Form S-8 EQUITY BANCSHARES INC

As filed with the Securities and Exchange Commission on May 16, 2022

Registration No. 333-                

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

EQUITY BANCSHARES, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Kansas		72-1532188
(State of other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

 

7701 East Kellogg Drive, Suite 300 Wichita, Kansas		67207
(Address of Principal Executive Offices)		(Zip Code)

Equity Bancshares, Inc. 2022 Omnibus Equity Incentive Plan

(Full title of the plan)

Brad S. Elliott

Chairman and Chief Executive Officer

Equity Bancshares, Inc.

7701 East Kellogg Drive, Suite 300

Wichita, Kansas 67207

(Name and address of agent for service)

(316) 612-6000

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

Copies to:

Blake H Redwine, Esq.

Norton Rose Fulbright US LLP

2200 Ross Avenue, Suite 3600

Dallas, Texas 75201

(214) 855-7425

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		☐		Accelerated filer		☒
Non-accelerated filer		☐		Smaller reporting company		☐
				Emerging Growth Company		☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.

Plan Information.

Equity Bancshares, Inc. (the “Company”) will send or give to all participants in the Equity Bancshares, Inc.’s 2022 Omnibus Equity Incentive Plan the document(s) containing the information required by Part I of Form S-8, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Company has not filed such document(s) with the Commission, but such documents (along with documents incorporated by reference into this Form S-8 Registration Statement (the “Registration Statement”) pursuant to Item 3 of Part II hereof shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 

Item 2.

Registrant Information and Employee Plan Annual Information.

Upon written or oral request, the Company will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement. The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to participants pursuant to Rule 428(b). Requests for the above-mentioned information should be directed to General Counsel, Equity Bancshares, Inc., 7701 East Kellogg Drive, Suite 300, Wichita, Kansas 67207, telephone: (316) 612-6000.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, the following documents have been filed by the Company with the Commission and are incorporated by reference into this Registration Statement and will be deemed to be a part hereof:

 

(a)

the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on March 9, 2022;

 

(b)

the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, filed with the Commission on May 5, 2022;

 

(c)

the Company’s Current Reports on Form 8-K filed with the Commission on February  18, 2022, March  21, 2022, April 28, 2022 (excluding any portions thereof which are deemed “furnished” rather than filed with the Commission);

 

(d)

all other reports of the Company filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the annual report referred to in (a) above; and

 

(e)

the description of the Company’s Class A common stock, par value $0.01 per share, contained in the Company’s Registration Statement on Form 8-A (File No. 001-37624), filed with the Commission on November 6, 2015 (including any amendments or reports filed for the purpose of updating such description).

Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such documents. 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 statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 4.

Description of Securities.

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

Section 17-6305 of the Kansas General Corporation Code provides that a corporation has the 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 such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, including attorney’s fees, if such person acted in good faith and in a manner such 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 no reasonable cause to believe such person’s conduct was unlawful. Similarly, a Kansas corporation may also indemnify any person described in the previous sentence 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, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, except that any person found liable to the corporation may be indemnified only if a court has determined such person is fairly and reasonably entitled to indemnity for such expenses. To the extent that a present or former director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any foregoing action, suit or proceeding, or in defense of any claim, issue or matter therein, Section 17-6305 of the Kansas General Corporation Code provides that such director, officer, employee or agent will be indemnified against expenses actually and reasonably incurred by such person in connection therewith, including attorney fees.

The Company’s Articles of Incorporation and Bylaws provide that it will indemnify each of the Company’s officers and directors to the fullest extent permitted by Kansas law and that any modification or repeal of the Company’s Articles of Incorporation or Bylaws will not adversely affect this indemnification right of the Company’s officers and directors with respect to any act or omission occurring prior to such modification or repeal. The Company’s Bylaws further provide that any expenses (including attorneys’ fees) actually and reasonably incurred by its officers and directors in connection with their defense of any indemnifiable proceeding or the enforcement of their indemnification rights will be paid by the Company in advance of the disposition of such action upon receipt of an undertaking by or on behalf of the officer or director to repay such amount if it is ultimately determined that they were not entitled to be indemnified.

As permitted by Section 17-6002(b)(8) of the Kansas General Corporation Code, the Company’s Articles of Incorporation eliminate a director’s liability to the Company and its stockholders for monetary damages for breach of a fiduciary duty as a director, except for (a) any breach of the director’s duty of loyalty to the Company or its stockholders, (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) certain transactions under Section 17-6424 of the Kansas General Corporation Code (relating to liability for unauthorized acquisitions or redemptions of, or payment of dividends on, capital stock), or (d) for any transaction from which the director derived an improper personal benefit.

The Company’s Bylaws also provide that the indemnification rights set forth in the Bylaws are not exclusive of other indemnification rights to which an indemnified party may be entitled under any statute, provision in the Company’s Articles of Incorporation or Bylaws, agreement, vote of stockholders or disinterested directors, policy of insurance or otherwise. In this regard, the Company has entered into indemnification agreements with each of its directors and officers that provides these individuals with a contractual right to indemnification from the Company to the fullest extent permitted under Kansas law against any liability that may arise by reason of their service to the Company and to the advancement of expenses incurred as a result of any proceeding against them as to which they could be indemnified. The Company’s Bylaws further authorize it to purchase and maintain insurance on behalf of its officers and directors and the Company has obtained insurance to cover such individuals for certain liabilities.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company under any of the foregoing provisions, in the opinion of the Commission, that indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In addition, the Company’s ability to provide indemnification to the Company’s directors and officers is limited by federal banking laws and regulations, including, but not limited to, 12 U.S.C. §1828(k).

Item 7.

Exemption from Registration Claimed.

Not applicable.

 

Item 8.

Exhibits.

 

Exhibit No.		Description
3.1		Second Amended and Restated Articles of Incorporation of Equity Bancshares, Inc. (incorporated by reference to Exhibit 3.1 to Equity Bancshares, Inc.’s Current Report on Form 8-K, filed with the Commission on May 3, 2016).
3.2		Amended and Restated Bylaws of Equity Bancshares, Inc. (incorporated by reference to Exhibit 3.2 to Equity Bancshares, Inc.’s Registration Statement on Form S-1, filed with the Commission on October 9, 2015, File No. 333-207351).
4.1		Specimen Class  A Common Stock Certificate (incorporated by reference to Exhibit 4.1 to Equity Bancshares, Inc.’s Amendment No. 1 to Registration Statement on Form S-1, filed with the Commission on October  27, 2015, File No. 333-207351).
5.1*		Opinion of Wise & Reber, L.C. as to the legality of the securities being registered.
23.1*		Consent of Wise & Reber, L.C. (included as part of Exhibit 5.1 hereto).
23.2*		Consent of Crowe LLP.
24.1*		Power of Attorney (included on signature page).
99.1		Equity Bancshares, Inc 2022 Omnibus Equity Incentive Plan (incorporated by reference to Appendix A to Equity Bancshares, Inc.’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on March 17, 2022).
107*		Filing Fee Table

 

*	Filed herewith.

 

Item 9.

Undertakings.

A. The undersigned registrant hereby undertakes:

1. To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

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

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

Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) herein do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 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.

C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission 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 by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act, 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 Wichita, State of Kansas, on May 16, 2022.

 

POWER OF ATTORNEY

Each person whose signature appears below appoints Brad S. Elliott and Eric R. Newell, and each of them, any of whom may act without the joinder of the other, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any Registration Statement (including any amendment thereto) for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and the dates indicated.

 

Signature		Title		Date
/s/ Brad S. Elliott Brad S. Elliott		Chairman and Chief Executive Officer (Principal Executive Officer)		May 16, 2022
/s/ Eric R. Newell Eric R. Newell		Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)		May 16, 2022
/s/ Gary C. Allerheiligen Gary C. Allerheiligen		Director		May 16, 2022
/s/ Leon Borck Leon Borck		Director		May 16, 2022
/s/ Kevin E. Cook Kevin E. Cook		Director		May 16, 2022
/s/ Junetta M. Everett Junetta M. Everett		Director		May 16, 2022
/s/ Gregory L. Gaeddert Gregory L. Gaeddert		Director		May 16, 2022
/s/ Benjamen M. Hutton Benjamen M. Hutton		Director		May 16, 2022
/s/ Randee R. Koger Randee R. Koger		Director		May 16, 2022
/s/ Gregory H. Kossover Gregory H. Kossover		Director		May 16, 2022
/s/ James S. Loving James S. Loving		Director		May 16, 2022
/s/ Jerry P. Maland Jerry P. Maland		Director		May 16, 2022
/s/ Shawn D. Penner Shawn D. Penner		Director		May 16, 2022

Exhibit 5.1

 

BRETT A. REBER CASEY R. LAW RANDEE KOGER JEFFREY A. HOUSTON DAVID N. HARGER ANN M. ELLIOTT LAUREN G. HUGHES KRISTEN E. EGGER				CASEY R. LAW 620.504.5422 [email protected]   ROBERT W. WISE (1934-2021)

May 16, 2022

Equity Bancshares, Inc.

7701 East Kellogg Drive, Suite 300

Wichita, Kansas 67207

 

Re:	Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as special counsel to Equity Bancshares, Inc., a Kansas corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission on May 16, 2022, relating to the registration under the Securities Act of 1933, as amended (the “Act”), of the offer and sale of an aggregate of up to 760,000 shares (the “Shares”) of the Company’s Class A Common Stock, par value $0.01 per share (“Common Stock”), that may be issued under the Equity Bancshares, Inc.’s Omnibus Equity Incentive Plan (the “Plan”).

In reaching the options set forth herein, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such documents and records of the Company and such statutes, regulations and other instruments as we deemed necessary or advisable for purposes of this opinion, including (i) the Registration Statement, (ii) certain resolutions adopted by the board of directors of the Company, (iii) the Plan, and (iv) such other certificates, instruments, and documents as we have considered necessary for purposes of this opinion letter. As to any facts material to our opinions, we have made no independent investigation or verification of such facts and have relied, to the extent that we deem such reliance proper, upon certificates of public officials and officers or other representatives of the Company.

We have assumed (i) the legal capacity of all natural persons, (ii) the genuineness of all signatures, (iii) the authority of all persons signing all documents submitted to us on behalf of the parties to such documents, (iv) the authenticity of all documents submitted to us as originals, (v) the conformity to authentic original documents of all documents submitted to us as copies, (vi) that all information contained in all documents reviewed by us is true, correct, and complete, and (vii) that the Shares will be issued in accordance with the terms of the Plan.

May 16, 2022

Page 2

 

Based on the foregoing and subject to limitations set forth herein, and having due regard for the legal considerations we deem relevant, we are of the opinion that the Shares have been duly authorized and that, when the Shares are issued by the Company in accordance with the terms of the Plan and the instruments executed pursuant to the Plan, as applicable, which govern the awards to which the Shares relate, the Shares will be validly issued, fully paid, and non-assessable.

This opinion is limited in all respects to the Kansas General Corporation Code. We express no opinion as to any matter other than as expressly set forth above, and no opinion on any other matter may be inferred or implied herefrom. The opinions expressed herein are rendered as of the date hereof, and we expressly disclaim any obligation to update this letter or advise you of any change in any matter after the date hereof.

The opinions expressed herein are rendered to you in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon them pursuant to the applicable provisions of the Act. The opinions expressed herein may not be relied upon by you or any other person, firm or corporation for any other purpose.

This opinion letter may be filed as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act.

Very truly yours,

/s/ WISE & REBER, L.C.

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Equity Bancshares, Inc. of our report dated March 9, 2022 relating to the consolidated financial statements and effectiveness of internal control over financial reporting appearing in the Annual Report on Form 10-K of Equity Bancshares, Inc. as of and for the year ended December 31, 2021.

/s/ Crowe LLP

Indianapolis, Indiana

May 16, 2022

Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form type)

Equity Bancshares, Inc.

(Exact Name of Registrant as Specified in its Charter)

Table I: Newly Registered Securities

 

Security Type

Security Class Title

Fee Calculation Rule

Amount Registered(1)

Proposed Maximum Offering Price Per Unit(2)

Maximum Aggregate Offering Price

Fee Rate

Amount of Registration Fee

Equity

Class A Common Stock, par value $0.01 per share

Rule 457(h)

760,000

$31.17

$23,689,200

$92.70 per million dollars

$2,195.99

Total Offering Amounts

$23,689,200

$2,195.99

Total Fee Offsets

—

Net Fee Due

$2,195.99

 

(1)

Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional indeterminable number of shares of Equity Bancshares, Inc.’s Class A common stock, par value $0.01 per share (“Common Stock”), that may become issuable pursuant to the adjustment provisions of the Equity Bancshares, Inc.’s 2022 Omnibus Equity Incentive Plan (the “Plan”).

(2)

Estimated solely for purposes of calculating the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act. The maximum offering price per share and the maximum aggregate offering price are based on a price of $31.17 per share, which is the average of the high and low sales prices of shares of Common Stock on The Nasdaq Stock Market LLC on May 12, 2022.