Form S-8 POS Porter Bancorp, Inc.

As filed with the Securities and Exchange Commission on June 24, 2016

Registration No. 333- 202749

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SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

____________

Post-Effective Amendment No. 1

to

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

PORTER BANCORP, INC.

(Exact Name of Registrant as Specified in Its Charter)

2500 Eastpoint Parkway

Louisville, Kentucky 40223
(502) 499-4800
(Address of Registrant’s Principal Executive Offices)

 

PORTER BANCORP, INC.

2016 OMNIBUS EQUITY COMPENSATION PLAN

(formerly, Porter Bancorp, Inc. Amended and Restated 2006 Stock Incentive Plan)

 

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.

 

EXPLANATORY NOTE

 

Effective upon approval by the shareholders of Porter Bancorp, Inc. on May 25, 2016, the Porter Bancorp 2006 Stock Incentive Plan, as amended (the "2006 Plan") was merged with and into the Porter Bancorp 2016 Omnibus Equity Compensation Plan (the "2016 Plan").   No additional shares were authorized for issuance under either the 2016 Plan or the 2006 Plan as a result of the merger of the two plans.  The total aggregate number of common shares that may be issued or transferred under the 2016 Plan is the sum of the following: (i) the 303,592 common shares remaining available for issuance under the 2006 Plan but not subject to an outstanding award and not previously exercised, vested or paid as of May 25, 2016, plus (ii) the number of common shares subject to outstanding grants under the 2006 Plan as of May 25, 2016 (with shares subject to forfeited awards or withheld in cashless exercises or to pay withholding again becoming available for issuance).

 

Outstanding grants under the 2006 Plan will continue in effect according to their terms as in effect before the merger of the two plans, and the shares with respect to outstanding grants under the 2006 Plan shall be issued or transferred under the 2016 Plan. No new grants will be made under the 2006 Plan.

 

This registration statement was originally filed on March 13, 2015 to register 300,000 additional shares authorized for issuance under the Porter Bancorp, Inc. Amended and Restated 2006 Stock Incentive Plan, and in accordance with General Instruction E to Form S-8, the contents of the registration statement on Form S-8 filed with the Securities and Exchange Commission on June 12, 2007 (File No. 333-143676) has been incorporated by reference into this registration.

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (“Securities Act”), and the Note to Part I of Form S-8.  The documents containing the information required to be included in Part I of this Registration Statement will be sent or given to the participants as specified in Rule 428(b)(1) promulgated under the Securities Act.

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

The following documents filed by Porter Bancorp, Inc. (the “Company” or the “Registrant”) with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference and made a part of this Registration Statement:

 

 

 

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.  Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Not Applicable.

 

Not Applicable

Under Kentucky law, a corporation has broad powers to indemnify directors, officers, employees, and agents of the corporation for judgments, penalties, fines, settlements, and reasonable expenses incurred by that person in proceedings in connection with the person’s official capacity in the corporation. Indemnification against reasonable legal expenses incurred by such person in such a proceeding is mandatory when the person is wholly successful in the defense of the proceeding. However, a corporation may not indemnify such person when the person is adjudged liable to the corporation or on the basis that a personal benefit was improperly received.

 

Porter’s articles of incorporation provide for the indemnification of executive officers and directors only in connection with proceedings arising from that person’s conduct in his/her official capacity and only to the extent permitted by the Kentucky Business Corporation Act.

 

KRS 271B.8-300 provides that a director of a Kentucky corporation must discharge his duties as a director in good faith, on an informed basis, and in a manner he honestly believes to be in the best interests of the corporation. To discharge his duties on an informed basis, a director must make inquiry into the business and affairs of the corporation, or into a particular action to be taken or decision to be made, with the care an ordinary prudent person in a like position would exercise under similar circumstances. Unless the corporation’s articles of incorporation contain a provision further limiting a director’s liability for monetary damages, any action taken as a director, or any failure to take any action as a director, will not be the basis for monetary damages or injunctive relief unless (a) the director has breached or failed to perform his duties as a director in good faith, on an informed basis, and in a manner he honestly believes to be in the best interests of the corporation; and (b) in the case of an action for monetary damages, the breach or failure to perform constitutes willful misconduct or wanton or reckless disregard for the best interests of the corporation and its shareholders. A person bringing an action for monetary damages for breach of duty has the burden of proving by clear and convincing evidence the provisions of (a) and (b) above, and the burden of proving that the breach or failure to perform was the legal cause of the damages suffered by the corporation. KRS 271B.2-020 provides that the articles of a corporation may eliminate or limit the personal liability of a director to the corporation or its shareholders for monetary damages for breach of the duties of a director. KRS 271B.2-020 does not allow for the elimination of the duty of due care that a director owes to a corporation, but allows for the elimination of a monetary recovery for breach of that duty. Only directors, not officers, may benefit from the provisions of KRS 271B.2-020. The limitations of liability permitted by KRS 271B.2-020 extend only to the elimination of a recovery of a monetary remedy. Shareholders may still seek equitable relief, such as injunction, against an action of a director that is inappropriate. KRS 271B.2-020 does not preclude or limit recovery of damages by third parties, nor does it limit or affect a director’s liability for acts or omissions occurring before the effectiveness of an amendment to a corporation’s articles of incorporation.

 

Porter’s articles of incorporation limit the liability of directors to Porter and its shareholders to the extent permitted by KRS 271B.2-020. A director’s liability to Porter or the shareholders is not eliminated or limited with respect to: (1) any breach of the director’s duty of loyalty to Porter or its shareholders; (2) acts or omissions not taken in good faith or which involve intentional misconduct or a knowing violation of the law; (3) actions creating personal liability for unlawful distributions as set forth in KRS 271B.8-330; or (4) transactions from which the director derived an improper personal benefit. KRS 271B.2-020 does not preclude or limit recovery of damages by third parties, nor does it limit or affect a director’s liability for acts or omissions occurring before the effectiveness of an amendment to a corporation’s articles of incorporation.

 

Not Applicable.

 

 

 

 

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Louisville, Commonwealth of Kentucky, on June 22, 2016.

 

	PORTER BANCORP, INC.
	By:	/s/ John T. Taylor
		Name: John T. Taylor
		Title: President and Chief Executive Officer

 

SIGNATURES AND POWER OF ATTORNEY

 

We, the undersigned officers and directors of Porter Bancorp, Inc. hereby severally constitute and appoint John T. Taylor and Phillip W. Barnhouse and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form S-8 filed herewith and any and all pre-effective and post-effective amendments to said Registration Statement and generally to do all such things in our name and behalf in our capacities as officers and directors to enable Porter Bancorp, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.