As filed with the Securities and Exchange Commission on September 5, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CAPITOL BANCORP LTD.
(Exact name of registrant as specified in its charter)
MICHIGAN 38-2761672
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Capitol Bancorp Center, 200 N. Washington Square
Lansing, Michigan 48933
(517) 487-6555
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
SUN COMMUNITY BANCORP LIMITED AMENDED AND RESTATED STOCK INCENTIVE PLAN
(Full title of the plan)
Joseph D. Reid, Chairman and CEO
Capitol Bancorp Ltd.
Capitol Bancorp Center, 200 N. Washington Square
Lansing, Michigan 48933
(517) 487-6555
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be offering price per aggregate Amount of
registered(1) Registered(1) share(2) offering price(2) registration fee(2)
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Common Stock,
No par value 984,766 shares $21.40 $21,073,992 $1,938.81
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(1) The number of shares registered may be adjusted to prevent dilution from
stock splits, stock dividends and similar transactions. Pursuant to Rule
416(a) under the Securities Act of 1933, as amended (the "Securities Act"),
this registration statement shall cover such additional shares.
(2) Estimated pursuant to Rule 457(h) and Section 6 (b)(2) under the Securities
Act solely for the purpose of calculating the registration fee. The
proposed maximum offering price is based upon the average of the bid and
ask price of the Common Stock as reported on the NASDAQ National Market on
September 4, 2002 ($21.40).
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EXPLANATORY NOTE
Capitol Bancorp Ltd. (the "Registrant") hereby files this Registration
Statement of Form S-8 relating to its Common Stock, no par value, which may be
issued upon the exercise of options (collectively, "Options") granted or to be
granted under the option plan listed below, resulting from the share exchange
agreement ("exchange agreement") dated November 16, 2001 between the Registrant
and Sun Community Bancorp Limited ("Sun"), whereby Sun became a wholly owned
subsidiary of the Registrant.
In addition, pursuant to the exchange agreement, the Registrant assumed the
obligation of Sun under the Sun Community Bancorp Limited Amended and Restated
Stock Incentive Plan and each option to purchase Sun's common stock outstanding
immediately prior to the effective time of the Share Exchange became an option
to acquire a fraction of a share of the Registrant's common stock equal to the
product of .734 multiplied by the number of shares of Sun that were purchasable
under such options immediately prior to the effective time (rounded down to the
nearest whole share) at a price per share (rounded to the nearest whole cent)
equal to the per share exercise price specified for each such option divided by
..734.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Registrant, a Michigan corporation
(Commission File No. 33-24728C), pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated in this Registration
Statement by reference:
(a) the registrant's Annual Report on Form 10-K for the year ended December
31, 2001;
(b) all other reports filed by the registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 2001; and
(c) the description of the registrant's common stock set forth under "Item
1. Description of Registrant's Securities to be Registered" in its registration
statement on Form S-18, Reg. No. 33-24728C, filed with the Securities and
Exchange Commission on September 15, 1988, and Post Effective Amendment No. 1 to
Form S-3, Reg. No. 333-41215 and 333-41215-01, filed with the Securities and
Exchange Commission on February 9, 1998.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14, and 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 remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing such documents.
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Any statement contained in the documents incorporated, or deemed to be
incorporated, by reference herein or therein shall be deemed to be modified or
superseded for purposes of this Registration Statement and the Prospectus to the
extent that a statement contained herein or therein or in any other subsequently
filed document which also is, or is deemed to be, incorporated by reference
herein or therein 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 and the Prospectus.
The registrant shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Cristin
Reid English, Chief Administrative Officer, Capitol Bancorp Ltd., Capitol
Bancorp Center, 200 N. Washington Square, Lansing, Michigan 48933; telephone:
(517) 487-6555.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Michigan Business Corporation Act, as amended ("MBCA"), provides that a
Michigan corporation, such as Capitol Bancorp, Ltd., may indemnify a director,
officer, employee or agent of the corporation (an "Indemnitee") against the
Indemnitee's expenses and judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) involving the Indemnitee by reason of the fact that the
Indemnitee is or was a director, officer, employee or agent of the corporation,
if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in or not opposed to the best interest of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The MBCA also provides that in
derivative actions, a corporation may indemnify a director, officer, employee or
agent of the corporation against expenses actually and reasonably incurred by
the Indemnitee to the extent that the Indemnitee is successful on the merits or
otherwise in any such action, suit or proceeding or in the defense of any claim,
issue or matter therein. Under the MBCA, no indemnification shall be made with
respect to any claim, issue or matter as to which an Indemnitee shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court shall determine upon application that, despite the adjudication of
liability but in view of all of the circumstances of the case, the Indemnitee is
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fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper. The MBCA also generally permits the advancement of reasonable
expenses and empowers the corporation to purchase and maintain directors' and
officers' insurance.
Article VI of the Articles of Incorporation, as amended, of the registrant
contains provisions authorizing indemnification of directors, officers,
employees and agents of the registrant that are substantially similar to those
set forth in the MBCA and authorizes the registrant to purchase directors' and
officers' insurance. Article VI of the By-laws of the registrant contains
provisions authorizing indemnification of directors, officers, employees and
agents of the registrant to the fullest extent authorized or permitted by the
MBCA and authorizes the registrant to purchase directors' and officers'
insurance.
Section 209 of the MBCA provides that the articles of incorporation of a
corporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for the amount of a
financial benefit received by a director to which such director is not entitled,
(ii) for an intentional infliction of harm on the corporation or the
shareholders, (iii) under Section 551(1) of the MBCA (relating to liability for
unauthorized acquisitions or redemptions of, or dividends on, capital stock and
loans to a director, officer, or employee of the corporation or of a subsidiary
of the corporation) or (iv) for an intentional criminal act. Article VI of the
registrant's Articles of Incorporation include such a provision.
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 provisions described in this Item 6 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
Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are furnished with this Registration Statement:
Exhibit No. Description
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4 Instruments defining the Rights of Capitol's Security
Holders:
(a) Common Stock Certificate(1)
(b) Indenture dated December 18, 1997(2)
(c) Subordinated Debenture(2)
(d) Amended and Restated Trust Agreement dated
December 18, 1997(2)
(e) Preferred Security Certificate dated December
18, 1997(2)
(f) Preferred Securities Guarantee Agreement of
Capitol Trust I dated December 18, 1997(2)
(g) Agreement as to Expenses and Liabilities of
Capitol Trust I(2)
5 Opinion of Cristin Reid English as to the validity of the
shares.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Cristin Reid English (included in Exhibit 5).
24 Power of attorney (included on the signature page of the
Registration Statement).
99 Sun Community Bancorp Limited Amended and Restated Stock
Incentive Plan.
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(1) INCORPORATED BY REFERENCE FROM FORM S-18, REG. NO. 33-24728C, FILED
SEPTEMBER 15, 1988.
(2) INCORPORATED BY REFERENCE FROM POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-3,
REG. NO. 333-41215 AND 333-41215-01 FILED FEBRUARY 9, 1998.
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ITEM 9. UNDERTAKINGS.
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;
(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 into 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.
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 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.
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 Securities Act
of 1933 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.
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SIGNATURES
THE REGISTRANT. 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 Lansing, State of Michigan, on September 5,
2002.
CAPITOL BANCORP LTD.,
a Michigan corporation
By: /s/ Joseph D. Reid
------------------------------------
Joseph D. Reid
Its: Chairman and Chief Executive Officer
DIRECTORS AND OFFICERS OF THE REGISTRANT. Pursuant to the requirements of
the Securities Act of 1933, this Registration Statement has been signed below by
the following persons in the capacities indicated and on September 5, 2002. By
so signing, each of the undersigned, in his or her capacity as a director or
officer, or both, as the case may be, of the registrant, does hereby appoint
Joseph D. Reid and Lee W. Hendrickson, and each of them severally, his or her
true and lawful attorney to execute in his or her name, place and stead, in his
or her capacity as a director or officer, or both, as the case may be, of the
registrant, any and all amendments to this Registration Statement (including
post-effective amendments thereto) and all instruments necessary or incidental
in connection therewith, and to file the same with the Securities and Exchange
Commission. Each of said attorneys shall have full power and authority to do and
perform in the name and on behalf of each of the undersigned, in any and all
capacities, every act whatsoever requisite or necessary to be done in the
premises as fully, and for all intents and purposes, as each of the undersigned
might or could do in person, the undersigned hereby ratifying and approving the
acts of said attorneys and each of them.
Signatures Title
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Principal Executive Officer: Chairman of the Board, Chief Executive
Officer and Director
/s/ Joseph D. Reid
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Joseph D. Reid
Principal Financial Officer & Chief Financial Officer
Principal Accounting Officer:
/s/ Lee W. Hendrickson
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Lee W. Hendrickson
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Signatures Title
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/s/ Joseph D. Reid Chairman of the Board, CEO and Director
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Joseph D. Reid
Vice Chairman of the Board and Director
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Michael L. Kasten
Vice Chairman of the Board and Director
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Lyle W. Miller
/s/ Robert C. Carr Treasurer and Director
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Robert C. Carr
/s/ David O'Leary Secretary and Director
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David O'Leary
Director
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Louis G. Allen
Director
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Paul R. Ballard
/s/ David L. Becker Director
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David L. Becker
Director
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Douglas E. Crist
/s/ Cristin Reid English Chief Administrative Officer and
- --------------------------- Director
Cristin Reid English
/s/ James C. Epolito Director
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James C. Epolito
/s/ Gary A. Falkenberg Director
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Gary A. Falkenberg
/s/ Joel I. Ferguson Director
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Joel I. Ferguson
/s/ Kathleen A. Gaskin Director
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Kathleen A. Gaskin
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/s/ H. Nicholas Genova Director
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H. Nicholas Genova
/s/ Lewis D. Johns Director
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Lewis D. Johns
/s/ John S. Lewis Director
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John S. Lewis
/s/ Leonard Maas Director
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Leonard Maas
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Index to Exhibits
CAPITOL BANCORP LTD.
(A Michigan corporation)
Capitol Bancorp Center, 200 N. Washington Square
Lansing, Michigan 48933
INDEX TO EXHIBITS
Exhibit No. Description
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4 Instruments defining the Rights of Capitol's Security
Holders:
(a) Common Stock Certificate(1)
(b) Indenture dated December 18, 1997(2)
(c) Subordinated Debenture(2)
(d) Amended and Restated Trust Agreement dated
December 18, 1997(2)
(e) Preferred Security Certificate dated December
18, 1997(2)
(f) Preferred Securities Guarantee Agreement of
Capitol Trust I dated December 18, 1997(2)
(g) Agreement as to Expenses and Liabilities of
Capitol Trust I(2)
5 Opinion of Cristin Reid English as to the validity of the
shares.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Cristin Reid English (included in Exhibit 5).
24 Power of attorney (included on the signature page of the
Registration Statement).
99 Sun Community Bancorp Limited Amended and Restated Stock
Incentive Plan.
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(1) INCORPORATED BY REFERENCE FROM FORM S-18, REG. NO. 33-24728C, FILED
SEPTEMBER 15, 1988.
(2) INCORPORATED BY REFERENCE FROM POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-3,
REG. NO. 333-41215 AND 333-41215-01 FILED FEBRUARY 9, 1998.