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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BYL BANCORP
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(Exact name of registrant as specified in its charter)
California 33-0755794
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
18206 Imperial Highway
Yorba Linda, California 92886
(Address of principal executive office) (Zip code)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective securities and is to become
upon filing pursuant to General effective simultaneously with
Instruction A(c)(1) please check the effectiveness of a concurrent
the following box. / / registration statement under the
Securities Act of 1933 pursuant to
General Instruction A(c)(2) please
check the following. / /
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
None
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Common Stock, no par value
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ITEM 1. DESCRIPTION OF REGISTRANT'S SHARES TO BE REGISTERED
The Company is authorized by its Articles of Incorporation to issue
50,000,000 shares of Company Common Stock, without par value, and 25,000,000
shares of Company Preferred Stock, without par value. As of the date
hereof, 150 shares of Company Common Stock were issued and outstanding, and
no shares of preferred stock are issued and outstanding. Holders of Company
Common Stock will be entitled to one vote, in person or by proxy, for each
share of Company Common Stock held of record in the shareholder's name on the
books of the Company as of the record date on any matter submitted to the
vote of the shareholders, except that in connection with the election of
directors, and until the Company is considered to be a "listed corporation"
as provided in Corporations Code Section 310.5, which is intended to occur
upon the completion of the formation of the Company as a bank holding company
for Bank of Yorba Linda (the "Reorganization"), the shares may be voted
cumulatively. However, the Company's Articles of Incorporation provide there
will be no cumulative voting for the election of directors if and when the
Company becomes a "listed corporation" (i.e., outstanding shares listed on
the New York or American Stock Exchange or outstanding securities designated
as qualified for trading as a national market security on the National
Association of Securities Dealers Automatic Quotation System and has at least
800 holders of its equity securities; the Bank currently has approximately
800 holders of its securities). The Company intends to become a "listed
corporation" at the time the Reorganization to form the Company as a bank
holding company is consummated, which is intended to be during the fourth
quarter of 1997.
The Company's Articles of Incorporation provide that the Board of Directors
will be divided into two classes, with any class having a term of two years, if
and when the Company becomes a "listed corporation" (as defined in the previous
paragraph). Upon the Company becoming a "listed corporation," the Board of
Directors of the Company will be divided into two classes, each of which shall
contain approximately one-half of the whole number of the members of the Board.
The members of each class shall be elected for a term of two years, with the
terms of office of all members of one class expiring each year so that
approximately one-half of the total number of directors are elected each year.
The Company's Articles of Incorporation also provide that any vacancy occurring
in the Board, including a vacancy created by an increase in the number of
directors, shall be filled by a vote of two-thirds of the directors then in
office and any director so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of the class to which the
director has been chosen expires. The classified Board is intended to provide
for continuity of the Board of Directors and to make it more difficult and time
consuming for a stockholder group to fully use its voting power to gain control
of the Board of Directors without consent of the incumbent Board of Directors of
the Company.
The Articles of Incorporation of the Company also require the approval of
the holders of at least 66-2/3% of the Company's outstanding shares of voting
stock to approve certain "Business Combinations" (as defined therein) involving
a "Related Person" (as defined therein) except in cases where the proposed
transaction has been approved in advance by a majority of those members of the
Company's Board of Directors who are unaffiliated with the Related Person and
were directors prior to the time when the Related Person became a Related
Person. The term "Related Person" is defined to include any individual,
corporation, partnership or other entity (other than the Bank or its subsidiary)
which owns beneficially or controls, directly or indirectly, 10% or more of the
outstanding shares of voting stock of the Company or an affiliate of such person
or entity. This proposed provision of the Articles of Incorporation applies to
any "Business Combination," which is defined to include: (i) any merger or
consolidation of the Company with or into any Related Person; (ii) any sale,
lease, exchange, mortgage, transfer, or other disposition of 25% or more of the
assets of the Company or combined assets of the Company and its subsidiaries to
a Related Person; (iii) any merger or consolidation of a Related Person with or
into the Company or a subsidiary of the Company; (iv) any sale, lease, exchange,
transfer, or other disposition of 25% or more of the assets of a Related Person
to the
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Company or a subsidiary of the Company; (v) the issuance of any securities of
the Company or a subsidiary of the Company to a Related Person; (vi) the
acquisition by the Company or a subsidiary of the Company of any securities of a
Related Person; (vii) any reclassification of common stock of the Company or any
recapitalization involving the common stock of the Company; or (viii) any
agreement or other arrangement providing for any of the foregoing.
Under California law, absent this proposed provision, business
combinations, including mergers, consolidations and sales of substantially all
of the assets of a corporation must, subject to certain exceptions, be approved
by the vote of the holders of a majority of the outstanding shares of common
stock of the Company and any other affected class of stock. The increased
stockholder vote required to approve a business combination may have the effect
of foreclosing mergers and other business combinations which a majority of
stockholders deem desirable and place the power to prevent such a merger or
combination in the hands of a minority of stockholders.
Each share of Company Stock has the same rights, privileges and preferences
as every other share and will share equally in the Company's net assets upon
liquidation of dissolution. Company Common Stock will have no preemptive,
conversion or redemption rights or sinking fund provisions and all of the issued
and outstanding shares of Company Common Stock, when issued, will be fully paid
and nonassessable. The Company's Articles of Incorporation also provide that
amendments to the Company's Articles of Incorporation must be approved by a
majority vote of its Board of Directors and also by a majority of the
outstanding shares of its voting stock, provided, however, that an affirmative
vote of at least 66-2/3% of the outstanding voting stock entitled to vote (after
giving effect to the provision limiting voting rights) is required to amend or
repeal certain provisions of the Articles of Incorporation, including the
provision limiting voting rights, the provisions relating to approval of certain
business combinations, the number and classification of directors, director and
officer indemnification by the Company and amendment of the Company's Bylaws and
Articles of Incorporation. The Company's Bylaws may be amended by its Board of
Directors, or by a vote of 66-2/3% of the total votes eligible to be voted at a
duly constituted meeting of stockholders.
Following consummation of the Reorganization, the transfer agent and
registrar for the Company Common Stock will be U.S. Stock Transfer Corporation.
ASSESSABILITY
Company Common Stock is not assessable. Under applicable regulatory
policies, however, holding companies of federally insured financial institutions
such as the Bank are required to serve as a "source of strength" for their
insured subsidiaries. As a practical matter, this may result in the Company
being required by regulatory order or directive to contribute additional capital
to the Bank, to guarantee certain Bank obligations or to take other actions
requiring the investment of Company capital or resources for the Bank's benefit.
CLASSIFICATION OF BOARD OF DIRECTORS
The Company's Articles of Incorporation and Bylaws provide for its Board
of Directors to be divided into two (2) classes with each class having a term of
two years, if and when the Company becomes a "listed corporation", which is
intended to occur upon consummation of the Reorganization.
NUMBER OF DIRECTORS
Although the Corporations Code does not require the Company to maintain any
specific range of number of directors, the number of directors of the Company
may not be less than a stated minimum
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nor more than a stated maximum (which in no case shall be greater than two times
the stated minimum minus one) with the exact number of directors to be fixed,
within the limits specified. The Company Bylaws currently provide that the
number of directors on the Company Board of Directors may not be fewer than
five nor more than nine, and the current number of members on the Company's
Board of Directors has been fixed at six.
The ability of the Company to pay cash dividends is limited by the
provisions of Section 500 of the California Corporations Code, which prohibits
the payment of dividends unless (i) the retained earnings of the corporation
immediately prior to the distribution exceeds the amount of the distribution;
(ii) the assets of the corporation exceed 1 1/4 times its liabilities; or (iii)
the current assets of the corporation exceed its current liabilities, but if the
average pre-tax earnings of the corporation before interest expense for the two
years preceding the distribution was less than the average interest expense of
the corporation for those years, the current assets of the corporation must
exceed 1 1/4 times its current liabilities.
DISSENTERS' RIGHTS. Pursuant to the General Corporation Law of California,
holders of Company Common Stock would be entitled, subject to the provisions of
Chapter 13, to dissenters' rights in connection with any transaction which
constitutes a reorganization (as defined in Section 181 of the California
Corporations Code).
RESTRICTIONS ON ACQUISITION OF THE COMPANY
The following discussion is a summary of certain provisions of California
and Federal law and regulations and California corporate law, as well as the
Articles of Incorporation and Bylaws of the Company, relating to stock ownership
and transfers, the Board of Directors and business combinations, all of which
may be deemed to have "anti-takeover" effects. The description of these
provisions is necessarily general and reference should be made to the actual law
and regulations and to the Articles of Incorporation and Bylaws of the Company.
CALIFORNIA AND FEDERAL BANKING LAW
The Federal Change in Bank Control Act of 1978 prohibits a person or group
of persons "acting in concert" from acquiring "control" of a bank holding
company unless the Federal Reserve Bank (the "FRB") has been given 60 days'
prior written notice of such proposed acquisition and within that time period
the FRB has not issued a notice disapproving the proposed acquisition or
extending for up to another 30 days the period during which such a disapproval
may be issued. An acquisition may be made prior to the expiration of the
disapproval period if the FRB issues written notice of its intent not to
disapprove the action. Under a rebuttable presumption established by the FRB,
the acquisition of more than 10% of a class of voting stock of a bank with a
class of securities registered under Section 12 of the Securities Exchange Act
of 1934, as amended (such as the Common Stock), would, under the circumstances
set forth in the presumption, constitute the acquisition of control.
Under the California Financial Code, no person shall, directly or
indirectly, acquire control of a California licensed bank or a bank holding
company unless the Superintendent has approved such acquisition of control. A
person would be deemed to have acquired control of the Company under this state
law if such person, directly or indirectly, has the power (i) to vote 25% or
more of the voting power of the Company or (ii) to direct or cause the direction
of the management and policies of the Company. For purposes of this law, a
person who directly or indirectly owns or controls 10% or more of the Common
Stock would be presumed to control the Company.
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In addition, any "company" would be required to obtain the approval of the
FRB under the Holding Company Act of 1956, as amended (the "BHC Act"), before
acquiring 25% (5% in the case of an acquiror that is, or is deemed to be, a bank
holding company) or more of the outstanding Common Stock of, or such lesser
number of shares as constitute control over, the Company.
ANTI-TAKEOVER PROVISIONS IN COMPANY'S ARTICLES OF INCORPORATION
The Company's Articles of Incorporation contain certain provisions that
deal with matters of corporate governance and certain rights of shareholders.
The following discussion is a general summary of the Company's Articles of
Incorporation and regulatory provisions relating to stock ownership and
transfer, the Board of Directors and business combinations, which might be
deemed to have a potential "anti-takeover" effect. These proposed provisions
may have the effect of discouraging a future takeover attempt which is not
approved by the Board of Directors but which individual Company stockholders may
deem to be in their best interest or in which stockholders may receive a
substantial premium for their shares over then current market prices. As a
result, shareholders who might desire to participate in such a transaction may
not have an opportunity to do so. Such provisions will also render the removal
of incumbent Board of Directors or management of the Company more difficult.
Any provision requiring more than a majority vote by the Company's stockholders
may only be effective for a two year period from its effective date, unless
renewed by the Board of Directors and the stockholders. The following
description of certain of the amendments to the Articles of Incorporation of the
Company is necessarily general, and reference should be made in each case to
such Articles of Incorporation, which is contained as an exhibit to the
Company's registration statement.
BOARD OF DIRECTORS. When the Company becomes a "listed corporation", as
defined above, the Board of Directors of the Company will be divided into two
classes, each of which shall contain approximately one-half of the whole number
of the members of the Board. The members of each class shall be elected for a
term of two years, with the terms of office of all members of one class expiring
each year so that approximately one-half of the total number of directors are
elected each year. The classified Board is intended to provide for continuity
of the Board of Directors and to make it more difficult and time consuming for a
stockholder group to fully use its voting power to gain control of the Board of
Directors without consent of the incumbent Board of Directors of the Company.
CUMULATIVE VOTING AND SPECIAL MEETINGS. if the Company becomes a "listed
corporation," the Articles of Incorporation do not provide for cumulative voting
for any purpose.
AUTHORIZED SHARES. The Articles of Incorporation authorize the issuance of
50,000,000 shares of Common Stock and 25,000,000 shares of preferred stock. The
shares of Common Stock and preferred stock were authorized in an amount greater
than that to be issued in the Reorganization to provide the Company's Board of
Directors with as much flexibility as possible to effect, among other
transactions, financings, acquisitions, stock dividends, stock splits and the
exercise of employee stock options. However, these additional authorized shares
may also be used by the Board of Directors consistent with its fiduciary duty to
deter future attempts to gain control of the Company. The Board of Directors
also has sole authority to determine the terms of any one or more series of
preferred stock, including voting rights, conversion rates, and liquidation
preferences. As a result of the ability to fix voting rights for a series of
preferred stock, the Board has the power, to the extent consistent with its
fiduciary duties to issue a series of preferred stock to persons friendly to
management in order to attempt to block a tender offer, merger or other
transaction by which a third party seeks control of the Company, and thereby
assist members of management to retain their positions. The Company's Board has
no present plans for the issuance of additional shares, other than the issuance
of shares of Common Stock upon exercise of stock options.
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STOCKHOLDER VOTE REQUIRED TO APPROVE BUSINESS COMBINATION WITH PRINCIPAL
STOCKHOLDERS. The Articles of Incorporation require the approval of the holders
of at least 66-2/3% of the Company's outstanding shares of voting stock to
approve certain "Business Combinations" (as defined in therein) involving a
"Related Person" (as defined therein) except in cases where the proposed
transaction has been approved in advance by a majority of those members of the
Company's Board of Directors who are unaffiliated with the Related Person and
were directors prior to the time when the Related Person became a Related
Person.
Under California law, absent this proposed provision, business
combinations, including mergers, consolidations and sales of substantially all
of the assets of a corporation must, subject to certain exceptions, be approved
by the vote of the holders of a majority of the outstanding shares of common
stock of the Company and any other affected class of stock. The increased
stockholder vote required to approve a business combination may have the effect
of foreclosing mergers and other business combinations which a majority of
stockholders deem desirable and place the power to prevent such a merger or
combination in the hands of a minority of stockholders.
AMENDMENT OF ARTICLES OF INCORPORATION AND BYLAWS. The Company's Articles
of Incorporation must be approved by a majority vote of its Board of Directors
and also by a majority of the outstanding shares of its voting stock, provided,
however, that an affirmative vote of at least 66-2/3% of the outstanding voting
stock entitled to vote (after giving effect to the provision limiting voting
rights) is required to amend or repeal certain provisions of the Articles of
Incorporation, including the provision limiting voting rights, the provisions
relating to approval of certain business combinations, the number and
classification of directors, director and officer indemnification by the Company
and amendment of the Company's Bylaws and Articles of Incorporation. The
Company's Bylaws may be amended by its Board of Directors, or by a vote of
66-2/3% of the total votes eligible to be voted at a duly constituted meeting of
stockholders.
STOCKHOLDER NOMINATIONS AND PROPOSALS. The Bylaws of the Company require a
stockholder who intends to nominate a candidate for election to the Board of
Directors to give not less than 10 days' advance notice to the Secretary of the
Company. The Articles of Incorporation provide that a stockholder who desires
to raise new business to provide certain information to the Company concerning
the nature of the new business, the stockholder and the stockholder's interest
in the business matter. Similarly, a stockholder wishing to nominate any person
for election as a director must provide the Company with certain information
concerning the nominee and the proposing stockholder.
PURPOSE AND TAKEOVER DEFENSIVE EFFECTS OF THE COMPANY'S ARTICLES OF
INCORPORATION. The Board of Directors of the Company believes that the
provisions described above are prudent and will reduce the Company's
vulnerability to takeover attempts and certain other transactions which have not
been negotiated with and approved by its Board of Directors. The Board of
Directors believes these provisions are in the best interest of the Company and
its stockholders. In the judgment of the Board of Directors, the Company's
Board will be in the best position to determine the true value of the Company
and to negotiate more effectively for what may be in the best interest of its
stockholders. Accordingly, the Board of Directors believes that it is in the
best interest of the Company and its stockholders to encourage potential
acquirors to negotiate directly with the Board of Directors of the Company and
that these provisions will encourage such negotiations and discourage hostile
takeover attempts. It is also the view of the Board of Directors that these
provisions should not discourage persons from proposing a merger or other
transaction at a price reflective of the true value of the Company and which is
in the best interest of all stockholders.
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Attempts to acquire control of financial institutions have recently become
increasingly common. Takeover attempts which have not been negotiated with and
approved by the Board of Directors present to stockholders the risks of a
takeover on terms which may be less favorable than might otherwise be available.
A transaction which is negotiated and approved by the Board of Directors, on the
other hand, can be carefully planned and undertaken at an opportune time in
order to obtain maximum value of the Company and its stockholders, with due
consideration given to matters such as the management and business of the
acquiring corporation and maximum strategic development of the Company's assets.
An unsolicited takeover proposal can seriously disrupt the business and
management of a corporation and cause it to incur great expense. Although a
tender offer or other takeover attempt may be made at a price substantially
above the current market prices, such offers are sometimes made for less than
all of the outstanding shares of a target company. As a result, stockholders
may be presented with the alternative of partially liquidating their investment
at a time that may be disadvantageous, or retaining their investment in an
enterprise which is under different management and whose objectives may not be
similar to those of the remaining stockholders. The concentration of control,
which could result from a tender offer or other takeover attempt, could also
deprive the Company's remaining stockholders of benefits of certain protective
provisions of the Exchange Act, if the number of beneficial owners became less
than the 300 thereby allowing for Exchange Act deregistration.
Despite the belief of the Company as to the benefits to stockholders of
these provisions of the Company's Articles of Incorporation, these provisions
may also have the effect of discouraging a future takeover attempt which would
not be approved by the Company's Board, but pursuant to which stockholders may
receive a substantial premium for their shares over then current market prices.
As a result, stockholders who might desire to participate in such a transaction
may not have any opportunity to do so. Such provisions will also render the
removal of the Company's Board of Directors and of management more difficult.
The Board of Directors of the Company, however, has concluded that the potential
benefits outweigh the possible disadvantages.
Pursuant to applicable law, at any annual or special meeting of its
stockholders, the Company may adopt additional charter provisions regarding the
acquisition of its equity securities that would be permitted for a California
business corporation. The Company does not presently intend to propose the
adoption of further restrictions on the acquisition of the Company's equity
securities.
The cumulative effect of the restriction on acquisition of the Company
contained in the Articles of Incorporation and Bylaws, federal law and
California law may be to discourage potential takeover attempts and perpetuate
incumbent management, even though certain stockholders of the Company may deem a
potential acquisition to be in their best interest, or deem existing management
not to be acting in their best interests.
ITEM 2. EXHIBITS
1. Articles of Incorporation of the Registrant (previously filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-4 and
incorporated hereby by reference).
2. Amendment to Articles of Incorporation of the Registrant (previously
filed as Exhibit 3.2 to the Company's Registration Statement on Form
S-4 and incorporated hereby by reference).
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3. Bylaws of the Registrant (previously filed as Exhibit 3.3 to the
Company's Registration Statement on Form S-4 and incorporated hereby
by reference).
4. Specimen certificate evidencing shares of Registrant's Common Stock
(previously filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-4 and incorporated herein by reference).
5. Stockholder Agreement Covering Issuance and Compulsory Repurchase of
Organizing Shares of Registrant (previously filed as Annex II of
Proxy Statement/Prospectus contained in the Company's Registration
Statement on Form S-4 and incorporated herein by reference).
6. BYL Bancorp 1997 Stock Option Plan and form Stock Option Agreement
(previously filed as Exhibit 10.2 to the Company's Registration
Statement on Form S-4 and incorporated herein by reference).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereto duly authorized.
BYL BANCORP
Date: October 23, 1997
By: /s/ Robert Ucciferri
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Robert Ucciferri
President and Chief Executive
Officer
INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT
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1 Articles of Incorporation of the Registrant
(previously filed as Exhibit 3.1 to the
Company's Registration Statement on Form S-4
and incorporated hereby by reference)
2 Amendment to Articles of Incorporation of the
Registrant (previously filed as Exhibit 3.2
to the Company's Registration Statement on
Form S-4 and incorporated hereby by
reference)
3 Bylaws of the Registrant (previously filed as
Exhibit 3.3 to the Company's Registration
Statement on Form S-4 and incorporated hereby
by reference)
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4 Specimen certificate evidencing shares of
Registrant's Common Stock (previously filed
as Exhibit 4.1 to the Company's Registration
Statement on Form S-4 and incorporated herein
by reference).
5 Stockholder Agreement Covering Issuance and
Compulsory Repurchase of Organizing Shares of
Registrant (previously filed as Annex II of
Proxy Statement/Prospectus contained in the
Company's Registration Statement on Form S-4
and incorporated herein by reference).
6 BYL Bancorp 1997 Stock Option Plan and form
Stock Option Agreement (previously filed as
Exhibit 10.2 to the Company's Registration
Statement on Form S-4 and incorporated herein
by reference).
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