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As filed with the Securities and Exchange Commission on May 29, 2009
Registration No. ___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FIRST CAPITAL INC.
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(exact name of registrant as specified in its charter)
INDIANA 35-2056949
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(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
220 FEDERAL DRIVE NW, CORYDON, INDIANA 47112
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(Address of Principal Executive Offices) Zip Code
FIRST CAPITAL INC.
2009 EQUITY INCENTIVE PLAN
--------------------------
(Full Title of the Plan)
COPIES TO:
WILLIAM W. HARROD VICTOR L. CANGELOSI
PRESIDENT AND CHIEF EXECUTIVE OFFICER KILPATRICK STOCKTON LLP
FIRST CAPITAL INC. 607 14TH STREET, NW, SUITE 900
220 FEDERAL DRIVE NW WASHINGTON, D.C. 20005
CORYDON, INDIANA 47112 (202) 508-5800
(Name and address of agent for service)
(812) 738-2198
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Telephone number, including area code, of agent for service
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):
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company |X|
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
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Amount Proposed maximum Proposed maximum Amount of
Title of securities to be to be offering price per aggregate offering registration
registered registered(1) share price(3) fee
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Common Stock
$.01 par Value 223,000 (2) $15.94 $3,554,620 $199
======================================================================================================================
(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the First Capital Inc. 2009 Equity Incentive Plan (the "Plan") as the
result of a stock split, stock dividend or similar adjustment to the
outstanding common stock of First Capital Inc. (the "Common Stock")
pursuant to 17 C.F.R. ss.230.416(a).
(2) Represents 223,000 shares which may be issued: (i) upon the exercise of
options to purchase shares of the Common Stock, or (ii) the distribution of
shares of Common Stock upon the vesting of stock awards or performance
awards.
(3) Estimated solely for the purpose of calculating the registration fee.
Represents the closing price for the common stock as reported on May 26,
2009 in accordance with 17 CFR Section 230.457(c) and 230.457(h).
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND 17 C.F.R. SS.230.462
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PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 (PLAN INFORMATION) AND 2 (REGISTRANT INFORMATION AND EMPLOYEE PLAN
ANNUAL INFORMATION). The documents containing the information for the First
Capital Inc. 2009 Equity Incentive Plan (the "Plan") specified by Part I of this
Registration Statement will be sent or given to the participants in the Plan as
specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission (the "SEC") either as a part of this
Registration Statement or as a prospectus or prospectus supplement pursuant to
Rule 424 in reliance on Rule 428. Such documents and the information
incorporated by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus for the Registration
Statement.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed by First Capital Inc. (the
"Registrant" or the "Corporation") with the SEC are incorporated by reference in
this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2008 filed with the SEC on March 30, 2009 (File No.
000-25023).
(b) The Registrant's Quarterly Report on Form 10-Q (File No. 000-25023)
for the quarterly period ended March 31, 2009 and filed with the SEC on May 13,
2009.
(c) The description of the Registrant's common stock contained in
Registrant's Form 8-A as filed with the SEC and declared effective on October
31, 1994 (File No. 000-25023).
(d) All documents filed by the Registrant and the Plan, where
applicable, pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act
after the date hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold (in each case other than those portions
furnished under items 2.02, 7.01 and 9.01 of Form 8-K or 8-K/A).
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR 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 INCORPORATED OR 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.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable, as the Registrant's Common Stock is registered under
Section 12 of the Securities Exchange Act of 1934, as amended.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article VII of the Registrant's Articles of Incorporation provides:
SECTION 7.01. GENERAL PROVISIONS. This corporation shall, to the
fullest extent to which it is empowered to do so by the Indiana Business
Corporation Act or any other applicable laws, as from time to time in effect,
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 and whether formal or informal,
by reason of the fact that he or she is or was a director, officer or employee
of this corporation, or who, while serving as such director, officer or employee
of this corporation, is or was serving at the request of this corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
whether for profit or not, against expenses (including attorneys' fees),
judgments, settlements, penalties and fines (including excise taxes assessed
with respect to employee benefit plans) actually or reasonably incurred by him
in accordance with such action, suit or proceeding, if he or she acted in good
faith and in a manner he or she reasonably believed, in the case of conduct in
his or her official capacity, was in the best interest of this corporation, and
in all other cases, was not opposed to the best interests of this corporation,
and with respect to any criminal action or proceeding, he or she either had
reasonable cause to believe his or her conduct was lawful or no reasonable cause
to believe his or her conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not meet the prescribed standard of conduct.
SECTION 7.02. INDEMNIFICATION AUTHORIZED. To the extent that a
director, officer or employee of this corporation has been successful, on the
merits or otherwise, in the defense of any action, suit or proceeding referred
to in Section 7.01 of this Article VII, or in the defense of any claim, issue or
matter therein, this corporation shall indemnify such person against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection therewith. Any other indemnification under Section 7.01 of this
Article VII (unless ordered by a court) shall be made by this corporation only
as authorized in the specific case, upon a determination that indemnification of
the director, officer or employee is permissible in the circumstances because he
or she has met the applicable standard of conduct. Such determination shall be
made (a) by the board of directors by a majority vote of a quorum consisting of
directors who were not at the time parties to such action, suit or proceeding;
or (b) if a quorum cannot be obtained under subdivision (a), by a majority vote
of a committee duly designated by the board of directors (in which designation
directors who are parties may participate), consisting solely of two or more
directors not at the time parties to such action, suit or proceeding; or (c) by
special legal counsel: (i) selected by the board of directors or its committee
in the manner prescribed in subdivision (a) or (b), or (ii) if a quorum of the
board of directors cannot be obtained under subdivision (a) and a committee
cannot be designated under subdivision (b), selected by a majority vote of the
full board of directors (in which selection directors who are parties may
participate); or (d) by stockholders, but shares owned by or voted under the
control of directors who are at the time parties to such action, suit or
proceeding may not be voted on the determination.
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection (c)
to select counsel.
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SECTION 7.03. DEFINITION OF GOOD FAITH. For purposes of any
determination under Section 7.01 of this Article VII, a person shall be deemed
to have acted in good faith and to have otherwise met the applicable standard of
conduct set forth in Section 7.01 of this Article VII if his or her action is
based on information, opinions, reports, or statements, including financial
statements and other financial data, if prepared or presented by (a) one or more
officers or employees of this corporation or other enterprise whom he or she
reasonably believes to be reliable and competent in the matters presented; (b)
legal counsel, public accountants, appraisers or other persons as to matters he
or she reasonably believes are within the person's professional or expert
competence; or (c) a committee of the board of directors of this corporation or
another enterprise of which the person is not a member if he or she reasonably
believes the committee merits confidence. The term "another enterprise" as used
in this Section 7.03 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person
is or was serving at the request of this corporation as a director, officer,
partner, trustee, employee or agent. The provisions of this Section 7.03 shall
not be deemed to be exclusive or to limit in any way the circumstances in which
a person may be deemed to have met the applicable standards of conduct set forth
in Section 7.01 of this Article VII.
SECTION 7.04. ADVANCEMENT OF EXPENSES. Expenses incurred in connection
with any civil or criminal action, suit or proceeding may be paid for or
reimbursed by this corporation in advance of the final disposition of such
action, suit or proceeding, as authorized in the specific case in the same
manner described in Section 7.02 of this Article VII, upon receipt of a written
affirmation of the director, officer or employee's good faith belief that he or
she has met the standard of conduct described in Section 7.01 of this Article
VII and upon receipt of a written undertaking on behalf of the director, officer
or employee to repay such amount if it shall ultimately be determined that he or
she did not meet the standard of conduct set forth in this Article VII, and a
determination is made that the facts then known to those making the
determination would not preclude indemnification under this Article VII.
SECTION 7.05. NON-EXCLUSIVITY. The indemnification provided by this
Article VII shall not be deemed exclusive of any other rights to which a person
seeking indemnification may be entitled under these Articles of Incorporation,
this corporation's Bylaws, any resolution of the board of directors or
stockholders, any other authorization, whenever adopted, after notice, by a
majority vote of all voting stock then outstanding, or any contract, both as to
action in his or her official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a director, officer or employee, and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 7.06. VESTMENT OF RIGHTS. The right of any individual to
indemnification under this Article VII shall vest at the time of occurrence or
performance of any event, act or omission giving rise to any action, suit or
proceeding of the nature referred to in Section 7.01 of this Article VII and,
once vested, shall not later be impaired as a result of any amendment, repeal,
alteration or other modification of any or all of these provisions.
Notwithstanding the foregoing, the indemnification afforded under this Article
VII shall be applicable to all alleged prior acts or omissions of any individual
seeking indemnification hereunder, regardless if such alleged acts or omissions
may have occurred before the adoption of this Article VII. To the extent such
prior acts or omissions cannot be deemed to be covered by this Article VII, the
right of any individual to indemnification shall be governed by the
indemnification provisions in effect at the time of such prior acts or
omissions.
SECTION 7.07. INSURANCE. This corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of this corporation, or who is or was serving at the request of this
corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against or incurred by the
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individual in that capacity or arising from the individual's status as a
director, officer, employee or agent, whether or not this corporation would have
power to indemnify the individual against the same liability under this Article
VII.
SECTION 7.08. OTHER DEFINITIONS. For purposes of this Article VII,
serving an employee benefit plan at the request of this corporation shall
include any service as a director, officer or employee of this corporation which
imposes duties on, or involves services by such director, officer or employee
with respect to an employee benefit plan, its participants, or its
beneficiaries. A person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interest of this corporation" referred to in
this Article VII.
For purposes of this Article VII, "party" includes any individual who
is or was a plaintiff, defendant or respondent in any action, suit or
proceeding.
For purposes of this Article VII, "official capacity," when used with
respect to a director, shall mean the office of director of this corporation;
and when used with respect to an individual other than a director, shall mean
the office in this corporation held by the officer or the employment or agency
relationship undertaking by the employee or agent on behalf of this corporation.
"Official capacity" does not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, employee benefit plan, or
other enterprise, whether for profit or not, except as set forth in Section 1 of
this Article VII.
SECTION 7.09. BUSINESS EXPENSES. Any payments made to any indemnified
party under this Article VII under any other right of indemnification shall be
deemed to be an ordinary and necessary business expense of this corporation, and
payment thereof shall not subject any person responsible for the payment, or the
board of directors, to any action for corporate waste or to any similar action.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
None.
ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this registration statement on Form S-8 (numbering corresponds generally to the
Exhibit Table in Item 601 of Regulation S-K).
List of Exhibits (filed herewith unless otherwise noted):
5.0 Opinion of Kilpatrick Stockton LLP as to the legality of the
Common Stock to be issued
10.0 First Capital Inc. 2009 Equity Incentive Plan(1)
10.1 Form of Equity Award Agreements
23.1 Consent of Kilpatrick Stockton LLP (contained in the Opinion
included in Exhibit 5.0)
23.2 Consent of Monroe Shine & Co., Inc.
24 Power of Attorney (contained on the signature pages).
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(1) Incorporated by Reference to the Registrant's Form DEF14A
filed with the SEC on April 9, 2009.
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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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than 20 percent
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) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed or
furnished to the Securities and Exchange Commission by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be 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 of the Registrant
under the Securities Act to any purchaser in the initial distribution of the
securities, in a primary offering of securities of the 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 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) 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; and
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(5) For purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(6) 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 SEC, such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in such Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, First
Capital Inc. 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 Corydon, State of Indiana, on May 29, 2009.
FIRST CAPITAL INC.
By: /s/ William W. Harrod
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William W. Harrod
President and Chief Executive Officer
(Principal executive officer)
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Harrod) constitutes and appoints William W. Harrod, as the
true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities to sign any or all amendments to the Form S-8 registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the United States 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 things requisite and
necessary to be done as fully, and to all intents and purposes, as he 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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ J. Gordon Pendleton Chairman of the Board May 29, 2009
------------------------------------
J. Gordon Pendleton
/s/ William W. Harrod President and Chief May 29, 2009
------------------------------------ Executive Officer
William W. Harrod (Principal executive officer)
/s/ Michael C. Frederick Chief Financial Officer May 29, 2009
------------------------------------ and Treasurer
Michael C. Frederick (Principal financial and accounting officer)
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/s/ Samuel E. Uhl Director May 29, 2009
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Samuel E. Uhl
/s/ Mark D. Shireman Director May 29, 2009
------------------------------------
Mark D. Shireman
/s/ Dennis L. Huber Director May 29, 2009
------------------------------------
Dennis L. Huber
/s/ Kenneth R. Saulman Director May 29, 2009
------------------------------------
Kenneth R. Saulman
/s/ John W. Buschemeyer Director May 29, 2009
------------------------------------
John W. Buschemeyer
/s/ Gerald L. Uhl Director May 29, 2009
------------------------------------
Gerald L. Uhl
/s/ James S. Burden Director May 29, 2009
------------------------------------
James S. Burden
/s/ James E. Nett Director May 29, 2009
------------------------------------
James E. Nett
/s/ Michael L. Shireman Director May 29, 2009
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Michael L. Shireman
/s/ Kathryn W. Ernstberger Director May 29, 2009
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Kathryn W. Ernstberger
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