Securities Registration: Employee Benefit Plan (s-8)
May 26 2020 - 1:52PM
Edgar (US Regulatory)
As filed with
the Securities and Exchange Commission on May 26, 2020.
Registration No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN RIVER
BANKSHARES
(Exact Name of
Registrant as Specified in Its Charter)
California
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68-0352144
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(State
or Other Jurisdiction of
Incorporation or Organization)
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(IRS
Employer
Identification Number)
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3100 Zinfandel
Drive
Suite 450
Rancho Cordova,
California 95670
(Address, including
zip code, and telephone number, including
area code, of registrant’s principal executive offices)
American River
Bankshares 2020 Equity Incentive Plan
(Full Title of
Plan)
David E. Ritchie, Jr.
President
and Chief Executive Officer
3100 Zinfandel
Drive
Suite 450
Rancho Cordova,
California 95670
(916) 851-0123
(Name, address,
including zip code, and telephone number,
including area code, of agent for service)
with a copy
to:
Craig D. Miller,
Esq.
Manatt, Phelps &
Phillips, LLP
One Embarcadero
Center
San Francisco,
California 94111
(415) 291-7400
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,” “smaller
reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Larger
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer o
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Smaller
reporting company x
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Emerging growth company
o
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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. o
CALCULATION
OF REGISTRATION FEE
Title of securities to be
registered
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Amount to be
registered(1)
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Proposed
maximum offering
price per share(2)
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Proposed maximum
aggregate offering
price(2)
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Amount of
registration
fee
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Common
Stock, no par value per share(2)
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250,000
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$10.025
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$2,506,250
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$325.31
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(1)
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement
shall also cover any additional shares of common stock which become issuable under the registrant’s 2020 Equity Compensation
Plan (the “2020 Plan”) by reason of any stock dividend, stock split, recapitalization or any other transaction in
accordance with the terms of the 2020 Plan.
(2)
Estimated in accordance with Rule 457(c) and 457(h) under the Securities Act of 1933, as amended, solely for the purpose
of calculating the registration fee, based on the average of the high and low prices of shares of American River Bankshares common
stock reported on the Nasdaq Global Select Market on May 21, 2020.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
All 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 (the “Securities Act”) and the Note to Part I of Form S-8.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The documents
listed below have been filed with the Securities and Exchange Commission by American River Bankshares (the “Registrant”)
(File No. 000-31525) and are incorporated herein by reference to the extent not superseded by reports or other information
subsequently filed:
(1) Registrant’s
Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed on February 21, 2020 (including such information
in Part III therein incorporated by reference from the Registrant’s definitive proxy statement filed on April 9, 2020);
(2) Registrant’s
Current Reports on Form 8-K filed on January 16, 2020, January 23, 2020, April 9, 2020, April 16, 2020 and May 22, 2020 (other
than any information deemed furnished rather than filed in accordance with the rules and regulations of the Securities and Exchange
Commission);
(3) Registrant’s
Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 filed on May 7, 2020;
(4) The description
of the Registrant’s common stock contained in the Registrant’s registration statement filed by the Registrant pursuant
to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any amendment
or reports filed that update the description.
Please note that
all other documents and reports filed by the Registrant under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities
then remain unsold of this offering will be deemed to be incorporated herein by reference and to be part hereof from the date
of filing of such documents with the Securities and Exchange Commission.
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 subsequently filed document
which also is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement shall not
be deemed to constitute a part of this registration statement except as so modified or superseded.
Item 4.
Description of Securities.
Not applicable.
Item 5.
Interests of Named Experts and Counsel.
Not applicable.
Item 6.
Indemnification of Directors and Officers.
American
River Bankshares is incorporated under the California General Corporation Law. Section 317 of the California General Corporation
Law (“Section 317”) provides a statutory framework covering indemnification of any officer or director who
has been or is threatened to be made a party to any legal proceeding by reason of his or her service on behalf of the Registrant.
Section 317 provides that indemnification against expenses actually and reasonably incurred shall be made to any officer
or director who has been successful on the merits with respect to the defense of any proceeding but does not require indemnification
in other circumstances.
Section 317
provides that a corporation may indemnify any agent of the Registrant including officers and directors against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred in a third party proceeding against such person by reason
of that person’s service on behalf of the Registrant, provided the person acted in good faith and in a manner that the person
reasonably believed to be in the best interests of the Registrant.
Section 317
further provides that the Registrant may indemnify any agent who was or is a party or is threatened to be made a party to any
threatened, pending or completed action by or in the right of the Registrant against expenses actually and reasonably incurred
by the agent in connection with the defense or settlement of such action, provided that the person acted in good faith and in
a manner the person believed to be in the best interests of the Registrant and its shareholders. However, in actions brought by
or in the right of the Registrant, indemnification is not available without court approval for amounts paid in settling or otherwise
disposing of a pending action or expenses incurred in defending a pending action which is disposed of by settlement or otherwise.
Further, with respect to matters for which the agent shall have been adjudged to be liable to the Registrant, indemnification
for expenses is permissible only to the extent the court shall determine that the agent is fairly and reasonably entitled to indemnification.
In
addition, Section 317 provides that the indemnification provided by the statute is not exclusive of other rights to which
those seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise,
to the extent additional rights are authorized in the Registrant’s Articles of Incorporation. Section 317 permits the
advancing of expenses incurred in defending any proceeding against an agent of the Registrant by reason of that person’s
service on behalf of the Registrant upon the giving of an undertaking, by the indemnified person to repay those sums in the event
it is later determined that the person is not entitled to be indemnified. Finally, Section 317 permits the Registrant to
procure insurance on behalf of its directors, officers, and other corporate agents against liability asserted against or incurred
by these individuals even if the Registrant would not otherwise have the power under applicable law to indemnify them for their
expenses. The Registrant’s charter documents provide that each person who is or was a director or officer of the corporation
(or was serving at the request of the corporation as a director or officer of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise) including any current or former director or officer who was or is a party or is threatened
to be made a party to or is involved (as a party, witness or otherwise) in any proceeding, by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was an agent, is entitled to indemnification. The Registrant
has entered into indemnification agreements with its directors and officers. The Registrant also maintains directors’ and
officers’ liability insurance
Item 7.
Exemption From Registration Claimed.
Not applicable.
Item 8.
Exhibits.
The following
exhibits are filed as part of this Registration Statement:
*Filed herewith
(1)
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Filed as Exhibit 3.1 to the Registrant’s
Quarterly Report on Form 10-Q for the period ended March 31, 2011, filed with the Securities and Exchange Commission on May
10, 2011.
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(2)
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Filed as Exhibit 3.2 to the Registrant’s
Current Report on Form 8-K, filed with the Securities and Exchange Commission on June 21, 2019.
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(3)
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Incorporated by reference to Exhibit A
to the Registrant’s Definitive Proxy Statement filed with the Securities and Exchange Commission on April 9, 2020.
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(4)
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Filed as Exhibit 10.2 to the Registrant’s
Form 8-K, filed with the Securities and Exchange Commission on May 22, 2020.
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(5)
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Filed as Exhibit 10.3 to the Registrant’s
Form 8-K, filed with the Securities and Exchange Commission on May 22, 2020.
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(6)
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Filed as Exhibit 4.2 to the Registrant’s
Form 10-K, filed with the Securities and Exchange Commission on February 21, 2020.
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Item 9.
Undertakings.
(a) The 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 this 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 this
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 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 this Registration Statement or any
material change to such information in this Registration Statement.
Provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and 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 Section 15(d) of the Exchange Act of 1934 that are incorporated
by reference 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.
(b) The undersigned registrant hereby undertakes that, 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 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.
(c) 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 of whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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 Sacramento, State of California, on May 26, 2020.
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AMERICAN RIVER BANKSHARES
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(Registrant)
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/s/ David
E. Ritchie, Jr.
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David E. Ritchie, Jr.
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President and Chief Executive Officer
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Each of the
undersigned hereby appoints each of David E. Ritchie, Jr. and Mitchell A. Derenzo, and each of them, as attorney-in-fact and agent
for the undersigned, with full power of substitution, for and in the name, place and stead of the undersigned, to sign and file
with the U.S. Securities and Exchange Commission under the Securities Act of 1933, as amended, any and all amendments (including
post-effective amendments) to this registration statement, any other registration statements and exhibits thereto that is the
subject of this registration statement filed pursuant to Rule 462 under such Act, and any and all applications, instruments
and other documents to be filed with the U.S. Securities and Exchange Commission pertaining to the registration of securities
covered hereby, with full power and authority to do and perform any and all acts and things as may be necessary or desirable in
furtherance of such registration.
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.
Signature
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Title
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Date
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President and Chief Executive
Officer
(Principal Executive Officer)
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/s/
David E. Ritchie, Jr.
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May 26, 2020
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David E. Ritchie, Jr.
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Chief Financial Officer (Principal
Financial Officer and
Principal Accounting Officer)
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/s/
Mitchell A. Derenzo
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May 26, 2020
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Mitchell A. Derenzo
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/s/
Charles D. Fite
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Chairman/Director
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May 26, 2020
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Charles D. Fite
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/s/
Nicolas C. Anderson
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Director
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May 26, 2020
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Nicolas C. Anderson
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/s/
Kimberly A. Box
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Director
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May 26, 2020
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Kimberly A. Box
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/s/
Jeffrey Owensby
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Director
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May 26, 2020
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Jeffrey Owensby
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/s/
Julie A. Raney
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Director
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May 26, 2020
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Julie A. Raney
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/s/
William A. Robotham
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Director/Vice Chairman
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May 26, 2020
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William A. Robotham
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/s/
Philip A. Wright
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Director
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May 26, 2020
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Philip A. Wright
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