As filed with the Securities and Exchange Commission on May 15, 1998
Registration No.________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-------------------
BYL BANCORP
(Exact name of issuer as specified in its charter)
California 33-0755794
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
18206 Imperial Highway, Yorba Linda,
California 92886 (Address of principal
executive offices)
BYL BANCORP 1997 STOCK OPTION PLAN
(Full title of the plan)
Robert Ucciferri
President and Chief Executive Officer
BYL Bancorp
18206 Imperial Highway
Yorba Linda, California 92886
(Name and address of agent for service)
(714) 996-1800
(Telephone number, including area code, of agent for service)
Copy to:
Loren P. Hansen, Esquire
Knecht & Hansen
1301 Dove Street, Suite 900
Newport Beach, California 92660
1
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED(1) SHARE(2) PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock, No Par
Value 460,519 $23.00 $10,591,937 $3,124.62
- -------------------------- ------------------------ ----------------------- ------------------------ -----------------------
EXPLANATORY NOTE
_______________
(1) This Registration Statement covers, in addition to the number of shares
of Common Stock stated above, such indeterminate number of shares as
may become subject to options under the BYL Bancorp 1997 Stock Option
Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(g).
2
In accordance with the Note to Part I of the Form S-8, the information
specified by Part I has been omitted from this Registration Statement.
3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. Incorporation of Documents by Reference. The Company
hereby incorporates by reference into this Registration Statement the
following documents:
(a) The BYL Bancorp Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997.
(b) All other reports filed with the Securities and Exchange Commission
("Commission") pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended ("1934 Act"), since December 31, 1996.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form S-4 that was filed with the Commission on
September 5, 1997 (file number 333-34995) and the Company's Registration
Statement on Form S-4 that was filed with the Commission on February 27, 1998
(file number 333-47013).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a
post-effective amendment which indicates that all securities 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 a part hereof
from the date of filing such documents.
ITEM 4. Description of Securities.
Inapplicable
ITEM 5. Interests of Named Experts and Counsel.
Inapplicable
ITEM 6. Indemnification of Directors and Officers.
Section 3.15 of the Company's Bylaws provides as follows:
(a) The corporation shall, to the maximum extent and in the manner
permitted by the California Corporations Code (the "Code"), indemnify each of
its directors against expenses (as defined in Section 317(a) of the Code),
judgments, fines, settlements, and other amounts actually and reasonably
incurred in connection with any proceeding (as defined in Section 317(a) of the
Code), arising by reason of the fact that such person is or was an agent of the
corporation. For purposes of this Section 3.15, a "director" of the corporation
includes any person (i) who is or was a director of the corporation, (ii) who is
or was serving at the request of the corporation as a director of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who
was a director of a
4
corporation which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
(b) The corporation shall have the power, to the extent and in the
manner permitted by the Code, to indemnify each of its officers, employees and
agents against expenses (as defined in Section 317(a) of the Code), judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with any proceeding (as defined in Section 317(a) of the Code),
arising by reason of the fact that such person is or was an officer, employee or
agent of the corporation. For purposes of this Section 3.15, an "officer",
"employee" or "agent" of the corporation includes any person (i) who is or was
an officer, employee, or agent of the corporation, (ii) who is or was serving at
the request of the corporation as an officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or (iii) who
was an officer, employee or agent of the corporation which was a predecessor
corporation of the corporation or of another enterprise at the request of such
predecessor corporation.
(c) Expenses incurred in defending any civil or criminal action or
proceeding for which indemnification is required pursuant to Section 3.15 shall
be paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
party to repay such amount if it shall ultimately be determined that the
indemnified party is not entitled to be indemnified as authorized in this
Section 3.15. Expenses incurred in defending any civil or criminal action or
proceeding for which indemnification is permitted pursuant to Section 3.15 may
be paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
party to repay such amount if it shall ultimately be determined that the
indemnified party is not entitled to be indemnified as authorized in this
Section 3.15.
(d) The indemnification provided by this Section 3.15 shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office, to the extent that such
additional rights to indemnification are authorized in the Articles of
Incorporation.
(e) The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was an agent of the corporation
against any liability asserted against or incurred by such person in such
capacity or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Section 3.15.
(f) No indemnification or advance shall be made under this Section
3.15, except where such indemnification or advance is mandated by law or the
order, judgment or decree of any court of competent jurisdiction, in any
circumstance where it appears:
(1) That it would be inconsistent with a provision of the Articles of
5
Incorporation, these bylaws, a resolution of the shareholders or an agreement in
effect at the time of the accrual of the alleged cause of the action asserted in
the proceeding in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
Section 204 of the California Corporations Code allows a corporation to
adopt a partial exemption from liability of its directors. New subsections (10)
and (11) of Section 204(a) of the California Corporations Code permit the
Articles of Incorporation to include the following provisions:
"(10) Provisions eliminating or limiting the personal
liability of a director for monetary damages in an action
brought by or in the right of the corporation for breach of
director's duties to the corporation and its shareholders, as
set forth in Section 309, provided, however, that (A) such a
provision may not eliminate or limit the liability of
directors (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii)
for acts of omissions that a director believes to be contrary
to the best interests of the corporation or its shareholders
or that involve the absence of good faith on the part of the
director, (iii) for any transaction from which a director
derived an improper personal benefit, (iv) for acts or
omissions that show a reckless disregard for the director's
duty to the corporation or its 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 corporation or its shareholders,
(v) for acts or omissions that constitute an unexcused pattern
of inattention that amounts to an abdication of the director's
duty to the corporation or its shareholders, (vi) under
Section 310 (which relates to transactions between
corporations and directors of corporations have interrelated
directors) or (vii) under Section 316 (which relates to
liability for illegal distributions or dividends) (B) no such
provision shall eliminate or limit the liability of a director
for any act or omission occurring prior to the date when the
provision becomes effective, and (C) no such provision shall
eliminate or limit the liability of an officer for any act or
omission as an officer, notwithstanding that the officer is
also a director or that his or her actions, if negligent or
improper, have been ratified by the directors.
"(11) A provision authorizing, whether by bylaw,
agreement, or otherwise, the indemnification of agents (as
defined in Section 317) in excess of that expressly permitted
by Section 317 for those agents of the corporation for breach
of duty to the corporation and its stockholders, provided,
however, that the provision may not provide for
indemnification of any agent for any acts or omissions or
transactions from which a director may not be relieved of
liability as set forth in the exception to paragraph (10) or
as to circumstances in which indemnity is expressly prohibited
by Section 317.
6
Notwithstanding this subdivision, in the case of a
close corporation any of the provisions referred to above may
be validly included in a shareholders' agreement.
Notwithstanding this subdivision, bylaws may require for all
or any actions by the board the affirmative vote of a majority
of the authorized number of directors. Nothing contained in
this subdivision shall affect the enforceability, as between
the parties thereto, of any lawful agreement not otherwise
contrary to public policy."
Section 204.5(a) was added to the California Corporations Code and
provides that if the articles of incorporation include a provision reading
substantially as follows: "The liability of the directors of the corporation for
monetary damages shall be eliminated to the fullest extent permissible under
"California law", then the corporation shall be considered to have adopted a
provision as authorized by paragraph (10) of subdivision (a) of Section 204 and
more specific wording shall not be required.
The Articles of the Company contains the following Article V:
"ARTICLE V - DIRECTOR LIABILITY
The liability of the directors of the Corporation for
monetary damages shall be eliminated to the fullest
extent permissible under California law."
In addition, the Articles of the Company contains the
following Article VI:
"ARTICLE VI - INDEMNIFICATION
The corporation is authorized to provide
indemnification of agents (as defined in Section 317
of the Corporation Code) for breach of duty to the
corporation and its stockholders through bylaw
provisions or through agreements with the agents, or
both, in excess of the indemnification otherwise
permitted by Section 317 of the Corporations Code,
subject to the limits on such excess indemnification
set forth in Section 204 of the Corporations Code."
The Company has adopted provisions in its bylaws and indemnification agreements
pursuant to the above provisions.
7
Section 317 of the California General Corporation Law is set forth below:
"Section 317. Indemnification of Corporate "Agent".
(a) For the purposes of this section, "agent" means 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" means 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 under subdivision (d) or paragraph (3)
of subdivision (e).
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any proceeding (other than an
action by or in the right of the corporation to procure a judgment in its favor)
by reason of the fact that such person is or was an agent of the corporation,
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding 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 such person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the interests of the corporation or that the
person had reasonable cause to believe that the person's conduct was unlawful.
(c) A corporation shall have power to indemnify any person 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 corporation to procure a judgment in
its favor by reason of the fact that such person is or was an agent of the
corporation, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such action if such person acted in
good faith, in a manner such person believed to be in the best interests of the
corporation and its shareholders.
No indemnification shall be made under this subdivision for any of the
following:
(1) In respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation in the performance of
such person's duty to the corporation and its shareholders, unless and only to
the extent that the court in which such proceeding is or was pending shall
determine upon application that, in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for the expenses and
then only to the extent that the court shall determine.
8
(2) Of amounts paid in settling or otherwise disposing of a pending
action without court approval.
(3) Of expenses incurred in defending a pending action which is settled
or otherwise disposed of without court approval.
(d) To the extent that an agent of a corporation has been successful on
the merits in defense of any proceeding referred to in subdivision (b) or (c) or
in defense of any claim, issue or matter therein, the agent shall be indemnified
against expenses actually and reasonably incurred by the agent in connection
therewith.
(e) Except as provided in subdivision (d), any indemnification under
this section shall be made by the corporation only if authorized in the specific
case, upon a determination that indemnification of the agent is proper in the
circumstances because the agent has met the applicable standard of conduct set
forth in subdivision (b) or (c), by any of the following:
(1) A majority vote of a quorum consisting of directors who are
not parties to such proceeding.
(2) If such a quorum of directors is not obtainable, by
independent legal counsel in a written opinion.
(3) Approval of the shareholders (Section 153), with the shares
owned by the person to be indemnified not being entitled to vote thereon.
(4) The court in which such proceeding is or was pending upon
application made by the corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by the
corporation.
(f) Expenses incurred in defending any proceeding may be advanced by
the corporation prior to the final disposition of such proceeding upon receipt
of an undertaking by or on behalf of the agent to repay such amount unless it
shall be determined ultimately that the agent is not entitled to be indemnified
as authorized in this section.
(g) The indemnification provided by this section shall not be deemed
exclusive of any additional rights to indemnification for breach of duty to the
corporation and its shareholders while acting in the capacity of a director or
officer of the corporation to the extent the additional rights to
indemnification are authorized in an article provision adopted pursuant to
paragraph (11) of subdivision (a) of section 204. The indemnification provided
by this section for acts, omissions, or transactions while acting in the
capacity of, or while serving as, a director or officer of the corporation but
not involving breach of duty to the corporation and its shareholders shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of
9
shareholders or disinterested directors, or otherwise, to the extent the
additional rights to indemnification are authorized in the articles of the
corporation. An article provision authorizing indemnification "in excess of that
otherwise permitted by Section 317" or "to the fullest extent permissible under
California law" or the substantial equivalent thereof shall be construed to be
both a provision for additional indemnification for breach of duty to the
corporation and its shareholders as referred to in, and with the limitations
required by, paragraph (11) of subdivision (a) of section 204 and a provision
for additional indemnification as referred to in the second sentence of this
subdivision. The rights to indemnity hereunder shall continue as to a person who
has ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of the person. Nothing
contained in this section shall affect any right to indemnification to which
persons other than such directors and officers may be entitled by contract or
otherwise.
(h) No indemnification or advance shall be made under this section,
except as provided in subdivision (d) or paragraph (3) of subdivision (e), in
any circumstance where it appears:
(1) That it would be inconsistent with a provision of the
articles, bylaws, a resolution of the shareholders or an agreement in effect
at the time of the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification.
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
(i) A 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 section. The fact that
a corporation owns all or a portion of the shares of the company issuing a
policy of insurance shall not render this subdivision inapplicable if either of
the following conditions are satisfied: (l) if the articles authorize
indemnification in excess of that authorized in this section and he insurance
provided by this subdivision is limited as indemnification is required to be
limited by paragraph (11) of subdivision (a) of Section 204; or (2)(A) the
company issuing the insurance policy is organized, licensed, and operated in a
manner that complies with the insurance laws and regulations applicable to its
jurisdiction of organization, (B) the company issuing the policy provides
procedures for processing claims that do not permit that company to be subject
to the direct control of the corporation that purchased that policy, and (C) the
policy issued provides for some manner of risk sharing between the issuer and
purchaser of the policy, on one hand, and some unaffiliated person or persons,
on the other, such as by providing for more than one unaffiliated owner of the
company issuing the policy or by providing that a portion of the coverage
furnished will be obtained from some unaffiliated insurer or reinsurer.
10
(j) This section does not apply to any proceeding against any trustee,
investment manager or other fiduciary of an employee benefit plan in such
person's capacity as such, even though such person may also be an agent as
defined in subdivision (a) of the employer corporation. A corporation shall have
power to indemnify such a trustee, investment manager or other fiduciary to the
extent permitted by subdivision (f) of Section 207."
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, 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.
ITEM 7. Exemption from Registration Claimed.
Inapplicable.
ITEM 8. Exhibits.
Exhibit No. Description
- ----------- -----------
4 BYL Bancorp 1997 Stock Option
Plan, as amended, and form Stock
Option Agreement
5 Opinion of Knecht & Hansen regarding
legality of shares to be registered
15 Letter regarding unaudited interim financial
information (Not Applicable)
23(a) Consent of Knecht & Hansen (filed as part of
Exhibit 5)
23(b) Consent of independent public accountants
25 Power of Attorney (included in signature page)
ITEM 9. Undertakings.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended (the
"1933 Act"), each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act)
hat is incorporated by reference in the
11
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.
(b) Insofar as indemnification for liabilities arising under the 1933
Act 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 Commission such indemnification is
against public policy as expressed in the 1933 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 of 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 1933 Act and will be governed by the final
adjudication of such issue.
(c) The undersigned registrant undertakes 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.
(d) The undersigned registrant undertakes that, for the purpose of
determining any liability under the 1933 Act, 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.
(e) The undersigned registrant undertakes 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.
12
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 Yorba Linda, State of California, on this 15th
day of May, 1998.
BYL BANCORP
By /s/ Robert Ucciferri
--------------------------------------
Robert Ucciferri
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert Ucciferri and Barry J. Moore,
jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Title Date
------ ----- ------
Principal Executive Officer:
/s/ Robert Ucciferri President and Chief Executive May 15, 1998
- ----------------------------- Officer
Robert Ucciferri
Principal Financial and Accounting Officer:
/s/ Barry J. Moore Senior Executive Vice President May 15, 1998
- ----------------------------- and Chief Financial Officer
Barry J. Moore
13
/s/ Leonard O. Lindborg Director May 15, 1998
- -----------------------------
Leonard O. Lindborg
/s/ H. Rhoads Martin, Jr. Director, Chairman of the Board May 15, 1998
- -----------------------------
H. Rhoads Martin, Jr.
/s/ John F. Myers Director May 15, 1998
- -----------------------------
John F. Myers
/s/ Brent W. Wahlberg Director May 15, 1998
- -----------------------------
Brent W. Wahlberg
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Board of Directors who administer the BYL Bancorp 1997 Stock Option Plan has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Yorba Linda, State of
California, on the 15th day of May, 1998.
BYL BANCORP
1997 STOCK OPTION PLAN
By /s/ Robert Ucciferri
----------------------------
Robert Ucciferri, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Name Title Date
Principal Executive Officer:
/s/ Robert Ucciferri President and Chief Executive May 15, 1998
- -----------------------------
Robert Ucciferri Officer
Principal Financial and Accounting Officer:
/s/ Barry J. Moore Senior Executive Vice President May 15, 1998
- ----------------------------- and Chief Financial Officer
Barry J. Moore
14
/s/ Leonard O. Lindborg Director May 15, 1998
- -----------------------------
Leonard O. Lindborg
/s/ H. Rhoads Martin, Jr. Director, Chairman of the Board May 15, 1998
- -----------------------------
H. Rhoads Martin, Jr.
/s/ John F. Myers Director May 15, 1998
- -----------------------------
John F. Myers
/s/ Brent W. Wahlberg Director May 15, 1998
- -----------------------------
Brent W. Wahlberg
15