As filed with the U.S. Securities and Exchange Commission on June 5, 2015

 

Registration No. 333-203885

  

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

PRE-EFFECTIVE AMENDMENT NO. 2

TO

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Howard Bancorp, Inc.

(Exact name of registrant as specified in its charter)

 

Maryland		6022		20-3735949
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(I.R.S. Employer Identification Number)

 

6011 University Boulevard

Suite 370

Ellicott City, Maryland 21043

(410) 750-0020

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

Mary Ann Scully

President and Chief Executive Officer

6011 University Boulevard

Suite 370

Ellicott City, Maryland 21043

(410) 750-0020

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

With copies to:

 

Frank C. Bonaventure, Esq. Ober, Kaler, Grimes & Shriver, a Professional Corporation 100 Light Street Baltimore, Maryland 21202 (410) 685-1120

Philip P. Phillips President and Chief Executive Officer Patapsco Bancorp, Inc. 1301 Merritt Boulevard Dundalk, Maryland 21222 (410) 285-1010

Joel E. Rappoport, Esq. Kilpatrick Townsend & Stockton LLP 607 14th Street, NW, Suite 900 Washington, DC 20005-2018 (202) 508-5800

 

Approximate date of commencement of the proposed sale of the securities to the public: As soon as practicable after this Registration Statement becomes effective and upon completion of the merger described in the enclosed proxy statement/prospectus.

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.   ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended, 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(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

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     ¨ (Do not check if a smaller reporting company)		Smaller reporting company   x

  

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

 

	Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)	¨
	Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)	¨

  

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such dates as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

EXPLANATORY NOTE

 

The sole purpose of this Amendment No. 2 is to file Exhibit No. 101 to the Registration Statement. Accordingly, this Amendment No. 2 consists only of the facing page, this explanatory note, and Part II of this Registration Statement. 

 

 

PART II – INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 20. Indemnification of Directors and Officers

 

Section 2-418 of the Maryland General Corporation Law establishes provisions that a corporation may (and, unless otherwise provided in the corporation’s charter, if the party to be indemnified is successful on the merits or otherwise, must) indemnify any director or officer made party to any threatened, pending or completed civil, criminal, administrative or investigative action, suit or proceeding by reason of service in the capacity of a director or officer, against judgments, penalties, fines, settlements and reasonable expenses incurred in connection with such proceeding, unless it is proved that (a) the act or omission for which the director or officer seeks indemnification was material to the matter giving rise to the action, suit or proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty, (b) the director or officer actually received an improper personal benefit in money, property or services or (c) in the case of a criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. If the proceeding is a derivative suit in favor of the corporation, indemnification may not be made in any proceeding in which the director or officer is adjudged to be liable to the corporation. The statute also provides for indemnification of directors and officers by court order.

 

Article 15 of the Articles of Incorporation, and Article VII of the Bylaws, of Howard Bancorp, Inc. (the “Corporation”) set forth circumstances under which directors, officers, employees and agents of the Corporation may be insured or indemnified against liability which they incur in their capacities as such:

 

ARTICLES OF INCORPORATION: FIFTEENTH: The Corporation shall indemnify (A) its directors and officers, whether serving the Corporation or at its request any other entity, to the full extent required or permitted by the general laws of the State of Maryland now or hereafter in force, including, without limitation, the advance of expenses to the full extent permitted by law, and (B) other employees and agents to such extent as shall be authorized by the Board of Directors or the Corporation’s Bylaws and be permitted by law. The foregoing rights of indemnification shall not be exclusive of any other rights to which those seeking indemnification may be entitled. The Board of Directors may take such action as is necessary to carry out these indemnification provisions and is expressly empowered to adopt, approve, and amend from time to time such by-laws, resolutions, or contracts implementing such provisions or such further indemnification arrangements as may be permitted by law. No amendment of the Charter of the Corporation or repeal of any of its provisions shall limit or eliminate the right to indemnification provided hereunder with respect to acts or omissions occurring prior to such amendment or repeal.

 

BYLAWS: ARTICLE VII. INDEMNIFICATION

 

As used in this Article VII, any word or words that are defined in Section 2-418 of the Maryland General Corporation Law, as amended from time to time (the “Indemnification Section”), shall have the same meaning as provided in the Indemnification Section.

 

The Corporation shall indemnify and advance expenses to a director or officer of the Corporation in connection with a proceeding to the fullest extent permitted by and in accordance with the Indemnification Section.

 

With respect to an employee or agent, other than a director or officer of the Corporation, the Corporation may, as determined by the Board of Directors of the Corporation, indemnify and advance expenses to such employee or agent in connection with a proceeding to the fullest extent permitted by and in accordance with the Indemnification Section.

 

The indemnification and advancement of expenses provided by this Article VII or provided in the Corporation’s Charter shall not be deemed exclusive of any other right, in respect of indemnification or otherwise, to which those seeking such indemnification or advancement of expenses may be entitled under any insurance or other agreement, vote of stockholders or disinterested Directors or otherwise.

 

 

The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or while a director, officer, employee or agent of the Corporation is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, other enterprise or employee benefit plan, against any liability asserted against and incurred by such person in any such capacity or arising out of such person’s position, whether or not the Corporation would have the power to indemnify such person under Maryland law.

 

Item 21. Exhibits

 

(a) Exhibits. The following exhibits are filed or furnished herewith or incorporated by reference:

 

Exhibit No.		Description		Incorporated by Reference to or Filing Status:
2.1		Agreement and Plan of Merger, dated as of March 2, 2015, by and between Howard Bancorp, Inc. and Patapsco Bancorp, Inc., and Amendment No. 1 thereto  (the schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K.  Howard undertakes to furnish supplemental copies of any of the omitted schedules or exhibits upon request by the Securities and Exchange Commission.)		Attached as Annex A to the joint proxy statement/ prospectus that is part of this Registration Statement
2.2		Purchase and Assumption Agreement, dated as of October 17, 2014, by and among the Federal Deposit Insurance Corporation, Receiver of NBRS Financial Bank, the Federal Deposit Insurance Corporation and Howard Bank		Exhibit 2.1 of the Company's Form 8-K filed on October 23, 2014
3.1		Articles of Incorporation of Howard Bancorp, Inc.		Exhibit 3.1 of the Company's Form S-1 filed November 28, 2011
3.2		Articles of Amendment to Articles of Incorporation of Howard Bancorp, Inc.		Exhibit 3.2 of the Company's Form S-1 filed November 28, 2011
3.3		Amended and Restated Articles Supplementary of  Senior Non-Cumulative Perpetual Preferred Stock, Series AA		Exhibit 3.3 of the Company's Form S-1 filed November 28, 2011
3.4		Amended and Restated Bylaws of Howard Bancorp, Inc.		Exhibit 3.1 of the Company's Form 8-K filed March 4, 2015
4.1		Form of Common Stock Certificate of Howard Bancorp, Inc.		Exhibit 4.1 of the Company's Form S-1 filed November 28, 2011
4.2		Form of Certificate for the Series AA Preferred Stock		Exhibit 4.2 of the Company's Form S-1 filed November 28, 2011

 

 

Exhibit No.		Description		Incorporated by Reference to or Filing Status:
5.1		Opinion of Ober, Kaler, Grimes & Shriver, a Professional Corporation, as to the legality of the Common Stock		Previously filed
8.1		Opinion of Kilpatrick Townsend & Stockton LLP regarding certain U.S. tax consequences of the merger		Previously filed
10.1*		Amended and Restated Employment Agreement between Howard Bank and Mary Ann Scully dated December 18, 2008		Exhibit 10.1 of the Company's Form S-1 filed November 28, 2011
10.2*		Amended and Restated Employment Agreement between Howard Bank and Paul G. Brown dated December 18, 2008		Exhibit 10.2 of the Company's Form S-1 filed November 28, 2011
10.3*		Amended and Restated Employment Agreement between Howard Bank and George C. Coffman dated December 18, 2008		Exhibit 10.3 of the Company's Form S-1 filed November 28, 2011
10.4*		Amended and Restated Employment Agreement between Howard Bank and Charles E. Schwabe dated December 18, 2008		Exhibit 10.4 of the Company's Form S-1 filed November 28, 2011
10.5*		Howard 2004 Stock Incentive Plan		Exhibit 4.2 of the Company’s Form S-8 filed April 4, 2013
10.6*		Form of Nonstatutory Stock Option Certificate and Grant Agreement under the 2004 Stock Incentive Plan		Exhibit 10.6 of the Company's Form S-1 filed November 28, 2011
10.7*		Howard 2004 Incentive Stock Option Plan		Exhibit 4.5 of the Company’s Form S-8 filed April 4, 2013
10.8*		Form of Incentive Stock Option Certificate and Grant Agreement under the 2004 Incentive Stock Option Plan		Exhibit 10.8 of the Company's Form S-1 filed November 28, 2011
10.9		Securities Purchase Agreement dated September 22, 2011 between the Secretary of the Treasury and Howard Bancorp, Inc. pursuant to Howard’s participation in SBLF		Exhibit 10.9 of the Company's Form S-1 filed November 28, 2011
10.10		Letter Purchase Agreement dated September 22, 2011 between the Secretary of the Treasury and Howard Bancorp, Inc. with respect to Howard’s repurchase of outstanding Series A and Series B Stock issued pursuant to TARP		Exhibit 10.10 of the Company's Form S-1 filed November 28, 2011
10.11*		Employment Agreement between Howard Bank and Dennis E. Finnegan Dated December 16, 2014		Exhibit 10.11 of the Company’s Form 10-K filed March 30, 2015
10.12		Form of Investment Agreement, dated as of March 2, 2015, between Howard Bancorp, Inc. and certain investors		Exhibit 10.1 of the Company's Form 8-K filed on March 3, 2015

  

 

Exhibit No.		Description		Incorporated by Reference to or Filing Status:
10.20*		Howard Bancorp, Inc.  2013 Equity Incentive Plan		Exhibit 10.20 to the Company’s Form 10-K filed March 27, 2014
10.21*		Employment Agreement between Howard Bank and Robert A. Altieri dated April 30, 2013		Exhibit 10.21 to the Company’s Form 10-Q filed August 14, 2013
10.22*		Form of Restricted Stock Grant Agreement under Howard Bancorp, Inc. 2013 Equity Incentive Plan		Exhibit 4.3 of the Company’s Form S-8 filed October 28, 2013
10.23*		Form of Nonstatutory Stock Option Grant Agreement under the 2013 Equity Incentive Plan		Exhibit 4.4 of the Company’s Form S-8 filed October 28, 2013
10.24*		Form of Incentive Stock Option Grant Agreement under the 2013 Equity Incentive Plan		Exhibit 4.5 of the Company’s Form S-8 filed October 28, 2013
10.25*		Form of Restricted Stock Grant Agreement under the 2004 Stock Incentive Plan		Exhibit 4.3 of the Company’s Form S-8 filed April 4, 2013
10.26		Branch Purchase and Assumption Agreement between NBRS Financial Bank and Howard Bank dated April 24, 2014		Exhibit 10.26 of the Company’s Form 8-K filed on April 29, 2014
10.27*		Supplemental Executive Retirement Plan of Howard Bank, effective December 1, 2014		Exhibit 10.27 of the Company’s Form 8-K filed January 6, 2015
21		Subsidiaries of the Registrant		Exhibit 21 of the Company's Form S-1/A filed February 13, 2012
23.1		Consent of Ober, Kaler, Grimes & Shriver, a Professional Corporation		Previously filed
23.2		Consent of Stegman & Company		Previously filed
23.3		Consent of TGM Group, LLC		Previously filed
23.4		Consent of Kilpatrick Townsend & Stockton LLP		Previously filed
24.1		Power of Attorney		Included on signature page of original filing
99.1		Consent of Griffin Financial Group, LLC		Previously filed
99.2		Consent of Keefe, Bruyette & Woods, Inc.		Previously filed

 

 

Exhibit No.		Description		Incorporated by Reference to or Filing Status:
99.3		Form of Howard Bancorp, Inc. Proxy Card		Previously filed
99.4		Form of Patapsco Bancorp, Inc. Proxy Card		Previously filed
101		Interactive Data Files pursuant to Rule 405 of Regulation S-T		Filed herewith

 

* Management compensatory plan, contract or arrangement

 

(b)

Financial Statement Schedules.

 

None.

 

(c)

Reports, Opinions and Appraisals.

 

Not applicable.

 

Item 22. 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 volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

 

 

(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.

 

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 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)

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.

 

5.

The undersigned registrant undertakes as follows: That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.

 

6.

The registrant undertakes that every prospectus (i) that is filed pursuant to the paragraph immediately preceding, or (ii) that purports to meet the requirements of section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes 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.

 

(b) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.

 

 

(c) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.

 

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.

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Ellicott City, State of Maryland, on June 5, 2015.

  

	HOWARD BANCORP, INC.
	By:	/s/ Mary Ann Scully
		Mary Ann Scully
		President and Chief Executive Officer

  

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

 

Name		Capacities		Date
/s/ Mary Ann Scully		President, Chief Executive		June 5, 2015
Mary Ann Scully		Officer, Chairman
		(Principal Executive Officer)
*		Chief Financial Officer		June 5, 2015
George C. Coffman		(Principal Accounting and
		Financial Officer)
*		Director		June 5, 2015
Richard G. Arnold
*		Director		June 5, 2015
Nasser Basir
*		Director		June 5, 2015
Andrew E. Clark
*		Director		June 5, 2015
Robert J. Hartson
*		Director		June 5, 2015
John J. Keenan
*		Director		June 5, 2015
Paul I. Latta, Jr.
*		Director		June 5, 2015
Kenneth C. Lundeen
*		Director		June 5, 2015
Karen D. McGraw
*		Director		June 5, 2015
Richard J. Morgan
*		Director		June 5, 2015
Donna Hill Staton
*		Director		June 5, 2015
Robert W. Smith, Jr.

  

 

*By:	/s/ Mary Ann Scully
	Mary Ann Scully pursuant to power of attorney