SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAPITAL CORP OF THE WEST
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(Exact name of registrant as specified in its charter)
California
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(State or other jurisdiction of incorporation or organization)
77-0405791
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(I.R.S. Employer Identification Number)
550 West Main Street, Merced, California 95340
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(Address of principal executive offices) (Zip Code)
Capital Corp of the West 1992 Stock Option Plan
Capital Corp of the West 401(k) Profit Sharing Plan
Capital Corp of the West Employee Stock Ownership Plan
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(Full Title of the Plan)
Thomas T. Hawker
President and Chief Executive Officer
Capital Corp of the West
550 West Main Street, Merced, California 95340
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(Name and address of agent for service)
(209) 725-2269
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Telephone Number, Including Area Code, of Agent For Service
CALCULATION OF REGISTRATION FEE
Title Of
Securities Amount Proposed Proposed Maximum Amount Of
To Be To Be Maximum Offering Aggregate Offering Registration
Registered Registered Price Per Share (1/) Price Fee
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1992 Stock 561,828 10.6875 6,004,537 1,585
Option Plan -
Common Stock
401(k) Profit 150,000 10.6875 1,603,125 423
Sharing Plan -
Common Stock
Employee Stock
Ownership
Plan-Common Stock 250,000 10.6875 2,671,875 705
(1/) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) and (g) based on the average of the
high and low prices of the Company's common stock as reported on the Nasdaq
National Market System on June 2, 2000. In addition to the common stock set
forth in the table, the amount to be registered includes an indeterminate
number of shares issuable pursuant to stock splits and stock dividends and in
accordance with Rule 416(b). In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plans described herein.
The registrant incorporates by reference the contents of Registration
Statement No. 333-4054 filed on April 24, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference in this registration
statement the following documents:
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(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the Quarter ended
March 31, 2000";
(c) The description of the Company's common stock contained in the
Company's Registration Statement on Form 8-A filed under the Securities
Exchange Act of 1934, as amended ("Exchange Act") on November 23, 1995 to
register the common stock, and the description of the Company's Preferred
Stock Purchase Rights contained in a subsequent Registration Statement on
Form 8-A filed under the Exchange Act on October 1, 1977 to register the
Rights (File No. 0-27384);
(d) All documents subsequently filed by the Company, the 401(k) Profit
Sharing Plan ("401(k)"), or the Employee Stock Ownership Plan ("ESOP")
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this registration statement which
indicates that all securities offered hereby have been sold or which
deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Articles of Incorporation provide that the liability of
the directors for monetary damages shall be eliminated to the fullest extent
permissible under the California Corporation Law. Pursuant to California
law, the Company's directors will not be liable for monetary damages for
breach of the directors' fiduciary duty of care to the Company and its
shareholders. However, this provision does not eliminate the duty of care,
and in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under California
law. In addition, each director will continue to be subject to liability for
(i) acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law, (ii) acts or omissions that a director believes to
be contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director, (iii) any
transaction from which a director derived an improper personal benefit, (iv)
acts or omissions that show a reckless disregard for the director's duty to
the Company or its
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shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a
risk of serious injury to the Company or its shareholders, (v) acts or
omissions that constitute an unexcused pattern of inattention that amounts to
an abdication of the director's duty to the Company or its shareholders, (vi)
any transaction that constitutes an illegal distribution or dividend under
California law, and (vii) any transaction involving an unlawful conflict of
interest between the director and the Company under California law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental
laws.
Section 317 of the California Corporation Law expressly grants to each
California corporation the power to indemnify its directors, officers and
agents against judgments, fines, settlements and expenses incurred in the
performance of their duties. Rights to indemnification beyond those provided
by Section 317 may be valid to the extent that such rights are authorized in
the corporation's articles of incorporation. Indemnification may not be
made, however, if inconsistent with the articles of incorporation, bylaws,
shareholder resolutions or an agreement which prohibits or limits
indemnification.
With respect to all proceedings other than shareholder derivative
actions, Section 317 permits a California corporation to indemnify any of its
directors, officers or other agents only if such person acted in good faith
and in a manner such person reasonably believed to be in the best interests
of the corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of the person was unlawful. In the
case of derivative actions, a California corporation may indemnify any of its
directors, officers or agents only if such person acted in good faith and in
a manner such person believed to be in the best interests of the corporation
and its shareholders. Furthermore, in derivative actions, no indemnification
is permitted (i) with respect to any matter with respect to which the person
to be indemnified has been held liable to the corporation, except to the
extent the court approves indemnification of expenses; (ii) of amounts paid
in settling or otherwise disposing of a pending action without court
approval; or (iii) of expenses incurred in defending a pending action which
is settled or otherwise disposed of without court approval. To the extent
that a director, officer or agent of a corporation has been successful on the
merits in defense of any proceeding for which indemnification is permitted by
Section 317, a corporation is obligated by Section 317 to indemnify such
person against expenses actually and reasonably incurred in connection with
the proceeding.
The Company's bylaws provide indemnification to fullest extent
permissible under California law, subject to the following limitations: a)
settlements must be approved by the Company and indemnification for
proceedings brought against the Company by the indemnitee must be approved by
the Company's board; b) the Company must approve expenses of defense or
investigation; c) no indemnification is paid if the indemnitee has already
been indemnified by insurance payments (except for amounts the policy does
not pay); d) no payment is made if the indemnitee has received already
payment under some other arrangement with the Company (except for amounts not
paid under those arrangements); e) no payment is made if the indemnitee
gained any personal profit or advantage to which the person was not legally
entitled or if the person was involved in intentional misconduct or a knowing
and culpable violation of law; (f) no
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payment is made in cases involving liabilities under Section 16(b) of the
Exchange Act or similar provisions of any federal, state, or local statutory
law.
FDIC regulations prohibit the indemnification by insured banks and
their holding companies of their directors, officers and other
institution-affiliated persons for that portion of the costs sustained with
regard to an administrative or civil enforcement action commenced by any
federal banking agency that results in a final order or settlement pursuant
to which a director, officer or other party is assessed a civil money
penalty, removed from office, prohibited from participating in the affairs of
an insured institution or required to cease and desist from or to take an
affirmative action under the Federal Deposit Insurance Act. This regulation
permits an institution to make an indemnification payment to, or for the
benefit of, a director, officer or other party only if the institution's
Board of Directors, in good faith, determines that the individual acted in
good faith and in a manner that he or she believed to be in the best
interests of the institution and that the payment of indemnification will not
adversely affect the institution's safety and soundness. The director,
officer or other party must agree in writing to reimburse the institution
for any indemnification payments received should the proceeding result in a
final order being instituted against the individual assessing a civil money
penalty, removing the individual from office, or requiring the individual to
cease and desist from certain institutional activity.
The Registrant also maintains officers and director's liability
insurance in the amount of $3,000,000.
The 401(k) and the ESOP provide that the Company will indemnify all
employees who serve as members of the administrative committee for the 401(k)
or who serve as trustee of the 401(k), against all liability arising in
connection with their duties under the 401(k), except for acts of
embezzlement, or diversion of trust funds by the employee or acts of gross
negligence and, in the case of the ESOP, arising in connection with actions
of persons unrelated to the trustee.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index attached hereto is incorporated by reference.
The registrant has submitted the 401(k) and the ESOP, and hereby
undertakes to submit all amendments to the 401(k) and the ESOP, to the
Internal Revenue Service ("IRS") in a timely manner and will make all changes
required by the IRS in order to qualify the plans.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
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(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;
(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) do not apply
if 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 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 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 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
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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.
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SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Merced, State of California, on
July 10, 2000.
CAPITAL CORP OF THE WEST
By:______________________
Thomas T. Hawker
President and Chief
Executive Officer
POWER OF ATTORNEY
The officers and directors of Capital Corp of the West whose signatures
appear below hereby constitute and appoint Thomas T. Hawker and R. Dale
McKinney, and each of them, their true and lawful attorneys and agents, with
full power of substitution, each with power to act alone, to sign and execute
on behalf of the undersigned any amendment or amendments (including
post-effective amendments) to this Registration Statement on Form S-8 and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do everything
necessary to accomplish the foregoing, as fully to all intents and purposes
as he or she might or could do in person, and each of the undersigned does
hereby ratify and confirm all that each of said attorneys and agents, or
their substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on July 10, 2000.
SIGNATURE TITLE
/s/ Thomas T. Hawker
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Thomas T. Hawker President, Chief Executive Officer and
Director (Principal Executive Officer)
/s/ R. Dale McKinney
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R. Dale McKinney Senior Vice President and Chief
Financial Officer
(Principal Financial and Accounting Officer)
/s/ Lloyd H. Ahlem
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Lloyd H. Ahlem Director
/s/ Dorothy L. Bizzini
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Dorothy L. Bizzini Director
/s/ Jerry E. Callister
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Jerry E. Callister Director
/s/ Curtis Riggs
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Curtis Riggs Director
/s/ John D. Fawcett
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John D. Fawcett Director
/s/ Bertyl W. Johnson
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Bertyl W. Johnson Director
/s/ James W. Tolladay
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James W. Tolladay Director and Chairman of the Board
/s/ Tom A.L. Van Groningen
- -------------------------- Director
Tom A.L. Van Groningen
THE PLANS. Pursuant to the requirements of the Securities Act of 1933,
as amended, the trustees (or other persons who administer the employee
benefit plans) have duly caused this Registration Statement to be signed on
their behalf by the undersigned, thereunto duly authorized, in the City of
Merced, State of California, on July 10, 2000.
CAPITAL CORP OF THE WEST
Stock Bonus Employee Stock Ownership Plan
By: /s/ R. Dale McKinney, Trustee
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R. Dale McKinney, Trustee
By: /s/ Ed J. Rocha, Trustee
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Ed J. Rocha, Trustee
By: /s/ Jerome V. Murphy, Trustee
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Jerome V. Murphy, Trustee
By: /s/ Donielle Kramer, Trustee
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Donielle Kramer, Trustee
CAPITAL CORP OF THE WEST
401(k) Plan
By: /s/ R. Dale McKinney, Trustee
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R. Dale McKinney, Trustee
By: /s/ Jerome V. Murphy, Trustee
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Jerome V. Murphy, Trustee
By: /s/ Ed J. Rocha, Trustee
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Ed J. Rocha, Trustee
By: /s/ Donielle Kramer, Trustee
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Donielle Kramer, Trustee
EXHIBIT LIST
4.1 Articles of Incorporation (incorporated by reference to Exhibit 3.1 of the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1996*)
4.2 Bylaws (incorporated by reference to Exhibit 3.2 of the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1996*)
4.3 Capital Corp of the West Stock 1992 Stock Option Plan (incorporated by reference to
Exhibit 10.6 of the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995*)
4.4 Capital Corp of the West 401(k) Plan (incorporated by reference to Exhibit 10.7 of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995*)
4.5 Capital Corp of the West Stock Bonus Employee Stock Ownership Plan (incorporated by
reference to Exhibit 10.8 of the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995*)
*5.1 Opinion of counsel as to the legality of securities being registered
*5.2 Copy of Internal Revenue Service determination letter dated October 25, 1995 regarding
County Bank 401(k) Plan (incorporated by reference to Exhibit 5.2 to Registration
Statement on Form S-8 of the registrant dated April 9, 1996 (File No. 333-4054))
23.1 Consent of counsel (included in Exhibit 5.1)
24 Power of attorney (included in signature page of this registration statement)
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* File No. 0-27384