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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HERITAGE COMMERCE CORP
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(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0469558
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
150 ALMADEN BOULEVARD, SAN JOSE, CA 95113
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(Address of principal executive offices)
HERITAGE COMMERCE CORP AMENDED AND RESTATED 1994 TANDEM STOCK OPTION PLAN
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(Full title of plans)
JOHN E. ROSSELL
HERITAGE COMMERCE CORP
150 ALMADEN BOULEVARD
SAN JOSE, CA 95113
(408) 947-6900
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(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------- -------------- ------------------------- ---------------------------- ------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share(1) price(1) registration fee
- --------------------------- -------------- ------------------------- ---------------------------- ------------------
<S> <C> <C> <C> <C>
Heritage Commerce Corp
Amended and Restated 1994
Tandem Stock Option Plan 162,576 $14.25 $2,316,708 $611.61
(common stock and related
options)
- --------------------------- -------------- ------------------------- ---------------------------- ------------------
</TABLE>
(1) In accordance with Rule 457(h), based on the average of the bid and
ask price for Heritage Commerce Corp common stock as of January 19, 2000.
This registration statement shall hereafter become effective in
accordance with Rule 462 promulgated under the Securities Act of 1933, as
amended.
Pursuant to General Instruction E of Form S-8, the contents of
Registration Statement No. 333-59277 (filed July 17, 1998) are incorporated by
reference.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Heritage Commerce Corp (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's annual report on Form 10-K for the year ended December
31, 1998, as filed with the Securities and Exchange Commission (the
"Commission") on March 29, 1999;
(b) The Company's quarterly report on Form 10-Q for the period ended March
31, 1999, as filed with the Commission on May 14, 1999;
(c) The Company's quarterly report on Form 10-Q for the period ended June
30, 1999, as filed with the Commission on August 13, 1999;
(d) The Company's quarterly report on Form 10-Q for the period ended
September 30, 1999, as filed with the Commission on November 15, 1999;
(e) The Company's Current Reports on Form 8-K dated January 6, 1999,
January 29, 1999, April 27, 1999, July 21, 1999, September 21, 1999,
October 25, 1999, January 5, 2000, and January 21, 2000, filed by the
Company with the Commission pursuant to Section 13 of the Securities
Exchange Act of 1934 (the "Exchange Act").
(f) The description of the Company's common stock contained in the
Company's Registration Statement on Form 8-A, as filed with the
Commission on March 5, 1998.
(g) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this registration statement which indicates that all securities
offered hereby have been sold or which deregisters all securities 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 of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 317 of the California General Corporations Law (the "CGCL")
authorizes a court to award, or a corporation's board of directors to grant,
indemnity to directors and officers who are parties or are
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threatened to be made parties to any proceeding (with certain exceptions) by
reason of the fact that the person is or was an agent of the corporation,
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with the proceeding if that person acted in
good faith and in a manner the person reasonably believed to be in the best
interests of the corporation. Section 204 of the CGCL provides that this
limitation on liability has no effect on a director's liability (i) for acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of law, (ii) for acts or 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 a 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 of the CGCL (concerning
contracts or transactions between the corporation and a director) or (vii) under
Section 316 of the CGCL (directors' liability for improper dividends, loans and
guarantees).
In accordance with Section 317, the Company's Articles of Incorporation
(the "Articles"), limit the liability of a directors, officers and employees to
the Company or its shareholders for monetary damages to the fullest extent
permissible under California law, and in excess of that authorized under Section
317. The Articles and the Company's By-Laws further provide for indemnification
of corporate agents to the maximum extent permitted by the CGCL.
The Company also maintains insurance policies which insure its officers and
directors against certain liabilities in an annual aggregate maximum amount of
$10 million.
The foregoing summaries are necessarily subject to the complete text of the
statute, the Articles, the By-Laws referred to above and are qualified in their
entirety by reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit Index
beginning on page E-1 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
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;
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(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 registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed 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 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.
(b) Filings incorporating subsequent Exchange Act documents by reference.
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
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.
(h) Request for acceleration of effective date of filing of registration
statement on Form S-8.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized in the
City of San Jose, State of California, on November 18, 1999.
HERITAGE COMMERCE CORP
(Registrant)
By /s/ John E. Rossell
----------------------------------
John E. Rossell
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 on behalf
of the registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John E. Rossell President, Chief Executive November 18, 1999
- ------------------------------------ Officer and Director
John E. Rossell (Principal Executive Officer)
/s/ Lawrence D. McGovern Executive Vice President and November 18, 1999
- ------------------------------------ Chief Financial Officer
Lawrence D. McGovern (Principal Financial and
Accounting Officer)
/s/ Frank Bisceglia Director November 18, 1999
- ------------------------------------
Frank Bisceglia
Director November 18, 1999
- ------------------------------------
James Blair
/s/ Arthur Carmichael, Jr. Director November 18, 1999
- ------------------------------------
Arthur Carmichael, Jr.
/s/ Richard L. Conniff Director November 18, 1999
- ------------------------------------
Richard L. Conniff
/s/ William Del Biaggio, Jr. Director November 18, 1999
- ------------------------------------
William Del Biaggio, Jr.
/s/ Anneke Dury Director November 18, 1999
- ------------------------------------
Anneke Dury
/s/ Tracey Enfantino Director November 18, 1999
- ------------------------------------
Tracey Enfantino
/s/ Glenn George Director November 18, 1999
- --------------------------------------------
Glenn George
</TABLE>
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Signatures (Continued)
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert Gionfriddo Director November 18, 1999
- ------------------------------------
Robert Gionfriddo
/s/ P. Michael Hunt Director November 18, 1999
- ------------------------------------
P. Michael Hunt
/s/ John Larsen Director November 18, 1999
- ------------------------------------
John Larsen
/s/ Lon Normandin Director November 18, 1999
- ------------------------------------
Lon Normandin
/s/ Jack Peckham Director November 18, 1999
- ------------------------------------
Jack Peckham
/s/ Robert Peters Director November 18, 1999
- ------------------------------------
Robert Peters
/s / Humphrey Polanen Director November 18, 1999
- ------------------------------------
Humphrey Polanen
/s / Kirk Rossman Director November 18, 1999
- ------------------------------------
Kirk Rossman
/s/ Brad L. Smith Director November 18, 1999
- ------------------------------------
Brad L. Smith
</TABLE>
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POWER OF ATTORNEY
Know all men by these presents that each of the undersigned does hereby
make, constitute and appoint John E. Rossell and Lawrence D. McGovern, or either
of them, as the true and lawful attorney-in-fact of the undersigned, with full
power of substitution and revocation, for and in the name, place and stead of
the undersigned, to execute and deliver the Registration Statement on Form S-8,
and any and all amendments thereto, including without limitation pre-effective
and post-effective amendments thereto; such Form S-8 and each such amendment to
be in such form and to contain such terms and provisions as said attorney or
substitute shall deem necessary or desirable; giving and granting unto said
attorney, or to such person as in any case may be appointed pursuant to the
power of substitution herein given, full power and authority to do and perform
any and every act and thing whatsoever requisite, necessary or, in the opinion
of said attorney or substitute, able to be done in such matter as the
undersigned might or could do if personally present, hereby ratifying and
confirming all that said attorney or such substitute shall lawfully do or cause
to be done by virtue hereof.
In witness whereof, each of the undersigned has duly executed this Power of
Attorney.
<TABLE>
<CAPTION>
<S> <C>
/s/ Frank Bisceglia November 18, 1999
--------------------------------
Frank Bisceglia
November 18, 1999
--------------------------------
James Blair
/s/ Arthur Carmichael, Jr. November 18, 1999
--------------------------------
Arthur Carmichael, Jr.
/s/ Richard L. Conniff November 18, 1999
--------------------------------
Richard L. Conniff
/s/ William Del Biaggio, Jr. November 18, 1999
--------------------------------
William Del Biaggio, Jr.
/s/ Anneke Dury November 18, 1999
--------------------------------
Anneke Dury
/s/ Tracey Enfantino November 18, 1999
--------------------------------
Tracey Enfantino
/s/ Glenn George November 18, 1999
--------------------------------
Glenn George
/s/ P. Michael Hunt November 18, 1999
--------------------------------
P. Michael Hunt
/s/ Robert Gionfriddo November 18, 1999
--------------------------------
Robert Gionfriddo
/s/ John Larsen November 18, 1999
--------------------------------
John Larsen
/s/ Lon Normandin November 18, 1999
--------------------------------
Lon Normandin
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
/s/ Jack Peckham November 18, 1999
--------------------------------
Jack Peckham
/s/ Robert Peters November 18, 1999
--------------------------------
Robert Peters
/s/ Humphrey Polanen November 18, 1999
--------------------------------
Humphrey Polanen
/s/ Kirk Rossman November 18, 1999
--------------------------------
Kirk Rossman
/s/ Brad L. Smith November 18, 1999
--------------------------------
Brad L. Smith
</TABLE>
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EXHIBITS LIST
<TABLE>
<CAPTION>
Sequentially
Exhibit Description Numbered Page
------- ----------- -------------
<S> <C>
4 Amendment to Heritage Commerce Corp Amended and Restated 1994
Tandem Stock Option Plan
5 Opinion of Counsel as to the legality of securities being
registered
24.1 Consent of Counsel (included in Exhibit 5)
24.2 Consent of Independent Auditors
25 Power of Attorney (included in signature page of this
registration statement)
</TABLE>
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Exhibit 4
AMENDMENT TO
HERITAGE COMMERCE CORP
AMENDED AND RESTATED
1994 TANDEM STOCK OPTION PLAN
Section 5 of the Heritage Commerce Corp Amended and Restated 1994 Tandem
Stock Option Plan (the "Plan") is hereby amended in its entirety as follows:
5. STOCK SUBJECT TO THE PLAN
Subject to adjustments as provided in Section 12, hereof, the stock to be
offered under the Plan shall be shares of the Company's authorized but unissued
common stock (hereinafter called "stock") and the aggregate amount of stock to
be delivered upon exercise of all options granted under this Plan shall not
exceed 1,819,922 shares. If any option shall be canceled, surrendered or expire
for any reason without having been exercised in full, the underlying shares
subject thereto shall again be available for purposes of this Plan.
Except as set forth in this amendment, the Plan remains in full force and
effect.
HERITAGE BANK OF COMMERCE
By /s/ John E. Rossell III
----------------------------------
By /s/ Brad L. Smith
----------------------------------
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Exhibit 5
[Letterhead of McCutchen, Doyle, Brown and Enersen LLP]
January 10, 2000 (415) 393-2000
Heritage Commerce Corp
150 Almaden Boulevard
San Jose, CA 95113
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel for Heritage Commerce Corp, a California
corporation, (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to the registration of 162,576 shares of the Company's common stock to be issued
under the Heritage Commerce Corp 1994 Tandem Stock Option Plan.
We are of the opinion that the securities to be issued by the Company
pursuant to the Registration Statement have been duly authorized and, when sold
pursuant to the terms described in the Registration Statement, will be duly and
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
McCUTCHEN, DOYLE, BROWN & ENERSEN, LLP
By /s/ McCUTCHEN, DOYLE, BROWN & ENERSEN, LLP
A Member of the Firm
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Exhibit 24.2
(Deloitte and Touche Letterhead)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Heritage Commerce Corp on Form S-8 of our report dated January 20, 1999
(February 5, 1999 as to the stock split information), appearing in the Annual
Report on Form 10-K of Heritage Commerce Corp for the year ended December 31,
1998.
/s/ Deloitte and Touche LLP
January 19, 2000
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