Registration Statement No. 33-78242
As filed with the Securities and Exchange Commission on March 18, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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POST-EFFECTIVE AMENDMENT NO. 1 to
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BAY AREA BANCSHARES
(Exact name of registrant as specified in its charter)
California 94-2779021
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
Number)
900 Veterans Boulevard
Redwood City, California 94063
(Address of Principal Executive Offices)
Bay Area Bancshares 1993 Stock Option Plan
(Full title of the plan)
Anthony Gould
Chief Financial Officer
Bay Area Bancshares
900 Veterans Boulevard
Redwood City, California 94063
(Name and address of agent for service)
(415) 367-1600
(Telephone number, including area code, of agent of service)
with copies to:
Jay D. Pimentel
Joan L. Grant
c/o Haines, Brydon & Lea
A Law Corporation
235 Pine Street, Suite 1300
San Francisco, California 94104
Telephone: (415) 981-1050
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Pursuant to the Note to Part 1, the document or documents containing
the Part 1 information have not been included in the registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant's Annual Report on Form 10-K, filed pursuant to Section
13 of the Securities Exchange Act of 1934, for the fiscal year ended December
31, 1996, is hereby incorporated by reference into this registration statement.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of filing of such documents.
The information contained in the documents incorporated by reference is
qualified by the information contained in this registration statement. Any
statement contained herein, 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incorporated by reference herein, shall be deemed to be modified or superseded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 in any subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not, except as so modified or
superseded, be deemed to constitute a part of this registration statement.
Item 4. Description of Securities.
Authorized Shares - General
The authorized capital stock of the Corporation consists of 20,000,000
shares of common stock, no par value, and 10,000,000 shares of preferred stock.
Each share of common stock has the same rights, preferences and privileges as
every other share of common stock. The common stock has no conversion or
redemption rights or sinking funds provisions. Holders of the common stock are
entitled to participate in such dividends as may be declared by the Board out of
funds legally available therefor and, in the event of liquidation, dissolution
or winding up of the Corporation, are entitled to share ratably in all assets
remaining after the payment of liabilities and the payment to preferred
shareholders. The Corporation's common shares are not subject to assessment
under the applicable law.
The transfer agent and registrar for the Corporation's common stock is
U.S. Stock Transfer Corporation of Glendale, California.
Voting Rights
Each share of common stock is entitled to one vote on any issue
requiring a vote and holders of the common stock have the right to cumulate
votes in elections of directors, as described below.
California law provides that a shareholder of a California corporation,
or his proxy, may cumulate votes in elections for directors, that is, each
shareholder has a number of votes equal to the number of shares owned by him,
multiplied by the number of directors to be elected, and he may cumulate such
votes for a single candidate or distribute such votes among as many candidates
as he deems appropriate. However, a shareholder may cumulate votes only for a
candidate or candidates whose names have been properly placed in nomination
prior to the voting and only if the shareholder has given notice at the meeting,
prior to the voting, of his intention to cumulate his votes. If any one
shareholder has given such notice, all shareholders may cumulate votes for
candidates in nomination.
Except as set forth below with respect to the voting rights of the
preferred shares, holders of the Corporation's common stock have the exclusive
right to notice of shareholders' meetings and the exclusive right to vote at
shareholders' meetings, and the Corporation's Articles of Incorporation may be
amended by the affirmative vote of the holders of a majority of the common stock
of the Corporation. The approval of the holders of two-thirds (2/3) of the
Series A preferred shares is required for the Corporation to do any of the
following:
1. Amend or repeal any provision of, or add any provision to, the
Corporation's Articles of Incorporation, if such action would alter or change
the rights, preferences, privileges, or powers of, or the restrictions provided
for the benefit of, any Series A Shares, so as to affect such Series A Shares
adversely; or
2. Increase the authorized number of the Series A Shares; or
3. Create any new class of shares having preferences over or being on a
parity with the Series A shares as to dividends or assets, unless the purpose of
creation of such class is, and the proceeds to be derived from the sale and the
issuance thereof are to be used for, the retirement of all Series A Shares then
outstanding; or
4. Purchase any common stock; or
5. Sell, lease, exchange, transfer, convey, or otherwise dispose of, or
create or incur any mortgage, lien, charge or encumbrance on or security
interest in or pledge of, or sell and leaseback, all or substantially all of the
property or business of the Corporation.
Nominations of Directors
The Corporation's Bylaws provide that nominations for directors by
shareholders may be made, provided that certain informational requirements
concerning the identities of the nominating shareholder and the nominee are
complied with in advance of the meeting. The written nomination must include the
following information: (a) the name and address of each proposed nominee, (b)
the principal occupation of each proposed nominee, (c) the number of shares of
the Corporation owned by each proposed nominee, (d) the name and residence
address of the nominating shareholder, and (e) the number of shares of voting
stock of the corporation owned by the nominating shareholder. This provision is
intended to provide advance notice to management of any effort to effect an
election contest or a change in control of the Board of Directors.
Dividends
The dividend policy of the Corporation is subject to the discretion of
the Board of Directors and depends upon a number of factors, including earnings,
financial condition, cash needs and general business conditions. In addition,
the Board of Directors may declare dividends only out of funds legally available
therefor.
The California General Corporation Law provides that a corporation may
make a distribution if its retained earnings at least equal the amount of the
proposed distribution. In the event that sufficient retained earnings are not
available for the proposed distribution, a corporation may nevertheless make a
distribution if, immediately after giving effect to the proposed distribution,
it meets both the "quantitative solvency" and the "liquidity" tests, as set
forth in the law. In general, the quantitative solvency test requires that the
sum of the assets of the corporation equal at least 1-1/4 times its liabilities.
The liquidity test generally requires that a corporation have current assets at
least equal to current liabilities or, if the average of earnings of the
corporation before taxes on income and before interest expense for the two
preceding fiscal years was less than the average of the interest expense of the
corporation for such fiscal years, current assets must equal at least 1-1/4
times current liabilities.
The Corporation's primary source of income is the receipt of dividends
from its subsidiary, the Bank. The Bank's ability to pay dividends is subject to
the restrictions of the California Financial Code, which restricts the amount
available for cash dividends to the lesser of the retained earnings or the
Bank's net income for its last three fiscal years (less any distributions to
shareholders made during such period). Where the above test is not met, cash
dividends may still be paid, with the prior approval of the California
Commissioner of Financial Institutions, in an amount not exceeding the greatest
of (1) the retained earnings of the bank; (2) the net income of the bank for its
last fiscal year; or (3) the net income of the bank for its current fiscal year.
On December 31, 1997, the Bank was legally able to pay dividends.
Issuance of Additional Shares
The Corporation has authorized capital stock consisting of 20,000,000
common shares and 10,000,000 preferred shares. Such shares have been authorized
in order that the Corporation may, in the future, raise additional capital for
growth purposes or to respond to regulatory capital requirements. While the
Corporation has no present plans to do so, such shares may be offered without
the approval of the then shareholders of the Corporation. Authorized but
unissued shares are sometimes used in connection with responses to attempts to
acquire control of a corporation. Although the Board of Directors is not aware
of and does not anticipate any attempt to acquire control of the Corporation,
authorized but unissued shares can be used to respond to such attempts by
selling shares to a party who supports existing management or in order to
increase the number of shares outstanding, which would both increase the amount
of consideration necessary to effect a change in control of the Corporation and
dilute the percentage ownership and voting rights of an acquiror that had
already acquired some portion of the Corporation's outstanding stock.
Preemptive Rights
Holders of the common stock of the Corporation do not have preemptive
rights, that is, any rights to subscribe for additional shares or other
securities which the Corporation may issue in the future. Therefore, future
shares of the Corporation's common stock or other securities may be offered to
the investing public or to shareholders, at the discretion of the Corporation's
Board of Directors.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article FOUR of the Registrant's Articles of Incorporation provides
that the Registrant is authorized to indemnify its directors, officers,
employees and other agents as follows:
"FOUR: (a) The liability of the directors of the corporation for
monetary damages shall be eliminated to the fullest extent permissible under
California law.
"(b) This corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the Corporations Code) through bylaw
provisions, agreements with the agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject to the limits of such
excess indemnification set forth in Section 204 of the California Corporations
Code with respect to actions for breach of duty to the corporation and its
shareholders."
Article VI of the Registrant's Bylaws provides for indemnification of
directors, officers, employees and other "agents" of the corporation as follows:
"ARTICLE VI
"Indemnification
"Section 1. Definitions. For the purposes of this Article,
"agent" includes any person who is or was a Director, officer, employee, or
other agent of the corporation, or is or was serving at the request of the
corporation as a Director, officer, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, or other enterprise, or
was a Director, officer, employee, or agent of a foreign or domestic corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation; "proceeding" includes any
threatened, pending, or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes without limitation
attorneys' fees and any expenses of establishing a right to indemnification
pursuant to law.
"Section 2. Extent of Indemnification. The corporation shall,
to the maximum extent permitted by the California General Corporation Law,
advance expenses to and indemnify each of its agents against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding arising by reason of the fact any such person
is or was an agent of the corporation.
"Section 3. Insurance. The corporation shall have power to
purchase and maintain insurance on behalf of any agent of the corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such whether or not the corporation
would have the power to indemnify the agent against such liability under the
provisions of this Article."
The provisions of the California General Corporation Law relating to
indemnification of directors, officers, employees and other agents of a
corporation, as presently in effect, are set forth in Sections 204 and 317,
copies of which are included in this Registration Statement as Exhibit 99.
The Registrant maintains directors' and officers' liability insurance
which covers certain liabilities and expenses of officers and directors of the
Registrant and covers the Registrant for reimbursement of payments to directors
and officers in respect of such liabilities and expenses.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Bay Area Bancshares 1993 Stock Option Plan *
4.2 Amendment No. 1 to the Bay Area Bancshares 1993 Stock Option
Plan
4.3 Form of Incentive Stock Option Agreement (employees who are
not directors)
4.4 Form of Incentive Stock Option Agreement (employees who are
directors)
4.5 Form of Stock Option Agreement (nonemployee-directors or
consultants)
5. Opinion of Holmes & Lea (now Haines, Brydon & Lea) *
24.1 Consent of Holmes & Lea (contained in Exhibit 5) (now Haines,
Brydon & Lea) *
24.2 Consent of Coopers & Lybrand LLP **
25. Power of Attorney (contained in the signature page hereof)
99. Sections 204 and 317 of the California General Corporation
Law, with respect to indemnification
* Filed as an exhibit to the original registration statement.
** Filed as an exhibit to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.
Item 9. Undertakings.
The undersigned registrant hereby undertakes (1) to file, during any
period in which it offers or sells securities, a post-effective amendment to
this Registration Statement to include any additional or changed material
information on the plan of distribution; (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; and
(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 this
offering.
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
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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 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 Redwood City, State of California, on March 9, 1998.
BAY AREA BANCSHARES
by /s/Robert S. Haight
Robert R. Haight
Chairman of the Board, President
and Chief Executive Officer
Each person whose signature appears below hereby authorizes Robert R. Haight and
Anthony J. Gould and each and any of them, as attorneys-in-fact and agents, with
full powers of substitution, to sign on his or her behalf, individually and in
the capacities stated below, and to file any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents full power and authority to perform any other act on behalf of the
undersigned.
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 Title Date
______*_______ Director and Secretary March 9, 1998
Gary S. Goss
Chairman of the Board of Directors,
/s/Robert S. Haight President and Chief Executive Officer March 9. 1998
Robert S. Haight
/s/Stanley A. Kangas Director March 10, 1998
Stanley A. Kangas
________*_________ Director March 9, 1998
David J. Macdonald
________*_________
Thorwald A. Madsen Director March 9, 1998
/s/Dennis W. Royer Director March 3, 1998
Dennis W. Royer
________*_______ Chief Financial (Accounting) Officer March 9, 1998
Anthony J. Gould
*by/s/Robert R. Haight
Robert R. Haight, under Power of
Attorney dated
April 19, 1994
Exhibit Index
4.2 Amendment No. 1 to the Bay Area Bancshares 1993 Stock Option Plan
4.3 Form of Incentive Stock Option Agreement (employees who are not directors)
4.4 Form of Incentive Stock Option Agreement (employees who are directors)
4.5 Form of Stock Option Agreement (nonemployee-directors or consultants)
99 Sections 204 and 317 of the California General Corporation Law, with
respect to indemnification