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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VALLEY NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0825336
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1234 East Main Street, El Cajon, California 92021
(Address of Principal Executive Offices) (Zip Code)
Valley National Corporation ESOP Trust
(Full title of the plan)
Mr. William V. Ehlen, President
Valley National Corporation
1234 East Main Street
El Cajon, CA 92021
(Name and address of agent for service)
(619) 593-3330
(Telephone Number, including area code,
of agent for service)
(619) 593-3344
(Fax number of agent for service)
The Commission is requested to send copies of all
notices and other communications to:
James K. Sterrett, Esq.
Dostart Clapp Sterrett & Coveney, LLP
4370 La Jolla Village Drive, Suite 970
San Diego, CA 92122
Telephone: (619) 623-4200
Fax: (619) 623-4299
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum Amount of
Title of Securities to be Amount to be offering price aggregate registration
Registered Registered(1) per share(2) offering price(2) fee(2)
<S> <C> <C> <C> <C>
Common stock, par
value $0.0001 per share 10,000 $18.375 $183,750 $51.08
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which may become issuable under the Valley National Corporation ESOP Trust
by reason of any stock dividend, stock split, recapitalization or any other
similar transaction effected without receipt of consideration which results in
an increase in the number of outstanding shares of Common Stock.
(2) Estimated solely for purpose of calculating the registration fee pursuant to
Rule 457(h) on the basis of the average of the high and low prices of the Common
Stock on the Nasdaq National Market System as of a date within five business
days preceding the date of filing of this Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating officers and employees as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). The documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II below, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
Valley National Corporation, a Delaware corporation (the
"Company"), hereby incorporates by reference into this Registration Statement
on Form S-8 (the "Registration Statement") the following documents which have
heretofore been filed by the Company with the Securities and Exchange
Commission (the "Commission"):
(a) The Valle de Oro Bank, N.A.'s Annual Report on Form 10-KSB for
the year ended December 31, 1998 as filed with the Commission on March 31,
1999.
(b) The Company's Proxy Statement-Prospectus filed as part of the
Company's Registration Statement on Form S-4 (Reg. No. 333-67661), as filed
with the Commission on November 20, 1998, Amendment No. 1 to the Registration
Statement filed with the Commission on January 26, 1999, and Amendment No. 2
to the Registration Statement filed with the Commission on February 18, 1999.
(c) All documents subsequently filed by the Company or Valley
National Corporation ESOP Trust 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statements contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to
the extent that a statement contained herein (or in any other subsequently
filed document which is also incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed to constitute a part of this Registration Statement except as so
modified or superseded.
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ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Certain legal matters with respect to the validity of the shares of
Company Common Stock offered hereby will be passed upon by Dostart Clapp
Sterrett & Coveney, LLP, San Diego, California.
ITEM 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware: (i) gives Delaware corporations broad powers to indemnify their
present and former directors and officers and those of affiliated
corporations against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with threatened, pending or completed actions, suits or proceedings to which
they are parties or are threatened to be made parties by reason of being or
having been such directors or officers, subject to specified conditions and
exclusions; (ii) gives a director or officer who successfully defends an
action the right to be so indemnified; and (iii) permits a corporation to
buy directors' and officers' liability insurance. Such indemnification is
not exclusive of any other rights to which those indemnified may be entitled
under any bylaw, agreement, vote of stockholders or otherwise.
Article VI of Valley National Corporation's Bylaws requires Valley
National Corporation to indemnify its directors and officers to the maximum
extent permitted by the General Corporation Law of the State of Delaware.
Article X of Valley National Corporation's Certificate of Incorporation also
provides that Valley National Corporation shall indemnify and advance
expenses to its directors, officers, employees or agents to the fullest
extent permitted by applicable law.
Valley National Corporation intends to enter into individual
agreements with each of its directors and executive officers pursuant to
which Valley National Corporation will agree to indemnify each of its
directors and executive officers to the fullest extent provided by applicable
law and the Bylaws of Valley National Corporation as currently in effect.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling Valley National Corporation pursuant to the foregoing provisions,
Valley National Corporation has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in such Act and therefore unenforceable.
Valley National Corporation intends to purchase insurance policies
containing customary terms and conditions for the purpose of insuring its
directors and officers against certain losses incurred by them as a result of
claims based upon their actions or statements (including omissions to act or
make statements) as directors and officers which may cover liabilities under
the Securities Act.
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Valley National Corporation also maintains an insurance policy
insuring those individuals who are fiduciaries, as defined by the Employee
Retirement Income Security Act of 1974, under certain employee benefit plans
of Valley National Corporation and its subsidiaries against certain losses
incurred by them as a result of claims based on their responsibilities,
obligations and duties under such Act.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware permits a Delaware corporation to include in its certificate of
incorporation a provision eliminating the potential monetary liability of a
director to the corporation or its stockholders for breach of fiduciary duty
as a director, provided that such provision shall not eliminate the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for improper payment of dividends, or (iv) for any transaction from
which the director receives an improper personal benefit. Valley National
Corporation's Certificate of Incorporation includes such a provision in
Article IX thereof.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
Exhibit Number Description of Exhibit
4.1 Valley National Corporation's Certificate of Incorporation,
filed as Exhibit (3)A. to the Company's Registration Statement
on Form S-4 (Registration No. 333-67661) is incorporated herein
by reference.
4.2 Valley National Corporation's Bylaws, filed as Exhibit (3)B. to
the Company's Registration Statement on Form S-4 (Registration
No. 333-67661) are incorporated herein by reference.
5 Opinion of Dostart Clapp Sterrett & Coveney, LLP regarding
Valley National Corporation Common Stock and Consent.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24 Powers of Attorney (included as part of the Signature Page
of this Registration Statement).
99.1 Valle de Oro Bank, N.A. Employee Stock Ownership Plan, filed as
Exhibit 10.9 to the Company's Registration Statement on Form
S-4 (Registration No. 333-67661) is incorporated herein by
reference.
99.2 First Amendment to the Valle de Oro Bank, N.A. Employee Stock
Ownership Plan.
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ITEM 9. Undertakings.
(a) 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 this 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 this Registration
Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this 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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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) 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
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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 of
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 Company
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 on Form S-8 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of El Cajon, State of California, on
March 17, 1999.
VALLEY NATIONAL CORPORATION
By: /s/ William V. Ehlen
-----------------------------------
Name: William V. Ehlen
Title: President and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William V. Ehlen and C. K. Hill, or either one
of them, his true and lawful attorney-in-fact and agent, 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 (including
post-effective amendments) to this Registration Statement and any subsequent
registration statements relating to the offering to which this Registration
Statement relates, 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 agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or either of them,
or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ William V. Ehlen /s/ C. K. Hill
- ----------------------------------- ---------------------------------------
William V. Ehlen, President C. K. Hill, O.D., Secretary and
Director and Director
/s/ James F. Carroll /s/ Philip J. Gelber
- ----------------------------------- ---------------------------------------
James F. Carroll, Chairman of Philip J. Gelber, M.D., Director
the Board and Director
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/s/ Samuel M. Ciccati /s/ Obert D. "Dale" Conway
- ----------------------------------- ---------------------------------------
Samuel M. Ciccati, Ph.D., Director Obert D. "Dale" Conway, Director
/s/ Paul M. Cable
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Paul M. Cable, Treasurer, Chief
Financial Officer and Principal
Accounting Officer
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Pursuant to the requirements of the Securities Act of 1933, the Trustee
and a member of the Committee administering the plan set forth below have
duly caused this Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of El Cajon, State of
California, on March 17, 1999.
Valley National Corporation ESOP Trust
By: /s/ William V. Ehlen
--------------------------------------------------
William V. Ehlen, Trustee
Administrative Committee Member for the Valley
National Corporation ESOP Trust
By: /s/ Paul M. Cable
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Paul M. Cable, Administrative Committee Member
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EXHIBIT 5
[LETTERHEAD OF DOSTART CLAPP STERRETT & COVENEY, LLP]
March 29, 1999
The Board of Directors
Valley National Corporation
1234 East Main Street
San Diego CA 92021
Attention: Mr. William V. Ehlen
Re: Registration Statement on Form S-8 -
Valley National Corporation ESOP Trust
Ladies and Gentlemen:
We have served as counsel for Valley National Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 10,000 shares (the
"Shares") of the Company's authorized Common Stock, par value $0.0001 per
share, to be issued to participants in the Valley National Corporation ESOP
Trust (the "Plan"), pursuant to the Company's Registration Statement on Form
S-8 (the "Registration Statement"). This opinion is furnished to you
pursuant to the requirements of Form S-8.
We are familiar with the proceedings to date with respect to such
offering and have examined such records, documents and matters of law and
satisfied ourselves as to such matters of fact as we have considered relevant
for purposes of this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals and the conformity to the originals of
all documents submitted to us as copies. We have also assumed the
genuineness of the signatures of persons signing all documents in connection
with which this opinion is rendered, the authority of such persons signing on
behalf of the parties thereto, and the due authorization, execution and
delivery of all documents by the parties thereto.
Based upon the foregoing, and having regard for such legal considerations
as we have deemed relevant, it is our opinion that the Shares have been duly
authorized and upon
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Valley National Corporation
March 29, 1999
Page 2
- ---------------------------
issuance, sale and delivery of the Shares as contemplated in this
Registration Statement, the Shares will be legally issued, fully paid and
nonassessable.
This opinion shall be limited to the laws of the State of California,
the General Corporation Law of the State of Delaware and the federal laws of
the United States of America.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement on Form S-8.
Very truly yours,
DOSTART CLAPP STERRETT & COVENEY, LLP
/s/ James K. Sterrett
------------------------------
James K. Sterrett
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Valley National Corporation:
We consent to incorporation by reference in the registration statement on
Form S-8 of Valley National Corporation related to its ESOP Trust of our
report dated January 20, 1999, relating to the balance sheets of Valle de Oro
Bank, N.A. as of December 31, 1998 and 1997, and the related statements of
earnings, changes in stockholders' equity and comprehensive income, and cash
flows for each of the years in the two-year period ended December 31, 1998,
which report appears in the December 31, 1998, annual report on Form 10-KSB
of Valle de Oro Bank, N.A.
KPMG LLP
San Diego, California
March 30, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Valley National Corporation ESOP Trust of our
report, dated January 17, 1997, with respect to the financial statements of
Valle de Oro Bank, N.A., included in Form 10-KSB for 1998, filed with the
Securities and Exchange Commission.
PricewaterhouseCoopers LLP
San Diego, California
March 29, 1999
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EXHIBIT 99.2
FIRST AMENDMENT TO THE
VALLE DE ORO BANK, N.A.
EMPLOYEE STOCK OWNERSHIP PLAN
This First Amendment (Amendment) to the Valle de Oro Bank, N.A. Employee Stock
Ownership Plan (Plan) is made and adopted by Valle de Oro Bank, N.A. (Employer).
RECITALS
A. The Board of Directors (Board) of the Employer determined that it would be
in the best interests of the corporation to adopt an employee stock
ownership plan effective January 1, 1998, for the benefit of the
corporation's employees.
B. Effective January 1, 1998, the Employer established an employee stock
ownership plan and created its Trust for the purpose of carrying out such
Plan and Trust.
C. The Employer is in the process of forming a holding company to be the
parent corporation to the Employer and the name of the holding company will
be Valley National Corporation
D. The Employer now wishes to amend the Plan to change the name of the Plan
from the Valle de Oro Bank, N.A. Employee Stock Ownership Plan to the
Valley National Corporation ESOP Trust.
OPERATIVE PROVISIONS
In accordance with the foregoing recitals, the Employer hereby amends the Plan,
effective retroactive to January 1, 1999, as follows:
1. Plan Section 2.23 shall be amended in its entirety to read as follows:
2.23 PLAN.
"PLAN" REFERS TO THIS STOCK BONUS EMPLOYEE STOCK OWNERSHIP PLAN AND
TRUST AGREEMENT, WHICH SHALL BE KNOWN AS THE VALLEY NATIONAL
CORPORATION ESOP TRUST.
3. In all other respects, the Plan shall remain in full force and effect.
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EXHIBIT 99.2
IN WITNESS WHEREOF, the Employer has caused this Amendment to be executed by
its duly authorized officer on this 17th day of March, 1999.
EMPLOYER
VALLE DE ORO BANK, N.A.
By: /s/ William V. Ehlen
-----------------------------------------
William V. Ehlen, President
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