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REGISTRATION NO. 333-37233
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FP BANCORP, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 33-0018976
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Harvey L. Williamson, President
FP Bancorp, Inc.
613 West Valley Parkway 613 West Valley Parkway
Escondido, California 92025, (760) 741-3312 Escondido, California 92025, (760)739-6500
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area code, and telephone number,
of Registrant's principal executive offices) including area code, of agent for
service)
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COPIES TO:
Franklin T. Lloyd, Esq.
HIGGS, FLETCHER & MACK LLP
401 West "A" Street, Suite 2000
San Diego, California 92101
Approximate date of commencement of proposed sale to public: November 15, 1997
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act Registration Statement number of the earlier effective
Registration Statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier effective Registration Statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE REGISTRATION
REGISTERED REGISTERED SHARE (1) OFFERING PRICE (2) FEE
---------- ---------- --------- ------------------ ---
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Common Stock, $0.001
par value 457,500 $10 $4,575,000 $1,386
------- --- ---------- ------
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(1) Based on Fair Market Value of the Common Stock, as defined for purposes of
the Debentures, being $20 or less per share. If such value exceeds $20, the
number of shares issuable upon conversion will be reduced to a number such that
the fair market value thereof shall equal $2,000 per $1,000 in principal amount
of Debenture converted and the offering price per share will be proportionately
increased (but the aggregate offering price cannot exceed $4,575,000). See
DESCRIPTION OF DEBENTURES - Conversion Rate.
(2) Maximum aggregate price receivable by the Company upon conversion of the
Debentures.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PROSPECTUS
FP BANCORP, INC.
340,940 SHARES OF COMMON STOCK
This Prospectus relates to the offer and sale of up to 340,940 shares (the
"Shares") of the common stock, par value, $.001 per share, (the "Common Stock")
of FP Bancorp, Inc., a Delaware corporation, (the "Company") issuable upon
conversion of its outstanding 9% Convertible Subordinated Debentures (the
"Debentures") due December 31, 1997 (the "Maturity Date").
On the Maturity Date, the Company will pay the Debenture holders cash in the
principal amount of their Debentures together with accrued interest thereon
through the Maturity Date; or, for holders who exercise their conversion rights
("Conversion Rights"), in lieu of payment of the principal amount in cash, for
$1,000 in principal amount of Debentures the Company will issue the holder 74
Shares of Common Stock plus $14.03 in cash.
The Common Stock is quoted on The Nasdaq National Market System. On December 30,
1997, the quoted "bid" price for the last sale of Common Stock was $28.25 per
share. The price of the Common Stock received upon conversion will fluctuate in
the market and no assurance is given as to the price.
ON DECEMBER 29, 1997, THE COMPANY ENTERED INTO A DEFINITIVE MERGER AGREEMENT
("MERGER AGREEMENT") WITH ZIONS BANCORPORATION ("ZIONS"). BECAUSE OF THE MERGER
AGREEMENT, THE CONVERSION DEADLINE FOR THE DEBENTURES HAS BEEN EXTENDED BY THE
COMPANY TO JANUARY __, 1998. SEE "RECENT DEVELOPMENT" ON PAGE 4.
INVESTMENT IN THE SECURITIES OFFERED INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
ON PAGE 3.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Price to Debenture Underwriting Discounts Proceeds to
Holders and Commissions Issuer(1)
------- --------------- ---------
Per Share $13.4188 None $13.4188
- ---------
Total $4,575,000 None $4,575,000
- ----- ---------- ---- ----------
(1) Before deducting legal fees, accounting fees, printing costs and other
expenses of this offering, estimated at approximately $23,386.
The date of this Prospectus is January __, 1998
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commissions
regional offices at 75 Park Place, 14th Floor, New York, N.Y. 10007 and 500 West
Madison Street, Suite 1400, Chicago, IL 60621-2511. Copies of such materials can
be obtained from the public reference section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Commission
maintains a web site that contains reports, proxy and information statements and
other information regarding issuers that file electronically with the Commission
and the address on the Internet site is http://www.sec.gov. Since September 18,
1995 the Common Stock has been traded on the Nasdaq National Market System.
Reports, proxy statements and other information concerning the Company may be
inspected at the National Association of Securities Dealers, Inc. at 1735 K
Street N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement"). The Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is hereby made to the Registration Statement. The
statements contained herein concerning the provisions of any document are not
necessarily complete, and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company which have been filed with the Commission
are hereby incorporated by reference in this Prospectus.
(a) Annual report on Form 10-KSB for the year ended December 31, 1996.
(b) Quarterly reports on Form 10-QSB for the quarters ended March 31,
1997, June 30, 1997, and September 30, 1997.
(c) Report on Form 8-K, dated January 6, 1998.
(d) Proxy Statement for the Company's 1997 Annual Meeting.
In addition, all documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(b) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Common Stock shall be deemed
to be incorporated by reference into this Prospectus and be a part hereof from
the respective dates of filing of such documents. Any statement contained herein
or in a document all or any portion of which is incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to any person to whom this Prospectus is
delivered, upon the written or oral request of such person, a copy of any or all
of the foregoing documents incorporated herein by reference (other than certain
exhibits to such documents). Request for such copies should be directed to FP
Bancorp, Inc., Attention: Secretary, by mail at 613 West Valley Parkway,
Escondido, California 92025, or by telephone (760) 741-3312.
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RISK FACTORS
Agreement to Merge with Zions Bancorporation. On December 29, 1997, the Company
entered into the Merger Agreement with Zions. If the merger contemplated by that
agreement is consummated, the Company's stockholders will be entitled to receive
0.627 shares of Zions common stock for each share of the Company's Common Stock.
The price of the Company's Common Stock rose substantially on December 30, 1997,
and, as required by the Indenture governing the Debentures, the Fair Market
Value of the Company's Common Stock for purposes of determining the conversion
rate under the Debentures (the "Conversion Rate") was based on the quoted "bid"
price for the last sale of Common Stock in The Nasdaq Stock Market on that date.
Until consummation of the merger, the price of the Common Stock will be affected
by changes in the price of the Zions common stock, among other factors. If the
merger with Zions does not occur or if the price of Zions common stock drops,
there is a substantial risk the price of the Common Stock will drop from the
level it attained on December 30, 1997.
Competition. In general, the banking business in California is highly
competitive with respect to both loans and deposits and is dominated by major
banks with many offices operating over a wide geographic area. In the Company's
primary service area, major banks dominate the commercial banking industry as a
result of acquisitions of other independent banks in the area in recent years.
The Company competes for deposits and loans with other commercial banks and with
non-bank financial institutions, including savings and loan associations and
credit unions.
Institutions such as brokerage firms, credit card companies and even retail
establishments offer alternative investment vehicles such as money market funds
and traditional banking services such as check-writing and cash advances on
credit card accounts. Other entities (both public and private) seeking to raise
capital through the issuance and sale of debt or equity securities also
represent a source of competition for the Company with respect to acquisition of
deposits.
Among the advantages certain of these institutions have over the Company are
their ability to finance wide-ranging and effective advertising campaigns, to
access international money markets and to allocate their investment resources to
regions of highest yield and demand. Major banks operating in the Company's
service area offer services, such as international banking and trust services,
which are not offered by FPNB. Also, by virtue of their greater total
capitalization, such banks have substantially higher lending limits than FPNB.
Financial Markets Risk. Banking is a business that depends primarily on interest
rate differentials. In general, the difference between the interest rates paid
by the Company on its deposits and its other borrowings, and the interest rates
earned by the Company on loans extended to its customers and investment
securities held in its portfolio, comprise the major portion of the Company's
net earnings. This rate differential can be affected by changes in global,
national, and local economic conditions and changes in the interest rate policy
of the U.S. Federal Reserve Bank. The Company has no control over these effects;
and their changes and effect on the Company cannot be predicted.
Legislation and Regulation. From time to time, legislation is enacted which has
the effect of increasing the cost of doing business, limiting or expanding
permissible activities or affecting the competitive balance between banks and
other financial institutions. Proposals to change the laws and regulations
governing the operations and taxation of bank holding companies, banks and other
financial institutions are frequently made in Congress, in the California
Legislature and before various bank holding company and bank regulatory
agencies. The likelihood of any major change and the impact such change might
have cannot be predicted.
Dependence on Real Estate. A substantial portion of the Company's loan portfolio
consists of loans secured by real estate. Real estate term lending, especially
lending secured by vacant land, involves risks that real estate values in
general will fall and that the value of the particular real estate security for
a loan will fall. The Company has no control over real estate values or the
state of the economy, and the effect on the Company of changes in these factors
cannot be predicted.
Disclosure Regarding Forward-Looking Statements. This Prospectus and documents
incorporated herein by reference include "Forward-Looking Statements." All
statements other than descriptions of documents and statements of historical
fact included in (i) this Prospectus, including, without limitation, under "Risk
Factors," and (ii) included in the Company's annual report on Form 10-KSB for
the year ended December 31, 1996, incorporated herein by reference, including,
without limitation, under the following sections of that report:
- the sections entitled "Competition" and "Supervision and Regulation"
under "Item 1. DESCRIPTION OF BUSINESS"
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- "Item 2. DESCRIPTION OF PROPERTIES"
- "Item 6. MANAGEMENT'S DISCUSSION AND ANALYSIS"
regarding the Company's strategies, plans, objectives, and expectations; the
Company's assessment of interest rate risk; the condition of the economy in its
market area; its future operating results; and other matters, are all
Forward-Looking Statements.
Although the Company believes that the expectations reflected in such
Forward-Looking Statements are reasonable at this time, it can give no assurance
that those expectations will prove to be correct. Important factors that could
cause actual results materially different from the Company's expectations are
set forth in these Risk Factors, as well as elsewhere in this Prospectus and
such incorporated documents. All subsequent written and oral Forward-Looking
Statements attributable to the Company or persons acting on its behalf are
expressly qualified in their entirety by these Risk Factors.
RECENT DEVELOPMENT
Merger Agreement. On December 29, 1997, the Company and Zions entered into the
Merger Agreement. The merger is structured to be tax-free and is intended to be
accounted for as a pooling-of-interests. The Merger Agreement is subject to the
approval of banking regulators and approval by a majority vote of the
stockholders of the Company. Directors, officers, and certain stockholders of
the Company, controlling an aggregate of 45% of the Company's Common Stock, have
agreed to vote in favor of the Merger Agreement. Holders of Shares issued upon
conversion of the Debentures will be entitled to vote at the Company's
stockholder meeting where the Merger Agreement is presented for approval. The
transaction is expected to close in the second quarter of 1998. At the closing,
the Company will merge into Zions and at or after the closing the Company's
wholly-owned bank, First Pacific National Bank, ("First Pacific") will merge
with and into Grossmont Bank, a subsidiary of Zions. As of September 30, 1997,
First Pacific had approximately $359,000,000 in assets and operated eight
offices in San Diego and Riverside counties; Grossmont Bank had $780,000,000 in
assets and operated 16 offices in San Diego County.
Zions operates full service banking offices in Arizona, California, Colorado,
Idaho, Nevada, New Mexico, and Utah. It also offers a comprehensive array of
investment, mortgage and insurance services, and is a leader in providing
innovative financial solutions for small businesses nationwide. Zions common
stock is traded on The Nasdaq Stock Market under the symbol "ZION."
Extension of Conversion Date. Because of the proximity of the date of entry into
the Merger Agreement to the date on which holders of Debentures would be
required to exercise their Conversion Rights if they wished to do so, the
Company has extended the time in which the holders of Debentures would be
permitted to exercise their Conversion Rights to January __, 1998. The Company
also has arranged that any holder who had given notice of intention to exercise
such Conversion Right would be given until January __, 1998, to withdraw such
notice and receive cash rather than Common Stock for such Debenture.
DESCRIPTION OF DEBENTURES
Description. Pursuant to a Prospectus under an effective Registration Statement
filed under the federal Securities Act of 1933, as amended, (the "Securities
Act"), the Company's predecessor, ENB Holding Company, issued $4,575,000 face
amount of Debentures under an agreement of indenture (the "Indenture") between
ENB Holding Company and Bank of New York (formerly Meridian Trust Company of
California) (the "Trustee"), effective as of November 9, 1992. The Company is
the successor of ENB Holding Company and has assumed all of its obligations with
respect to the Indenture and the Debentures. The Debentures are convertible into
Common Stock, subordinated, bear interest at the rate of 9% per annum, and their
Maturity Date is December 31, 1997.
Conversion Right. Under the terms of the Debentures as modified by resolutions
of the Board of Directors, holders have the option until January __, 1998, (i)
to receive payment in cash for the face amount of the Debentures or (ii) to
exercise their Conversion Rights. Debentures of those holders who elect to
exercise their Conversion Rights in accordance with the terms of the Debentures
will convert their Debentures into 74.5226 Shares per $1,000 of principal. The
Company will not issue fractional Shares in connection with the conversion of
Debentures but will pay the converting Debenture holder cash in lieu of any
fractional share at the rate of $26.8375 per share rounded to the nearest
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penny. Therefore, for $1,000 in principal amount of Debenture, a converting
Debenture holder will receive 74 Shares of Common Stock plus $14.03 in cash in
lieu of the fractional share. The Conversion Right may be exercised as to all or
part of a Debenture, but in any event must be exercised in multiples of $1,000.
Conversion Rate. Under the original terms of the Debenture, the Conversion Rate
was 100 Shares of Common Stock per $1,000 in principal amount of Debentures.
However, under the terms of the Debenture, if the Fair Market Value of the
Common Stock on the Maturity Date exceeded $20 per share (as it did), the
Conversion Rate is reduced such that the Fair Market Value of the Common Stock
issuable upon such conversion would equal two times the principal amount applied
to the conversion (i.e. $1,000 in principal amount would purchase Shares having
a Fair Market Value of $2,000). For purposes of the Debentures, Fair Market
Value is defined as 95% of the quoted "bid" price for the last sale of Common
Stock preceding the conversion date as quoted on The Nasdaq National Market
System. This amount was to be determined by an officer of the Company following
the procedure specified in the Indenture. Under this procedure, the last quoted
"bid" price on December 30, 1997, was determined to be $28.25 resulting in a
Fair Market Value of $26.8375 per share.
Conversion Procedure. The Company has received Conversion Notices for all
Debentures. For Debenture holders who do not wish to withdraw their Conversion
Notices, no further action is required. For such holders, Shares issuable upon
conversion of their Debentures will be issued and such Shares and the cash in
lieu of fractional Shares will be forwarded to them as directed in their
Conversion Notices. Any holder who wishes to waive the right to withdraw a
Conversion Notice may do so by delivering a written notice to that effect (a
"Waiver") to the Company at the following address:
FP Bancorp, Inc.
613 West Valley Parkway
Escondido, California 92025
ATTN: Secretary
A Waiver must be signed by the same person(s) as signed the Conversion Notice.
No signature guarantee will be required for this purpose. A form of Waiver will
be provided by the Company by FAX on request.
Conversion Notice Withdrawal Procedure. Any Debenture holder who wishes to
withdraw a Conversion Notice and receive payment of the principal of the
Debenture in cash may do so by giving written notice to that effect (a
"Withdrawal Notice") which must be received by the Company on or before January
__, 1998 at the following address:
FP Bancorp, Inc.
613 West Valley Parkway
Escondido, California 92025
ATTN: Secretary
A Withdrawal Notice must be signed by the same person(s) as signed the
Conversion Notice (and the signature guaranteed by an eligible guarantor
institution with membership in an approved signature guarantee medallion program
where that was required in connection with the Conversion Notice). A form of
Withdrawal Notice will be provided by the Company by FAX on request. Where the
Conversion Notice is withdrawn in accordance with this procedure, the Debenture
will be treated as having been surrendered for the purpose of being paid in
cash.
Where a Withdrawal Notice is received with respect to a Conversion Notice which
provided for issuance of the Shares to a person who was not the registered
holder of the Debenture, the Conversion Notice will be given effect as an
assignment of the Debenture and the cash payable in respect of the Debenture
will be paid to the person to whom the Shares were to have been issued under the
Conversion Notice.
In order for a Withdrawal Notice to be effective, it must be received by the
Company no later than January __, 1998. Any Withdrawal Notice received after
that date will be given no force or effect.
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DESCRIPTION OF COMMON STOCK
The Company is authorized to issue 4,000,000 shares of Common Stock, of which
2,778,823 shares were outstanding as of December 31, 1997. If all Debentures are
converted into Common Stock, there will be up to an additional 340,940 shares
outstanding.
Holders of Common Stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders. There is no cumulative voting with
respect to the election of directors. Holders of Common Stock are entitled to
receive ratably any dividends that may be declared by the Board of Directors of
the Company out of legally available funds. Upon the liquidation, dissolution or
winding up of the Company, the holders of Common Stock are entitled to receive
ratably the net assets of the Company after payment of all debts and liabilities
and liquidation preferences of any outstanding shares of Preferred Stock.
Holders of Common Stock have no preemptive, subscription, redemption or
conversion rights.
DETERMINATION OF OFFERING PRICE
The Common Stock is being offered at 74.5226 shares of Common Stock per $1,000
principal amount of Debenture or $13.4188 per share. The offering price is
determined by the Conversion Rate required by the Debentures calculated as
described above. See "DESCRIPTION OF DEBENTURES - Conversion Rate."
USE OF PROCEEDS
The Offering will not generate new proceeds to the Company because the Shares
will be issued in satisfaction of the principal amount of the Debentures being
converted. However, upon conversion of the Debentures and issuance of the
related Shares, the liability on the balance sheet of the Company which has been
associated with such Debentures will be decreased in an amount equal to the
principal amount of such Debentures and the Company's stockholders' capital
account will increase by a like amount less costs associated with this offering
and the conversion.
PLAN OF DISTRIBUTION
The Company will solicit its Debenture holders to convert the Debentures into
Common Stock without the use of underwriters or other paid agents. Debenture
holders wishing to exercise their Conversion Rights shall transmit the related
Debentures together with duly executed notices of exercise to the Trustee. See
"DESCRIPTION OF DEBENTURES - Conversion Right." The Company will determine the
validity and effectiveness of the material transmitted and notify the Trustee as
to the principal amount of Debentures which have been converted. The Company
will cause its transfer agent to forward certificates evidencing the Shares
issuable upon such conversions to the former Debenture holders, or person(s)
designated by them, at the address(es) provided in their respective Conversion
Notices. Such certificates will be accompanied, in each case, by a payment equal
to the Fair Market Value of the fractional Share otherwise issuable upon such
conversion.
EXPERTS
The consolidated financial statements of the Company as of December 31, 1996 and
1995 and for each of the years in the three-year period ended December 31, 1996,
incorporated by reference in this Prospectus, have been incorporated herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in accounting and auditing.
LEGAL OPINION
The legality of the securities being offered hereby has been passed upon by
Higgs, Fletcher & Mack LLP, corporate counsel for the Company.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law provides that a corporation
may indemnify an officer or director who is made a party to a "proceeding"
whether civil, criminal, administrative or investigative (including a lawsuit or
derivative action) because of his position if he acted in good faith in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. In addition, the
Company may advance expenses incurred in defending any proceeding in certain
cases. If the director or officer is successful on the merits, he must be
indemnified against all
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expenses actually and reasonably incurred. If the officer or director is
adjudged liable, indemnity can be made only by court order. Such determination
shall be made (1) by a majority vote of directors who are not parties to such
action, or (2) if there are no directors or if directors so direct by,
independent legal counsel, or (3) by the stockholders.
Article 6 of the bylaws provides that the Company shall, to the maximum extent
and in the manner permitted by the Delaware General Corporation Law, indemnify
any director or officer against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with any proceeding. The Company shall pay the expenses in advance of
final disposition provided that the director shall repay all amounts advanced if
it is determined that he is not entitled to be indemnified. The bylaws also
authorize the Company to purchase and maintain insurance on behalf of directors
and officers against any liability asserted against them.
Article 8 of the Certificate of Incorporation provides that to the fullest
extent permitted by the Delaware General Corporation Law, no director shall be
personally liable to the corporation for monetary damages for breach of
fiduciary duty as a director. In addition, neither any amendment nor repeal of
Article 8 nor the adoption of any provision of the Certificate of Incorporation
inconsistent with Article 8, shall eliminate or reduce the effect of the
Article. The primary purpose of Article 8 is to enhance the Company's ability to
attract and retain qualified officers and directors and to encourage directors
and officers to continue to make independent and entrepreneurial decisions in
good faith on behalf of the Company. While the Company believes that Article 8
will have a positive effect, the ability of the Company or its stockholders to
bring legal action against the Company's directors and officers will be
impaired.
The employment agreement of each executive officer of First Pacific National
Bank ("FPNB"), the Company's wholly-owned subsidiary, also provides that FPNB
will indemnify the executive in the event he is made a party to any action by a
third party provided certain criteria are met. The executive must have acted in
good faith and in a manner he reasonably believed to be in the best interests of
FPNB and his actions must have been taken within the course and scope of his
employment as an officer or employee of FPNB.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in said act and is,
therefore, unenforceable.
The Company has a staggered board of directors. The board of directors consists
of 14 members who are divided into two classes with respect to term of office.
Each class contains one-half of the whole number of the board. The terms of
directors are two years and one-half of the board is elected each year.
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================================================================================
No dealer, salesman or other person has been authorized to give any
information or to make any representation in connection with this offering other
than those contained in or incorporated by reference in this Prospectus and, if
given or made, such information or representation must not be relied upon as
having been authorized by the Company or either of the Purchasers. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any of these securities offered in any jurisdiction to any person to whom it
is unlawful to make such an offer or solicitation in such jurisdiction. Neither
the delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information herein is correct as
of any time subsequent to the date hereof or that there has been no change in
the affairs of the Company since such date.
-----------------------
TABLE OF CONTENTS
PAGE
Available Information 2
Incorporation of Certain Documents by Reference 2
Risk Factors 3
Recent Development 4
Description of Debentures 4
Description of Common Stock 6
Determination of Offering Price 6
Use of Proceeds 6
Plan of Distribution 6
Experts 6
Legal Opinion 6
Indemnification of Officers and Directors 6
================================================================================
================================================================================
FP BANCORP, INC.
340,940 SHARES
COMMON STOCK
-------------------
PROSPECTUS
-------------------
January __, 1998
================================================================================
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the offering are as follows:
<TABLE>
<CAPTION>
Amount
<S> <C>
Registration Fee Under Securities Act of 1933 $1,386
NASD Filing Fee *
Blue Sky Fees and Expenses *
Printing $2,000
Legal Fees and Expenses $15,000
Accounting Fees and Expenses $3,500
Indenture Trustee's Fees $500
Miscellaneous Expenses $1,000
Federal Taxes *
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TOTAL $23,386
===== =======
</TABLE>
* Not applicable or none.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
See "PROSPECTUS - Indemnification of Officers and Directors."
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See the Exhibit Index of this Registration Statement.
II-1
<PAGE> 11
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 ("Securities 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 Securities 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
Securities Act and will be governed by the final adjudication of such issue.
II-2
<PAGE> 12
EXHIBITS.
4.1 Indenture dated November 9, 1992 (including Form of Debenture)
(incorporated by reference to Exhibit 4.2 to the Registration
Statement on Form S-2, File number 33-52086)
4.2 Trust Agreement (incorporated by reference to Exhibit 4.3 to the
Registration Statement on Form S-2, File number 33-52086)
5 Opinion of Higgs, Fletcher & Mack LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Higgs, Fletcher & Mack LLP (included in Exhibit 5)
24 Power of Attorney (included in signature page)
II-3
<PAGE> 13
SIGNATURES
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-3 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Escondido, State of
California, on January 7, 1998.
FP BANCORP, INC.
(Registrant)
By: /s/ Harvey L. Williamson
--------------------------------------------
Harvey L. Williamson, President
and Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below
constitutes and appoints Harvey L. Williamson and Michael J. Perdue, or either
of them, his attorney-in-fact, each with power of substitution for him in any
and all capacities, to sign any amendments to this Registration Statement and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and hereby ratifies and
confirms all that each said attorney-in-fact or his substitute or substitutes
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Capacity Date
* Director January 7, 1998
- -------------------------
Mark N. Baker
* Director, January 7, 1998
- ------------------------- Executive Vice
Gary W. Deems President, Chief
Administrative
Officer and Secretary
* Director January 7, 1998
- -------------------------
Earle W. Frey, Jr.
* Director January 7, 1998
- -------------------------
Robert W. Klemme
* Director January 7, 1998
- -------------------------
Joseph J. Kuebler
* Director January 7, 1998
- -------------------------
Randall C. Luce
* Director January 7, 1998
- -------------------------
Larry R. Markham
* Director January 7, 1998
- -------------------------
Richard W. McBride
* Director, January 7, 1998
- ------------------------- Executive Vice
Michael J. Perdue President, and Chief
Operating Officer
(Principal Financial
Officer and Principal
II-4
<PAGE> 14
Accounting Officer)
* Director January 7, 1998
- -------------------------
Richard S. Spanjian
* Director January 7, 1998
- -------------------------
Robert M. Spanjian
* Director January 7, 1998
- -------------------------
Richard B. Thomas
* Director January 7, 1998
- -------------------------
Michael W. Wexler
* Director, January 7, 1998
- ------------------------- President and
Harvey L. Williamson Chief Executive
Officer (Principal
Executive Officer)
* /s/ Harvey L. Williamson
- --------------------------
Harvey L. Williamson
Attorney-in-Fact
II-5
<PAGE> 1
EXHIBIT 5
HIGGS, FLETCHER & MACK LLP
ATTORNEYS AT LAW MEMBER, AMERICAN LAW FIRM ASSOCIATION
2000 FIRST NATIONAL BANK BUILDING
401 WEST "A" STREET
SAN DIEGO, CALIFORNIA 92101-791
TELEPHONE (619) 236-1551 TELECOPIER (619) 696-1410
January 7, 1998
FP Bancorp, Inc.
613 West Valley Parkway
Escondido, CA 92025
RE: FP BANCORP, INC. - POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION NO. 333-37233
Gentlemen:
We have acted as special counsel for FP Bancorp, Inc., a Delaware corporation
(the "Company"), in connection with the Registration Statement relating to the
registration under the Securities Act of 1933 of up to 457,500 shares of Common
Stock, $0.001 par value (the "Shares") upon conversion of up to $4,575,000
principal amount of 9% Convertible Subordinated Debentures due December 31, 1997
("Debentures") pursuant to an indenture dated as of November 9, 1992, between
the Company and Bank of New York (formerly Meridian Trust Company of California)
as Trustee ("Indenture").
This opinion letter is governed by, and shall be interpreted in accordance with,
the legal opinion accord (the "Accord") of the American Bar Association Business
Law Section (1991). As a consequence of interpretation of this opinion letter
pursuant to the Accord, this opinion letter is subject to a number of
qualifications, exceptions, definitions, limitations on coverage, and other
limitations, and should be read in conjunction therewith.
In so acting, we have examined a copy of the Certificate of Incorporation of the
Company, as amended, a copy of the Bylaws of the Company, as amended, a copy of
the Indenture, resolutions adopted by the Board of Directors of the Company, the
Officer's Certificates of Gary W. Deems, Secretary of the Company, and such
other records and documents as we have deemed relevant and necessary for the
opinions hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures and of all documents submitted to us as certified
or photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares have been duly
and validly authorized and, upon issuance of the Shares upon conversion of the
Debentures as provided in the Indenture, the Shares will be legally issued and
outstanding, fully paid and non-assessable.
We consent to being named in the Registration Statement and in the related
Prospectus under the heading "Legal Opinion," and further consent to your filing
this legal opinion as an exhibit to the Registration Statement.
Very truly yours,
HIGGS, FLETCHER & MACK LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
FP Bancorp, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the Post-Effective
Amendment No. 1 to the Registration Statement (No. 333-37233).
KPMG PEAT MARWICK LLP
San Diego, California
January 6, 1998
