SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TEMECULA VALLEY BANCORP INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 46-0476193
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
27710 Jefferson Avenue, Suite A100, Temecula, CA 92590
(Address of Principal Executive Offices) (Zip Code)
Temecula Valley Bank, National Association
1996 Incentive and Nonqualified Stock Option Plan (Employees),
as Amended, and as Adopted and Assumed by Temecula Valley Bancorp Inc.
(Full title of the Plan)
Stephen H. Wacknitz
President and Chief Executive Officer
Temecula Valley Bancorp Inc.
27710 Jefferson Avenue, Suite A100
Temecula, CA 92590
(Name and Address of Agent for Service)
(909) 694-9940
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Proposed
Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To be To Be Price Offering Registration
Registered Registered(1) Per Unit Price Fee(2)
Common stock 572,872 $11.60 $6,645,315 $612
$0.001 par shares
value
<FN>
(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 Temecula Valley Bank, National
Association 1996 Incentive and Nonqualified Stock Option Plan
(Employees)("1996 Plan"), as Amended, and as Adopted and Assumed by Temecula
Valley Bancorp Inc. ("Bancorp") as a result of the adjustment provisions
thereof.
(2) The fee was calculated as follows: $92 for each $1 million registered.
</FN>
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document containing the information in Part I and the
documents incorporated by reference into this Registration Statement
constitute a prospectus that meets the requirements of Section 10(a) of the
Act. Pursuant to the notes to Form S-8, such documents need not be filed
with the Securities and Exchange Commission ("SEC")but must be given to
participants in the 1996 Plan.
Bancorp acquired all the outstanding common stock of Temecula
Valley Bank, N.A. (the "Bank") in a bank holding company reorganization (the
"Reorganization") consummated on June 3, 2002. As a result of the
Reorganization, the outstanding shares of the Bank were exchanged for shares
of Bancorp on a tax-free, one-share-for one-share basis and the Bank became a
wholly-owned subsidiary of Bancorp. Additionally, Bancorp was designated as
the "successor-registrant" to the Bank which previously had filed reports and
proxy statements pursuant to the Exchange Act with the Comptroller of the
Currency ("OCC").
As part of the Reorganization, Bancorp adopted and assumed
certain stock based compensation plans of the Bank, including the 1996 Plan.
These plans will apply to the shares of common stock of Bancorp. Shares of
the Bank which were to be issued pursuant to the 1996 Plan had previously
been registered with the OCC pursuant to the Act prior to the Reorganization.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Bank's Form 10-KSB for the year ended December 31, 2001
(as filed with the OCC);
(b) The Bank's Form 10-QSB for the quarter ended March 31, 2001
(as filed with the OCC); and
(c) The Bancorp's Form 8-A (as filed with the SEC), including
the description of Bancorp's common stock included therein filed in
connection with the Reorganization.
Additionally, all documents subsequently filed by Bancorp
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 be part thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
TEMECULA VALLEY BANCORP INC.
The Bancorp's bylaws provide for indemnification of its officers,
directors, employees and agents to the fullest extent permitted by Delaware
and California law. See a discussion of California law below under Temecula
Valley Bank, N.A. Bancorp's Certificate of Incorporation also contains a
provision, consistent with Delaware law, reducing or eliminating director
liability in certain circumstances.
Section 145 of the Delaware Corporation Law provides that
corporations may indemnify an individual made a party to any threatened,
pending, or completed action, suit or proceeding whether civil, criminal,
administrative or investigative, because the individual is or was a director,
officer, employee or agent of the corporation, against liability incurred in
the proceeding if the person acted in good faith and reasonably believed his
and her conduct was in the corporation's best interest or was not opposed to
the corporation's best interest.
Section 145(c) further provides that a corporation shall
indemnify an individual who was successful on the merits or otherwise in any
proceeding to which the director or officer was a party because the
individual was or is a director or officer of the corporation, for reasonable
expenses incurred by the director in connection with the proceeding. Section
145(g) provides that a corporation may purchase and maintain insurance on
behalf of the corporation or who, while a director, officer, employee or
agent of the corporation is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
any liability asserted against or incurred by the individual in that capacity
or arising from the individual status as a director, officer, employee or
agent.
TEMECULA VALLEY BANK, N.A.
Pursuant to the regulations of the OCC, a national bank may only
make or agree to make indemnification payments to an institution-affiliated
party with respect to any administrative proceeding or civil action initiated
by any Federal banking agency that are reasonable and consistent with the
requirements of 12 USC 1828(k) and the implementing regulation thereunder.
In connection with administrative proceedings or civil actions not initiated
by a Federal banking agency, a national bank may indemnify an institution-
affiliated party for damages and expenses, including the advancement of
expenses and legal fees, in accordance with the law of the state in which the
main office of the bank is located, the law of the state in which the bank's
holding company, if any, is incorporated or the relevant provisions of the
Model Business Corporation Act or the Delaware General Corporations Law,
provided such payments are consistent with safe and sound banking practices.
The Bank has selected California as the model for its indemnification
provisions.
The California General Corporation Law (the "CGCL") provides a
detailed statutory framework covering limitation of liability of directors in
certain instances and indemnification of any director, officer or other agent
of a corporation who is made or threatened to be made a party to any legal
proceeding by reason of his or her services on behalf of such corporation.
With respect to limitation of liability, the CGCL permits a
California corporation to adopt a provision in its articles of incorporation
reducing or eliminating the liability of a director to the corporation or its
shareholders for monetary damages for breach of the fiduciary duty of care,
provided that such liability does not arise from certain proscribed conduct
(including intentional misconduct and breach of duty of loyalty). The CGCL
in this regard relates only to actions brought by shareholders on behalf of
the corporation (i.e., "derivative actions") and does not apply to claims
brought by outside parties.
With respect to indemnification, the CGCL provides that to the
extent any officer, director or other agent of a corporation is successful
"on the merits" in defense of any legal proceeding to which such person is a
party or is threatened to be made a party by reason of his or her service on
behalf of such corporation or in defense of any claim, issue, or matter
therein, such agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith, but does not
require indemnification in any other circumstance. The CGCL also provides
that a corporation may indemnify any agent of the corporation, including
officers and directors, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in a third party proceeding
against such person by reason of his or her services on behalf of the
corporation, provided the person acted in good faith and in a manner he or
she reasonably believed to be in the best interests of such corporation. The
CGCL further provides that in derivative suits, a corporation may indemnify
such a person against expenses incurred in such a proceeding, provided such
person acted in good faith and in a manner he or she reasonably believed to
be in the best interests of the corporation and its shareholders.
Indemnification is not available in derivative actions (i) for amounts paid
or expenses incurred in connection with a matter that is settled or otherwise
disposed of without court approval or (ii) with respect to matters for which
the agent shall have been adjudged to be liable to the corporation unless the
court shall determine that such person is entitled to indemnification.
The CGCL permits expense advances incurred in defending any
proceeding against a corporate agent by reason of his or her service on
behalf of the corporation upon the giving of a promise to repay any such sums
in the event it is later determined that such person is not entitled to be
indemnified. Finally, the CGCL provides that the indemnification provided by
the statute is not exclusive of other rights to which those seeking
indemnification may be entitled, by bylaw, agreement or otherwise, to the
extent additional rights are authorized in a corporation's articles of
incorporation. The law further permits a corporation to procure insurance on
behalf of its directors, officers and agents against any liability incurred
by any such individual, even if a corporation would not otherwise have the
power under applicable law to indemnify the director, officer or agent for
such expenses.
The Articles of Association and Bylaws of the Bank implement the
applicable statutory framework by limiting the personal liability of
directors for monetary damages for a breach of a director's fiduciary duty of
care and making indemnification mandatory in those situations where it is
merely permissible under the CGCL.
DIRECTORS' AND OFFICERS' LIABILITY INSURANCE
The Bank presently maintains a policy of directors' and officers'
liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4 Temecula Valley Bank, National Association 1996 Incentive
and Nonqualified Stock Option Plan (Employees), as Amended,
and as Adopted and Assumed by Temecula Valley Bancorp Inc.
5 Opinion of McAndrews, Allen & Matson relating to the
legality of securities being registered, and consent
23a Consent of Vavrinek, Trine, Day & Co., LLP
23b Consent of McAndrews, Allen & Matson is contained in the
opinion filed as Exhibit 5 4
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 Act;
(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;.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if
the total dollar value of securities offered
would not exceed that which was registered) and
any deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospects filed with
the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in the volume and
price represent no more than a 20% change in
the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table
in the effective registration statement.
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) of this
Item 9 do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange 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 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.
(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.
(4) If the registrant is a foreign private issuer, to
file a post-effective amendment to the registration
statement to include any financial statements
required by Section 210.3-19 of this chapter at the
start of any delayed offering or throughout a
continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of
the Act need not be furnished, PROVIDED that the
registrant includes in the prospectus to this
paragraph (a)(4) and other information necessary to
ensure that all other information in the prospectus
is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a 5
post-effective amendment need not be filed to include
financial statements and information required by
Section 10(a)(3) of the Act or Section 210.3-19 of
this chapter if such financial statements and
information are contained in periodic reports file
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 Form F-3.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Act, 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.
Insofar as indemnification for liabilities arising under the 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 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 ON FOLLOWING PAGE]
SIGNATURES
Pursuant to the requirements of the Act, Temecula Valley Bancorp
Inc. 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 Temecula, State of California on May 21, 2002.
TEMECULA VALLEY BANCORP INC.
By: /S/ STEPHEN H. WACKNITZ
STEPHEN H. WACKNITZ
President and Chief Executive
Officer
By: /S/ DONALD A. PITCHER
Donald A. Pitcher
Chief Financial Officer
Pursuant to the requirements of the Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
Name Title Date
/S/ STEVEN W. AICHLE, D.V.M.
Steven W. Aichle, D.V.M. Director May 21, 2002
/S/ ROBERT P. BECK, D.D.S.
Robert P. Beck, D.D.S. Director May 21, 2002
/S/ NEIL M. CLEVELAND
Neil M. Cleveland Director May 21, 2002
/S/ LUTHER J. MOHR
Luther J. Mohr Director May 21, 2002
/S/ STEPHEN H. WACKNITZ
Stephen H. Wacknitz Chairman of the Board May 21, 2002
/S/ RICHARD W. WRIGHT
Richard W. Wright Director May 21, 2002
EXHIBIT INDEX
Exhibit Description
4 Temecula Valley Bank, National Association 1996 Incentive
and Nonqualified Stock Option Plan (Employees), as Amended,
and as Adopted and Assumed by Temecula Valley Bancorp Inc.
5 Opinion of McAndrews, Allen & Matson relating to the
legality of securities being registered, and consent
23a Consent of Vavrinek, Trine, Day & Co., LLP
23b Consent of McAndrews, Allen & Matson*
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* Contained in the opinion filed as Exhibit 5
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