28, 2010 with consummation of the Acquisition. Service1
st
is our commercial bank subsidiary. We also formed a new subsidiary, Las Vegas Sunset Properties, in December 2011 to
hold problem loans (including performing and nonperforming loans) and foreclosed real estate of Service1
st
. We currently conduct no business activities other than acting as the holding company of Service1
st
and Las Vegas Sunset Properties.
Service1
st
Bank
of Nevada
Established on January 16, 2007, Service1
st
operates as a traditional community bank and provides a full range
of deposit, lending and other banking services to locally owned businesses, professional firms, individuals and other customers from its headquarters and two retail banking facilities located in the greater Las Vegas area. Services provided include
basic commercial and consumer depository services, commercial working capital and equipment loans, commercial real estate loans and other traditional commercial banking services. Most of Service1
st
’s business is generated in the Nevada market.
Our Common Stock trades on Nasdaq under the symbol WLBC.
The mailing address of our principal executive office is 8363 W. Sunset Road, Suite 350, Las Vegas, Nevada 89113, and our telephone number is (702) 966-7400.
The Offering
This
prospectus relates to the resale of up to 980,117 shares of Common Stock by certain selling security holders, consisting of:
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630,117 Private Shares;
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150,000 shares of Restricted Stock; and
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200,000 shares of Common Stock underlying the Restricted Stock Units. For a more information about the selling security holders, see the section
entitled “
Selling Security Holders
.” For a description of the Common Stock, see the section entitled “
Description of Securities — Common Stock
.”
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RISK FACTORS
Before you invest in our securities, in addition to the other information, documents or reports included or incorporated by reference in
this prospectus, you should carefully consider the risk factors in the section entitled “Risk Factors” in any prospectus supplement as well as in our Annual Report on Form 10-K for the year ended December 31, 2010, in the section
entitled “
Risk Factors
”, and incorporated by reference into this prospectus, as the same may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. Each of the risks described
in these sections and documents could materially and adversely affect our business, financial condition, results of operations and prospects, and could result in a partial or complete loss of your investment.
2
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements made in this prospectus and the information incorporated by reference herein constitute
forward-looking statements. Forward-looking statements include statements preceded by, followed by or that include the words “may,” “could,” “would,” “should,” “believe,” “expect,”
“anticipate,” “plan,” “estimate,” “target,” “project,” “potential,” “intend” or similar expressions. These statements include, among others, statements regarding our expected
business outlook, anticipated financial and operating results, business strategy and means to implement the strategy, the amount and timing of capital expenditures, the likelihood of our success in building our business, financing plans, budgets,
working capital needs and sources of liquidity. We believe it is important to communicate our expectations. However, there may be events in the future that we are not able to predict accurately or over which we have no control.
Forward-looking statements, estimates and projections are based on management’s beliefs and assumptions, are not guarantees of
performance and may prove to be inaccurate. Forward-looking statements also involve risks and uncertainties that could cause actual results to differ materially from those contained in any forward-looking statement and which may have a material
adverse effect on our business, financial condition, results of operations and liquidity. A number of important factors could cause actual results or events to differ materially from those indicated by forward-looking statements. These risks and
uncertainties include, but are not limited to, the following:
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revenues may be lower than expected;
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deposit attrition, operating costs and customer loss may be greater than expected;
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local, regional, national and international economic conditions and the impact they may have on us and our customers and our assessment of that impact;
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changes in interest rates, spreads on earning assets and interest-bearing liabilities, and interest rate sensitivity;
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prepayment speeds, loan originations and credit losses;
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our common shares outstanding and Common Stock price volatility;
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fair value of and number of stock-based compensation awards to be issued in future periods;
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legislation affecting the financial services industry as a whole;
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regulatory supervision and oversight, including required capital levels;
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increasing price and product/service competition by competitors, including new entrants;
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rapid technological developments and changes;
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ability to continue to introduce competitive new products and services on a timely, cost-effective basis;
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ability to contain costs and expenses;
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governmental and public policy changes;
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protection and validity of intellectual property rights;
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reliance on large customers;
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technological, implementation and cost/financial risks in large, multi-year contracts;
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the outcome of any pending and future litigation and governmental proceedings;
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continued availability of financing; and
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financial resources in the amounts, at the times and on the terms required to support our future businesses.
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Investors are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this
prospectus. Additional information on these and other factors that may cause actual results and our performance to differ materially is included in the section entitled “
Risk Factors
” in our Annual Report on Form 10-K for the year
ended December 31, 2010 and in our other periodic reports filed with the SEC and incorporated by reference herein.
All
forward-looking statements included herein are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. Except to the extent required by applicable laws and regulations, we undertake no obligations
to update these forward-looking statements to reflect events or circumstances after the date of this prospectus or to reflect the occurrence of unanticipated events.
4
SELLING SECURITY HOLDERS
Up to 980,117 shares of Common Stock will be registered for resale by the selling security holders under this prospectus, including
(i) 630,117 Private Shares, (ii) 150,000 shares Restricted Stock and (iii) 200,000 shares of Common Stock underlying the Restricted Stock Units.
To the extent permitted by law, the selling security holders listed below may resell the aforementioned shares of Common Stock pursuant to this prospectus. We have registered the sale of such shares of
Common Stock to permit the selling security holders and their respective permitted transferees or other successors-in-interest that receive any such shares of Common Stock from the selling security holders after the date of this prospectus to resell
such shares of Common Stock.
The following table sets forth the unregistered Common Stock (including shares of Common Stock
underlying the Restricted Stock Units) being offered pursuant to this prospectus by the selling security holders as of January 25, 2012. The selling security holders are not making any representation that any shares of Common Stock covered by
this prospectus will be offered for sale. The selling security holders reserve the right to accept or reject, in whole or in part, any proposed sale of Common Stock. The following table assumes that all shares of Common Stock being registered
pursuant to this prospectus will be sold.
None of the selling security holders are broker-dealers. Any selling security
holder that is an affiliate of a broker-dealer acquired his, her or its shares being registered herein for resale in the ordinary course of business and at the time of such acquisition, such security holder had no agreements or understandings,
directly or indirectly, with any person to distribute such securities.
Beneficial ownership is determined in accordance with
the rules of the SEC and includes voting or investment power with respect to shares of Common Stock. Unless otherwise indicated below, to our knowledge, all persons named in the table have or will have sole voting and/or investment power with
respect to the Common Stock (including the Common Stock underlying the Restricted Stock Units) described in the table below. The inclusion of any Common Stock underlying Restricted Stock Units in this table does not constitute an admission of
beneficial ownership for the person named below.
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Name of Selling Security Holder
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Number of
Common
Shares
Beneficially
Owned
Prior to
Offering(1)
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Number of
Common
Shares
Offered(2)
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Number of
Common
Shares
Beneficially
Owned
After
Offering(3)
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% Beneficially
Owned
After
Offering
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Laura Conover-Ferchak(4)
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15,000
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15,000
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—
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—
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Robert Foresman(5)
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25,000
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25,000
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—
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—
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Gabelli Group Capital Partners, Inc.(6)
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7,173
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7,173
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—
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—
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Cari and David Grodner
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7,886
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7,886
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—
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—
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Cari Grodner
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47
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47
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—
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—
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Cari Lehman
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7,446
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7,446
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—
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—
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5
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Name of Selling Security Holder
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Number of
Common
Shares
Beneficially
Owned
Prior to
Offering(1)
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Number of
Common
Shares
Offered(2)
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Number of
Common
Shares
Beneficially
Owned
After
Offering(3)
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% Beneficially
Owned
After
Offering
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Carl H. Hahn(5)
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25,000
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25,000
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—
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—
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Jonathan Hamel
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5,000
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5,000
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—
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—
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Samir Jain
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10,000
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10,000
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—
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—
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Philip Marineau(5)
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25,000
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25,000
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—
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—
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Andrew Nelson(7)
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50,165
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50,165
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—
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—
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Christa Short
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25,000
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25,000
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—
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—
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Steven Westly(5)
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25,000
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25,000
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—
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—
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Jason N. Ader(8)
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450,372
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450,372
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—
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—
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Atlas Master Fund, Ltd.(9)
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20,012
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20,012
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—
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—
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Tim Collins
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312
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312
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—
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—
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Doha Partners I, LP(8)
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306,960
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306,960
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—
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—
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HC Institutional Partners LP(8)
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652
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652
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—
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—
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HC Overseas Partners Ltd.(8)
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18,215
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18,215
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—
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—
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HC Turbo Fund Ltd.(8)
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4,596
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4,596
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—
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—
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MZ Capital LLC(10)
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950
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950
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—
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—
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Pictet & Cie(11)
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326
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326
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—
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—
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Unidentified Shareholders(12)
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500
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500
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—
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—
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Michael Frankel(13)
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50,000
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50,000
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—
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—
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Richard Coles(13)
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50,195
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50,195
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—
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—
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Mark Schulhof(13)
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50,000
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50,000
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—
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—
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Daniel B. Silvers(14)
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100,000
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100,000
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—
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—
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Michael Tew(15)
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20,000
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20,000
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—
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—
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Sophia Adeline Ader 2005 Trust(8)
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50
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50
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—
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—
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HF Investments, LP(16)
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200
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200
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—
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—
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Ezra Sultan
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261
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261
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—
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—
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Jack Richard Ader Trust(8)
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36
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36
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—
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—
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Daniel M. Groff & Lesley K. Groff
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33
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33
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—
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—
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Pamela Ader
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2,141
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2,141
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—
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—
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Sasson 2006 GRAT(17)
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964
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964
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—
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—
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Steven Starker
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217
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217
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—
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—
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Julie Ader(8)
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94
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94
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—
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—
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Sylvia and Robert Kirschner
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42
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42
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—
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—
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MNF Partners, L.P.(16)
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447
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447
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—
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—
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Harold Reiff
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61
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61
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—
|
|
|
|
—
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Selling Security Holder
|
|
Number of
Common
Shares
Beneficially
Owned
Prior to
Offering(1)
|
|
|
Number of
Common
Shares
Offered(2)
|
|
|
Number of
Common
Shares
Beneficially
Owned
After
Offering(3)
|
|
|
% Beneficially
Owned
After
Offering
|
|
|
Amber Williams as Trustee under Indenture of Michael Coles dated September 26, 1997(18)
|
|
|
160
|
|
|
|
160
|
|
|
|
—
|
|
|
|
—
|
|
|
Laura Conover-Ferchak & William Ferchak
|
|
|
7
|
|
|
|
7
|
|
|
|
—
|
|
|
|
—
|
|
|
Marc Soloway & Rene Soloway
|
|
|
5
|
|
|
|
5
|
|
|
|
—
|
|
|
|
—
|
|
|
Chelsea Capital Corporation(19)
|
|
|
280
|
|
|
|
280
|
|
|
|
—
|
|
|
|
—
|
|
|
Herb S. & Rachelle Soloway Family Trust dated April 9, 1996(20)
|
|
|
36
|
|
|
|
36
|
|
|
|
—
|
|
|
|
—
|
|
|
Robert & Andrea Fortunoff
|
|
|
229
|
|
|
|
229
|
|
|
|
—
|
|
|
|
—
|
|
|
Jeffrey DeGreick
|
|
|
299
|
|
|
|
299
|
|
|
|
—
|
|
|
|
—
|
|
|
BABS REIFF Retirement Plan(21)
|
|
|
84
|
|
|
|
84
|
|
|
|
—
|
|
|
|
—
|
|
|
Craig Colby
|
|
|
336
|
|
|
|
336
|
|
|
|
—
|
|
|
|
—
|
|
|
HSBCSSL A/C HSBC France A/C LMH(22)
|
|
|
2,908
|
|
|
|
2,908
|
|
|
|
—
|
|
|
|
—
|
|
|
SSCSIL A/C HSBC Global Strategy Hedge Investments Limited(23)
|
|
|
412
|
|
|
|
412
|
|
|
|
—
|
|
|
|
—
|
|
|
SSCSIL A/C HSBC Wealth Accumulation Investments Limited(23)
|
|
|
163
|
|
|
|
163
|
|
|
|
—
|
|
|
|
—
|
|
|
SSCSIL A/C HSBC Republic US Advantage Investments Limited(23)
|
|
|
790
|
|
|
|
790
|
|
|
|
—
|
|
|
|
—
|
|
|
(1)
|
Represents shares of Common Stock currently held by such selling security holder, including Private Shares, shares of Restricted Stock or shares of Common Stock
underlying Restricted Stock Units currently held by such selling security holder.
|
|
(2)
|
Unless otherwise noted, represents Private Shares.
|
|
(3)
|
This table assumes that each selling security holder will sell all of the shares of Common Stock being offered for sale by such selling security holder in this
prospectus. Selling security holders are not required to sell their shares, and none of the selling security holders have indicated if and when they intend to sell their shares.
|
|
(4)
|
Represents 10,000 Private Shares and shares of Common Stock underlying 5,000 Restricted Stock Units granted to Ms. Conover-Ferchak on
October 28, 2010, in consideration of her substantial service to and support of WLBC during the period in which we sought the requisite regulatory approval to become a bank holding company in connection with the Acquisition. Each Restricted
Stock Unit is immediately and fully
|
7
|
|
vested and shall be settled for one share of Common Stock of WLBC on the earlier to occur of (i) a change of control and (ii) October 28, 2013 (the “
Settlement
Date
”), and no additional consideration shall be paid by the holders of such Restricted Stock Units in connection with such settlement.
|
|
(5)
|
Messrs. Hahn, Marineau, Westly and Foresman are each former members of the Board.
|
|
(6)
|
Mario J. Gabelli is the natural person who has or shares voting and dispositive powers over the securities owned by Gabelli Group Capital Partners, Inc.
|
|
(7)
|
Mr. Nelson is our former Chief Financial Officer and Assistant Secretary, and a former member of the Board. Represents 25,165 Private Shares, and shares of Common
Stock underlying 25,000 Restricted Stock Units granted to Mr. Nelson on October 28, 2010, in consideration of his substantial service to and support of WLBC during the period in which we sought the requisite regulatory approval to become a
bank holding company in connection with the Acquisition. Each Restricted Stock Unit is immediately and fully vested and shall be settled for one share of Common Stock of WLBC on the earlier to occur of (i) a change of control and (ii) the
Settlement Date, and no additional consideration shall be paid by the holders of such Restricted Stock Units in connection with such settlement.
|
|
(8)
|
Mr. Ader is our former Chairman and Chief Executive Officer, and a current member of the Board. On July 16, 2007, our former sponsor, Hayground Cove Asset
Management LLC (“
Hayground Cove
”), of which Mr. Ader is the sole member, and the funds and accounts it manages, purchased 8,348,500 Private Shares. On July 29, 2009, we entered into a Private Shares Restructuring Agreement
with Hayground Cove, pursuant to which 7,618,908 of the Private Shares were cancelled and exchanged for Private Warrants, resulting in 368,306 Private Shares (prior to conversion of any Private Warrants) and 16,118,908 Private Warrants.
|
On November 27, 2007, Hayground Cove purchased 7,500,000 Private Warrants from us. As
part of an Amended Warrant Agreement entered into on September 27, 2010, all of our outstanding warrants, including the Private Warrants, were exercised into one thirty-second (
1
/
32
) of one share of Common Stock concurrently with the consummation of the Acquisition. Represents 69,764 shares held in
Mr. Ader’s individual capacity, 330,428 shares of Common Stock held by Hayground Cove, through Doha Partners I, LP, HC Institutional Partners LP, HC Overseas Partners Ltd. and HC Turbo Fund Ltd. and 180 shares held for the
account of his immediate family, each as set forth in this table. Hayground Cove is controlled by Jason N. Ader and he and his father are investors in Hayground Cove.
On May 16, 2011, Hayground Cove changed its name to Ader Investment Management. On May 16, 2011, HC Institutional Partners LP became Ader Long/Short Fund LP; Overseas Partners Ltd. became Ader Offshore
Long/Short Fund Ltd; HC Turbo Fund Ltd. became Ader Offshore Levered Long/Short Fund Ltd.
Also represents shares of Common
Stock underlying 50,000 Restricted Stock Units granted to Mr. Ader on October 28, 2010, in consideration of his substantial service to and support of WLBC during the period in which we sought the requisite regulatory approval to become a
bank holding company in connection with the Acquisition. Each Restricted Stock Unit is immediately and fully vested and shall be settled for one share of Common Stock of WLBC on the earlier to occur of (i) a change of control and (ii) the
8
Settlement Date, and no additional consideration shall be paid by the holders of such Restricted Stock Units in connection with such settlement.
|
(9)
|
Dmitry Balyasny is the natural person who has or shares voting and dispositive powers over the securities owned by Atlas Master Fund, Ltd.
|
|
(10)
|
Scott Zelnick and Patrick McBrien are the natural persons who have or share voting and dispositive powers over the securities owned by MZ Capital LLC.
|
|
(11)
|
Philippe Bertherat, Rémy Best, Renaud de Planta, Jacques de Saussure, Bertrand Demole, Jean-Francois Demole, Marc Pictet and Nicolas Pictet are the natural
persons who have or share voting and dispositive powers over the securities owned by Pictet & Cie.
|
|
(12)
|
The Company was unable to identify the natural person or persons who have or share voting and dispositive powers over the securities owned by these shareholders. If the
securities are to be registered in the future, the Company will identify the natural person or persons who have or share voting and dispositive powers over the securities in a post-effective amendment.
|
|
(13)
|
Mr. Frankel is the current Chairman of the Board. Mr. Coles is a current member of the Board. Mr. Schulhof is a former member of the Board. On
October 28, 2010, in consideration of their substantial service to and support of WLBC during the period in which we sought the requisite regulatory approval to become a bank holding company in connection with the Acquisition, WLBC made a
one-time grant of 50,000 shares of Restricted Stock to each of Mr. Frankel, Mr. Coles and Mr. Schulhof.
|
|
(14)
|
Mr. Silvers is our former President. Represents shares of Common Stock underlying 100,000 Restricted Stock Units granted to Mr. Silvers on October 28,
2010, in consideration of his substantial service to and support of WLBC during the period in which we sought the requisite regulatory approval to become a bank holding company in connection with the Acquisition. Each Restricted Stock Unit is
immediately and fully vested and shall be settled for one share of Common Stock of WLBC on the earlier to occur of (i) a change of control and (ii) the Settlement Date, and no additional consideration shall be paid by the holders of such
Restricted Stock Units in connection with such settlement.
|
|
(15)
|
Represents shares of Common Stock underlying 20,000 Restricted Stock Units granted to Mr. Tew on October 28, 2010, in consideration of his substantial service
to and support of WLBC during the period in which we sought the requisite regulatory approval to become a bank holding company in connection with the Acquisition. Each Restricted Stock Unit is immediately and fully vested and shall be settled for
one share of Common Stock of WLBC on the earlier to occur of (i) a change of control and (ii) the Settlement Date, and no additional consideration shall be paid by the holders of such Restricted Stock Units in connection with such
settlement.
|
|
(16)
|
Peter Marks is the natural person who has or shares voting and dispositive powers over the securities owned HF Investments, LP, and MNF Partners, L.P.
|
9
|
(17)
|
Andrew Sasson is the natural person who has or shares voting and dispositive powers over the securities owned by Sasson 2006 GRAT.
|
|
(18)
|
Michael Coles is the natural person who has or shares voting and dispositive powers over the securities owned by Amber Williams as Trustee under Indenture of Michael
Coles dated September 26, 1997.
|
|
(19)
|
Robert Fortunoff is the natural person who has or shares voting and dispositive powers over the securities owned by Chelsea Capital Corporation.
|
|
(20)
|
Herb S. Soloway and Rachelle Soloway are the natural persons who have or share voting and dispositive powers over the securities owned by Herb S. & Rachelle
Soloway Family Trust dated April 9, 1996.
|
|
(21)
|
Babs Reiff and Hal Reiff are the natural persons who have or share voting and dispositive powers over the securities owned by BABS REIFF Retirement Plan.
|
|
(22)
|
Bernard Galdin and Anthony Baillin are the natural persons who have or share voting and dispositive powers over the securities owned by HSBCSSL A/C HSBC France A/C LMH.
|
|
(23)
|
Tim Gascoigne is the natural person who has or shares voting and dispositive powers over the securities owned by SSCSIL A/C HSBC Global Strategy Hedge Investments
Limited, SSCSIL A/C HSBC Wealth Accumulation Investments Limited, and SSCSIL A/C HSBC Republic US Advantedge Investments Limited.
|
10
USE OF PROCEEDS
All of the shares of Common Stock covered by this prospectus are being sold by the selling security holders. See the section entitled
“
Selling Security Holders
.” We will not receive any proceeds from these sales of shares of our common stock. The selling shareholders will pay any underwriting discounts and commissions and expenses incurred by the selling
shareholders for brokerage, accounting, tax, or legal services or any other expenses incurred by the selling shareholders in disposing of the shares. We will bear all other costs, fees, and expenses incurred in effecting the registration of the
shares covered by this prospectus, including, without limitation, all registration and filing fees, and fees and expenses of our counsel and our accountants.
PLAN OF DISTRIBUTION
The selling security
holders and any of their pledgees, donees, assignees, transferees and successors-in-interest may, from time to time, sell any or all of their shares of Common Stock on Nasdaq or any other stock exchange, market or trading facility on which the
shares of Common Stock are traded or in private transactions. These sales may be at fixed or negotiated prices. Subject to compliance with applicable law, the selling security holders may use any one or more of the following methods when selling
shares of Common Stock:
|
|
•
|
|
ordinary brokerage transactions and transactions in which the broker-dealer solicits the purchaser;
|
|
|
•
|
|
block trades in which the broker-dealer will attempt to sell the shares of Common Stock as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
|
|
|
•
|
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
|
•
|
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
|
•
|
|
privately negotiated transactions;
|
|
|
•
|
|
settlement of short sales entered into after the date of this prospectus;
|
|
|
•
|
|
agreements with broker-dealers to sell a specified number of such shares of Common Stock at a stipulated price per share;
|
|
|
•
|
|
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
|
•
|
|
a combination of any such methods of sale; or
|
|
|
•
|
|
any other method permitted pursuant to applicable law.
|
The selling security holders may also sell shares of Common Stock under Rule 144 under the Securities Act (“
Rule 144
”), if available, or in other transactions exempt from registration,
rather
11
than under this prospectus. The SEC has adopted amendments to Rule 144 which became effective on February 15, 2008, and apply to securities acquired both before and after that date. Under
these amendments, a person who has beneficially owned restricted shares of Common Stock for at least six months would be entitled to sell their securities provided that (i) such person is not deemed to have been one of our affiliates at the
time of, or at any time during the three months preceding, a sale and (ii) we are subject to the Exchange Act periodic reporting requirements for at least three months before the sale.
Persons who have beneficially owned restricted shares of Common Stock for at least six months but who are our affiliates at the time of,
or at any time during the three months preceding, a sale, would be subject to additional restrictions, by which such person would be entitled to sell within any three-month period only a number of securities that does not exceed the greater of
either of the following:
|
|
•
|
|
1% of the total number of securities of the same class then outstanding; or
|
|
|
•
|
|
the average weekly trading volume of such securities during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the
sale;
|
provided
, in each case, that we are subject to the Exchange Act periodic reporting requirements for at least
three months before the sale. Such sales must also comply with the manner of sale and notice provisions of Rule 144.
Broker-dealers engaged by the selling security holders may arrange for other brokers-dealers to participate in sales. Broker-dealers may
receive commissions or discounts from the selling security holders (or, if any broker-dealer acts as agent for the purchaser of shares of Common Stock, from the purchaser) in amounts to be negotiated. The selling security holders do not expect these
commissions and discounts to exceed what is customary in the types of transactions involved.
The selling security holders may
pledge their shares of Common Stock to their broker-dealers under the margin provisions of customer agreements. If a selling security holder defaults on a margin loan, the broker-dealer may, from time to time, offer and sell the pledged shares of
Common Stock. The selling security holders and any other persons participating in the sale or distribution of the shares of Common Stock will be subject to applicable provisions of the Securities Act, the Exchange Act, and the rules and regulations
thereunder, including, without limitation, Regulation M. These provisions may restrict certain activities of, and limit the timing of purchases and sales of any of the shares of Common Stock by, the selling security holders or any other person,
which limitations may affect the marketability of the shares of Common Stock.
Upon our being notified in writing by a selling
security holder that any material arrangement has been entered into with a broker-dealer for the sale of Common Stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a
supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of the selling security holder and of the participating broker-dealer(s), (ii) the number of shares of
Common Stock involved, (iii) the price at which such shares of Common Stock were sold, (iv) the commissions paid or discounts or concessions
12
allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this
prospectus, and (vi) other facts material to the transaction.
The selling security holders also may transfer the shares
of our Common Stock in other circumstances, in which case the transferees, pledgees or other successors-in-interest will be the selling beneficial owners for purposes of this prospectus.
The selling security holders and any broker-dealers or agents that are involved in selling the shares of Common Stock may be deemed to be
“underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the shares of Common Stock purchased by them
may be deemed to be underwriting commissions or discounts under the Securities Act. To our knowledge, no selling security holder has entered into any agreement or understanding, directly or indirectly, with any person to distribute the shares of our
Common Stock.
We are required to pay all fees and expenses incident to the registration of shares of Common Stock. We have
agreed to indemnify the selling security holders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
13
DESCRIPTION OF SECURITIES
General
The following
is a summary of the material terms of our securities and is not intended to be a complete summary of the rights and preferences of such securities. We urge you to read our Second Amended and Restated Certificate of Incorporation, filed with the
Securities and Exchange Commission on our Current Report on Form 8-K on October 9, 2009.
Authorized and Outstanding Stock
Our Second Amended and Restated Certificate of Incorporation authorizes the issuance of 100,000,000 shares of Common Stock
and 1,000,000 shares of preferred stock, par value $0.0001 per share. In our initial public offering 31,948,850 shares of Common Stock were issued. As of January 23, 2012, there were 13,466,535 outstanding shares of Common Stock. The Common
Stock outstanding is duly authorized, validly issued, fully paid and non-assessable. There are no shares of preferred stock outstanding.
Common Stock
Holders of
our Common Stock are entitled to one vote for each share held of record on all matters to be voted on by stockholders generally. Holders of Common Stock have exclusive voting rights for the election of our directors and all other matters requiring
stockholder action, except as may be provided in any certificate of designation in respect of our preferred stock or as otherwise provided by law, including with respect to certain amendments to our Second Amended and Restated Certificate of
Incorporation that would require approval by the holders of our preferred stock, or one or more series thereof, that may become outstanding, voting separately as a class or series.
Holders of our Common Stock are entitled to receive such dividends, if any, as may be declared from time to time by our board of
directors in its discretion out of funds legally available therefor. We have not paid any dividends on our Common Stock to date. The payment of dividends in the future will depend on our revenues and earnings, if any, capital requirements and
general financial condition. It is the intention of our present board of directors to retain any earnings for use in our business operations and, accordingly, we do not anticipate the board declaring any dividends in the foreseeable future. In
addition, our board of directors is not currently contemplating and does not anticipate declaring any stock dividends in the foreseeable future, except if we may increase the size of the offering pursuant to Rule 462(b) under the Securities Act.
Further, our ability to declare dividends may be limited to restrictive covenants if we incur any indebtedness.
In the event
of any voluntary or involuntary liquidation, dissolution or winding up and after payment or provision for payment of our debts and other liabilities, and subject to the rights of holders of shares of our preferred stock that may become outstanding,
the holders of all outstanding shares of our Common Stock will be entitled to receive our remaining assets available for distribution ratably in proportion to the number of shares of Common Stock held by each stockholder.
14
Holders of our Common Stock have no preemptive or other subscription rights and there are no
sinking fund or redemption provisions applicable to the Common Stock.
Preferred Stock
Our Second Amended and Restated Certificate of Incorporation authorizes the issuance of 1,000,000 shares of “blank check”
preferred stock with such designations, rights, powers (including voting powers, full or limited) and preferences as may be determined from time to time by our board of directors. Accordingly, our board of directors is empowered, without stockholder
approval, to issue preferred stock with voting powers and with dividend, liquidation, conversion or other rights which could dilute the voting power of the Common Stock or could result in a subordination of the rights of the holders of the Common
Stock to the prior rights and preferences of the preferred stock, including with respect to dividends or upon a liquidation, dissolution or winding up. In addition, preferred stock could be utilized as a method of discouraging, delaying or
preventing a change in control of WLBC. There are no shares of preferred stock outstanding and we do not currently intend to issue any shares of preferred stock. Although we do not currently intend to issue any shares of preferred stock, we cannot
assure you that we will not do so in the future.
Options
In connection with the Acquisition, we assumed the Stock Option Plan of Service1
st
, which we expect will be amended to provide that stock options
granted thereunder may be exercised to purchase shares of our Common Stock (the “
Stock Option Plan
”). The holders of outstanding options to purchase Service1
st
’s common stock that were granted under the Stock Option Plan prior to the Acquisition now hold options of similar
tenor to purchase shares of Common Stock at a purchase price of $21.01 per share. As a result of the foregoing, we may issue up to 246,947 shares of Common Stock upon the exercise of all outstanding options and an additional 229,023 shares of Common
Stock are available for option grants under the Stock Option Plan. Generally, any outstanding unvested options will become vested and exercisable if the holder continuously provides service to Service1
st
or an affiliate, including WLBC following the Acquisition, through
the applicable vesting date.
Our Transfer Agent
The transfer agent for our securities is Continental Stock Transfer & Trust Company, 17 Battery Place, New York, New York 10004.
15
LEGAL MATTERS
Proskauer Rose LLP, Eleven Times Square, New York, New York 10036, has acted as counsel for WLBC. Grady & Associates, 20950
Center Ridge Road, Suite 100, Rocky River, Ohio, 44116, has acted as special regulatory counsel for WLBC.
EXPERTS
The financial statements of WLBC as of December 31, 2010 and 2009 incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31, 2010 have been so incorporated in reliance on the report of Crowe Horwath LLP, independent registered public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The financial statements of WLBC for the year ended December 31, 2008 incorporated
in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2010 have been so incorporated in reliance on the report of Hays & Company LLP, independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
The financial statements of Service1st as of
October 28, 2010 and for the period then ended incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2010 have been so incorporated in reliance on the report of Crowe Horwath LLP,
independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The financial statements of Service1
st
as of December 31, 2009 and for the years ended December 31, 2009, and 2008, incorporated in this prospectus by reference to WLBC’s Annual Report on Form 10-K for the year ended
December 31, 2009 have been so incorporated in reliance on the report of Grant Thornton LLP, independent registered public accounting firm given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC as required by the Exchange Act. You may read and copy reports,
proxy statements and other information filed by us with the SEC at the SEC Public Reference Room located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. You may also obtain copies of the materials described above at prescribed rates by writing to the SEC, Public Reference Section, 100 F Street, N.E., Washington, D.C. 20549. You may access information about us at the web site
maintained by the SEC containing reports, proxy statements and other information at:
http://www.sec.gov
.
Information
and statements contained in this prospectus are qualified in all respects by reference to the copy of the relevant contract or other document included as an annex to this prospectus.
16
If you would like additional copies of this prospectus or any of our reports and proxy
statements filed with the SEC as required under the Exchange Act free of charge, you should contact our Chief Financial Officer via telephone or in writing:
Patricia A. Ochal
Western Liberty Bancorp
8363 W. Sunset Road, Suite 350
Las Vegas, Nevada 89113
(702) 966-7400
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information.
We incorporate by reference the documents listed below, all filings made pursuant to the Exchange Act after the date of this registration statement and prior to effectiveness of the registration statement and any other future filings we will make
with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than Current Reports on Form 8-K containing disclosure furnished under Items 2.02, 7.01 or 8.01 of Form 8-K, unless otherwise indicated therein) until all the
securities offered under this prospectus are sold:
|
|
•
|
|
our Annual Report on Form 10-K for the year ended December 31, 2010;
|
|
|
•
|
|
our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2011, June 30, 2011 and September 30, 2011;
|
|
|
•
|
|
our Current Reports on Form 8-K filed with the SEC on February 18, 2011, March 16, 2011, June 28, 2011, August 23,
2011, October 3, 2011, November 10, 2011 (Item 8.01 only), December 1, 2011 and January 17, 2012; and
|
|
|
•
|
|
the description of our Common Stock contained in the Registration Statement on Form 8-A, initially filed on November 6, 2007, as amended on
October 25, 2010, and any subsequent amendment thereto filed for the purpose of updating such description.
|
We will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in this prospectus but
not delivered with this prospectus. In addition, copies of these filings are available from the SEC as described under “
Where You Can Find More Information
” above or on our website at www.wlbancorp.com. We have not incorporated by
reference into this prospectus any other information on our website, and you should not consider it to be a part of this prospectus.
17
In addition, you may request a copy of these filings, at no cost, by writing or telephoning
us at the following address:
Western Liberty Bancorp
8363 W. Sunset Road, Suite 350
Las Vegas, Nevada 89113
Attn: Patricia A. Ochal
Telephone requests may be directed to (702) 966-7400
This prospectus is
part of a registration statement we filed with the SEC. You should rely only on the information or representations provided in this prospectus. We have authorized no one to provide you with different information.
You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of the
document.
Statements contained in this prospectus as to the contents of any contract or document are not necessarily complete
and in each instance reference is made to the copy of that contract or document filed as an exhibit to the registration statement or as an exhibit to another filing, each such statement being qualified in all respects by such reference and the
exhibits and schedules thereto.
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
Item 14.
|
Other Expenses of Issuance and Distribution
|
The following table sets forth the costs and expenses to be borne by WLBC in connection with the offerings described in this Registration Statement. None of these expenses shall be borne by any of the
selling security holders.
|
|
|
|
|
|
|
SEC Registration fee
|
|
$
|
663.57
|
|
|
Transfer agent fees and expenses
|
|
|
—
|
|
|
Printing
|
|
$
|
1,260.00
|
|
|
Accounting fees and expenses
|
|
$
|
25,000.00
|
|
|
Legal fees and expenses
|
|
$
|
43,000.00
|
|
|
Miscellaneous
|
|
|
—
|
|
|
Total
|
|
$
|
69,923.57
|
|
|
Item 15.
|
Indemnification of Directors and Officers.
|
The Second Amended and Restated Certificate of Incorporation of WLBC provides that all directors, officers, employees and agents of the registrant shall be entitled to be indemnified by WLBC to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law. The Second Amended and Restated Certificate of Incorporation also provides that expenses incurred by an officer or director in defending any civil, criminal,
administrative, or investigative action, suit or proceeding for which such officer or directly may be entitled to indemnification shall be paid by the registrant in advance of the final disposition of such action, suit or proceeding upon receipt by
the registrant of an undertaking by or on behalf of such officer or director to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the registrant under the Second Amended and Restated
Certificate of Incorporation.
Section 145 of the Delaware General Corporation Law concerning indemnification of and
advancement of expenses to officers, directors, employees and agents is set forth below.
“Section 145. Indemnification
of officers, directors, employees and agents; insurance.
(a) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of
the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be
II-1
in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which
the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
(c) To the extent that a present or former director or officer of a corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
(d) Any
indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director,
officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is
a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it
shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors
II-2
and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another corporation,
partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while
holding such office. A right to indemnification or to advancement of expenses arising under a provision of the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to such provision after the occurrence of the
act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission
explicitly authorizes such elimination or impairment after such action or omission has occurred.
(g) A corporation shall have
power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the
corporation would have the power to indemnify such person against such liability under this section.
(h) For purposes of this
section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting
or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section.
II-3
(j) The indemnification and advancement of expenses provided by, or granted pursuant to,
this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a
person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to
advance expenses (including attorneys’ fees).”
Our bylaws also generally provide that we will indemnify our current
and former directors and officers and persons who, while serving as a director or officer of WLBC, act or acted at our request as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, employment
benefit plan or other enterprise, against all liability and loss suffered and expenses (including attorneys’ fees) actually and reasonably incurred, to the fullest extent permitted by the Delaware General Corporation Law. Likewise, our bylaws
provide that we will pay the expenses (including attorneys’ fees) incurred by any such person in defending any proceeding in advance of its final disposition, provided that such payment will be made only upon the receipt of an undertaking by
such person to repay all amounts if it is ultimately determined that such person is not entitled to indemnification. Our bylaws further permit us to secure insurance on behalf of any officer, director or employee for any liability arising out of his
or her actions, regardless of whether Delaware law would permit indemnification. We have purchased a policy of directors’ and officers’ liability insurance that insures our directors and officers against the cost of defense, settlement or
payment of a judgment in some circumstances and insures us against our obligations to indemnify the directors and officers.
We are also party to agreements with our directors and officers to provide contractual indemnification in addition to the indemnification
provided in WLBC’s Second Amended and Restated Certificate of Incorporation. We believe that these provisions and agreements were necessary to attract qualified directors and officers.
In addition, WLBC is a corporation organized under the laws of the State of Delaware, and Section 102(b)(7) of the Delaware General
Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions or (iv) for any transaction from which the director derived an improper personal benefit. Our Second Amended and Restated
Certificate of Incorporation provides that our directors shall not be liable to us or our stockholders, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to WLBC’s directors, officers, and
controlling persons pursuant to the foregoing provisions, or
II-4
otherwise, WLBC has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment of expenses incurred or paid by a director, officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, WLBC will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the court of appropriate jurisdiction the question
whether such indemnification by WLBC is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Paragraph B of Article Eighth of WLBC’s Second Amended and Restated Certificate of Incorporation provides:
“The Corporation, to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. Expenses (including
attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by
the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized hereby.”
WLBC’s bylaws further provide that any indemnification shall
be made by WLBC to the fullest extent permitted by law only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in such section. Such determination shall be made: (i) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding; (ii) if such
quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by stockholders.
II-5
|
Item 16.
|
Exhibits and Financial Statement Schedules
|
Description
|
|
|
|
|
|
|
|
4.1
|
|
Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K, File No. 001-33803, filed by WLBC with the
Securities and Exchange Commission on October 9, 2009)
|
|
|
|
|
4.2
|
|
Amended and Restated By-laws (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K, File No. 001-33803, filed by WLBC with the Securities and Exchange
Commission on November 3, 2010)
|
|
|
|
|
4.3
|
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.7 to the Form S-3, filed by WLBC with the Securities and Exchange Commission on November 16,
2009)
|
|
|
|
|
5.1
|
|
Opinion of Proskauer Rose LLP as to the validity of the shares being registered*
|
|
|
|
|
23.1
|
|
Consent of Crowe Horwath LLP*
|
|
|
|
|
23.2
|
|
Consent of Hays & Company LLP*
|
|
|
|
|
23.3
|
|
Consent of Grant Thornton LLP*
|
|
|
|
|
23.4
|
|
Consent of Proskauer Rose LLP (included in Exhibit 5.1)
|
II-6
(a) The undersigned Registrant hereby undertakes:
(1) To file,
during any period in which offers or sales are being made of securities registered hereby, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(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 information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) If the Registrant is relying on Rule 430B:
II-7
(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 the 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)(î), (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 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 a 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.
(ii) If the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a Registration Statement relating to an offering, other than registration statements relying
on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.
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 a purchaser with a time of contract of sale prior to such first use, 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 date of first use.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
II-8
(ii) Any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion
of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering
thereof.
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing a Form S-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Las Vegas, Nevada on January 24, 2012.
|
|
|
|
|
|
|
WESTERN LIBERTY BANCORP
|
|
|
|
|
By:
|
|
/s/ William E. Martin
|
|
|
|
Name:
|
|
William E. Martin
|
|
|
|
Title:
|
|
Chief Executive Officer and Director
|
|
|
|
|
|
(Principal Executive Officer)
|
KNOW BY ALL MEN BY THESE PRESENTS that each person whose signature appears below hereby constitutes
and appoints William E. Martin as his or her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, to act for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all
amendments (including pre-effective and post-effective amendments) to this Registration Statement, including any subsequent registration statement for the same offering that may be filed under Rule 462(b) and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed
by the following persons in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Michael B.
Frankel
Michael B. Frankel
|
|
Chairman
|
|
January 24, 2012
|
|
|
|
|
|
/s/ Terrence L.
Wright
Terrence L. Wright
|
|
Vice Chairman
|
|
January 24, 2012
|
|
|
|
|
|
/s/ Jason N.
Ader
Jason N. Ader
|
|
Director
|
|
January 23, 2012
|
II-10
|
|
|
|
|
|
|
|
|
|
|
/s/ Richard A.C.
Coles
Richard A.C. Coles
|
|
Director
|
|
January 24, 2012
|
|
|
|
|
|
/s/ Curtis W. Anderson,
CPA
Curtis W. Anderson, CPA
|
|
Director
|
|
January 23, 2012
|
|
|
|
|
|
/s/ Robert G.
Goldstein
Robert G. Goldstein
|
|
Director
|
|
January 24, 2012
|
|
|
|
|
|
/s/ William E.
Martin
William E. Martin
|
|
Director and Chief Executive
Officer (Principal Executive
Officer)
|
|
January 24, 2012
|
|
|
|
|
|
/s/ Patricia A.
Ochal
Patricia A. Ochal
|
|
Chief Financial Officer
(Principal Accounting and
Financial Officer)
|
|
January 24, 2012
|
II-11
Exhibits Index
|
|
|
|
|
Description
|
|
|
|
|
4.1
|
|
Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K, File No. 001-33803, filed by WLBC with the
Securities and Exchange Commission on October 9, 2009)
|
|
|
|
|
4.2
|
|
Amended and Restated By-laws (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K, File No. 001-33803, filed by WLBC with the Securities and Exchange
Commission on November 3, 2010)
|
|
|
|
|
4.3
|
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.7 to the Form S-3, filed by WLBC with the Securities and Exchange Commission on November 16,
2009)
|
|
|
|
|
5.1
|
|
Opinion of Proskauer Rose LLP as to the validity of the shares being registered*
|
|
|
|
|
23.1
|
|
Consent of Crowe Horwath LLP*
|
|
|
|
|
23.2
|
|
Consent of Hays & Company LLP*
|
|
|
|
|
23.3
|
|
Consent of Grant Thornton LLP*
|
|
|
|
|
23.4
|
|
Consent of Proskauer Rose LLP (included in Exhibit 5.1)
|
II-12
Grafico Azioni Western Liberty Bancorp (MM) (NASDAQ:WLBC)
Storico
Da Mag 2024 a Giu 2024
Grafico Azioni Western Liberty Bancorp (MM) (NASDAQ:WLBC)
Storico
Da Giu 2023 a Giu 2024
