Registration Statement No. 33-_________
As filed with the Securities and Exchange Commission on March 22, 2000
________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________________________
NORTHERN EMPIRE BANCSHARES
(Exact name of registrant as specified in its charter)
California 94-2830529
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
801 Fourth Street
Santa Rosa, California 95404
(Address of principal executive offices)
Northern Empire Bancshares 1997 Stock Option Plan
Northern Empire Bancshares Stock Option Plan (adopted in 1984)
(Full title of the plans)
Deborah A. Meekins (with copies to:)
President and Chief Executive Officer
Sonoma National Bank Lyman G. Lea
801 Fourth Street Jane Richardson
Santa Rosa, California 95404 Haines Brydon & Lea
(707) 579-2265 235 Pine Street, Suite 1300
(Name, address and telephone number, San Francisco, California 94014
including area code, of agent for Telephone: (415) 981-1050
service)
Included in this Registration Statement are 37, 010 shares with respect
to the Registrant's 1984 Stock Option Plan which are being carried forward from
Post Effective Amendment No. 6 to the Registrant's S-2 Registration
Statement, No. 33-60566, filed on March 25, 1999. No associated fees from
that S-2 Registration Statement are being carried forward.
Calculation of Registration Fee
_______________________________________________________________________
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(3) per share price fee
_______________________________________________________________________
Common stock -
Northern Empire
Bancshares Stock
Option Plan
(adopted 1984)(1) 37,010 $2.6695(4) $98,798.20(4) $26.08
Common stock -
Northern Empire
Bancshares 1997
Stock Option
Plan (2) 1,322,895 $14.6606(4) $19,394,434.43(4) $5,120.13
_______________________________________________________________________
*Numbers of shares and offering price information have been adjusted
to reflect stock splits and stock dividends previously paid.
(1) The shares to be registered consist of 37,010 shares covered by
options that have been granted under the Northern Empire Bancshares
Stock Option Plan adopted in 1984 ("1984 Plan"). Such shares are
being carried forward from the Post Effective Amendment No. 6 to the
Registrant's S-2 Registration Statement, No.33-60566, as filed on
March 25, 1999. No associated fees from that S-2 Registration
Statement are being carried forward in this Registration Statement.
(2) The shares to be registered consist of 793,485 shares covered by
options that are outstanding under the Northern Empire Bancshares
1997 Stock Option Plan ("1997 Plan") and 529,410 shares remaining
available for options that may be granted under the 1997 Plan.
(3) Pursuant to Rule 416, this Registration Statement also covers any
additional shares that may hereafter become issuable as a result of
the adjustment provisions of the 1984 Plan and the 1997 Plan
regarding stock splits, stock dividends or similar transactions.
(4) Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the registration fee. The price per share and the
aggregate offering price are calculated on the basis of (a) the
weighted average price at which outstanding options may be exercised
pursuant to the 1984 Plan and the 1997 Plan and (b) the average of
the bid and asked prices for the Registrant's common stock as of
March 14, 2000, as furnished by Mutual Securities.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Part I, Item 1 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended, and
the introductory Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which
documents are incorporated by reference in the Section 10(a) prospectus),
other documents required to be delivered to eligible employees or directors
pursuant to Rule 428(b) or additional information about the Northern Empire
Bancshares stock option plans that are covered by this Registration
Statement are available without charge by contacting Deborah A. Meekins,
President and Chief Executive Officer, Sonoma National Bank, 801 Fourth
Street, Santa Rosa, California 95404, Telephone: (707) 579-2265.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of Northern Empire Bancshares ("Registrant")
as filed with the Securities and Exchange Commission ("Commission") are
hereby incorporated by reference into this Registration Statement:
(a) Annual Report on Form 10-KSB filed with the Commission pursuant
to the Securities Exchange Act of 1934, for the Registrant's fiscal year
ended December 31, 1999.
(b) All other reports filed with the Commission pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the document referred to in (a), above.
(c) The information under "Description of Common Stock" in Post Effective
Amendment No. 6 to Registrant's S-2 Registration Statement (No. 33-60566),
as filed on March 25, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to
the fling of a post-effective amendment to this Registration Statement
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 herein and to be part hereof from the date of
filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document
which also is incorporated or is deemed to be incorporated by reference
herein modified or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
The class of Registrant's securities to be offered is not registered
under Section 12 of the Securities Exchange Act of 1934. The information
required by Item 202 of Regulation S-X is provided by incorporation by
reference to the information under "Description of Common Stock" in Post
Effective Amendment No. 6 to Registrant's S-2 Registration Statement (No.
33-60566), as filed on March 25, 1999.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The State of California adopted legislation, effective September 27,
1987, ("Legislation"), which amended the California General Corporation Law
to permit limitation of liability of directors and indemnification of
directors, officers and other agents to a greater extent than permitted
under prior California law. The Legislation permits a California
corporation to include a provision in its articles of incorporation
allowing the corporation to include in its bylaws, and in agreements
between the corporation and its directors, officers and other agents,
provisions expanding the scope of indemnification beyond that specifically
provided under California law.
In response to the Legislation, the Board of Directors and shareholders
previously approved amendments to the Corporation's Articles of
Incorporation and the Board of Directors approved amendments to the
Corporation's Bylaws, which limit the personal liability of directors for
monetary damages for a breach of such directors' fiduciary duty of care and
allow the Corporation to expand the scope of its indemnification of
directors, officers and other agents to the fullest extent permitted by
California law. The Corporation and its sole subsidiary, Sonoma National
Bank, have entered into Indemnification Agreements with the directors of
the Corporation and the Bank ("Indemnification Agreements").
Indemnification under State Statues and Bylaws
The Corporation is subject to the California General Corporation Law,
which provides a detailed statutory framework covering indemnification of
any officer, director or other agent of a corporation who is made or
threatened to be made a party to any legal proceeding by reason of his or
her service on behalf of the corporation. Such law provides that
indemnification against expenses actually and reasonably incurred in
connection with any such proceeding shall be made to any such person who
has been successful "on the merits" in the defense of any such proceeding,
but does not require indemnification in any other circumstances. The law
provides that a corporation may indemnify any agent of the corporation,
including officers and directors, against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in a third
party proceeding against such person by reason of his or her services on
behalf of the corporation, provided the person acted in good faith and in a
manner he or she reasonably believed to be in the best interests of the
corporation. The law further provides that in derivative suits a
corporation may indemnify such a person against expenses incurred in such a
proceeding, provided such person acted in good faith and in a manner he or
she reasonably believed to be in the best interests of the corporation and
its shareholders. Indemnification is not available in derivative actions
(i) for amounts paid or expenses incurred in connection with a matter that
is settled or otherwise disposed of without court approval or (ii) with
respect to matters for which the agent shall have been adjudged to be
liable to the corporation unless the court shall determine that such person
is entitled to indemnification.
The law permits the advancing of expenses incurred in defending any
proceeding against a corporate agent by reason of his or her service on
behalf of the corporation upon the giving of a promise to repay any such
sums in the event it is later determined that such person is not entitled
to be indemnified. Finally, the California General Corporation Law, as
amended by the Legislation, provides that the indemnification provided by
the statute is not exclusive of other rights to which those seeking
indemnification may be entitled, by bylaw, agreement or otherwise, to the
extent additional rights are authorized in a corporation's articles of
incorporation. The law further permits a corporation to procure insurance
on behalf of its directors, officers and agents against any liability
incurred by any such individual, even if a corporation would not otherwise
have the power under applicable law to indemnify the director, officer or
agent for such expenses.
The Articles and Bylaws of the Corporation implement the applicable
statutory framework to provide for indemnification of directors, officers
and other corporate agents.
Indemnification Agreements
The Indemnification Agreements provide to the directors the maximum
indemnification allowed under applicable law and under the Corporation's
Articles of Incorporation and Bylaws. The Indemnification Agreements
provide indemnification which expands the scope of indemnification provided
by Section 317 of the California General Corporation Law. It has not yet
been determined, however, to what extent the indemnification expressly
permitted by statute may be expanded, and therefore the validity and scope
of indemnification provided by the Indemnification Agreements may be
subject to future judicial interpretation.
The Indemnification Agreements set forth a number of procedural and
substantive matters which are not addressed or are addressed in less detail
in the California General Corporation Law, including those set forth below.
The Indemnification Agreements:
(1) Establish a standard of conduct that the person to be indemnified
must have acted "in a manner such person did not believe to be contrary to
the best interests of the corporation."
(2) Establish the presumption that the indemnified party has met the
applicable standard of conduct required for indemnification. In addition,
an arbitrator may make the determination that indemnification is proper in
any arbitration proceeding in which such determination is pending.
(3) Provide that litigation expenses shall be advanced to an
indemnified party at his request provided that he undertakes to repay the
amount advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses.
(4) Provide that in a derivative suit the indemnified party will be
entitled to indemnification against amounts paid in settlement, to the
fullest extent permitted by law, where the indemnified party meets the
applicable standard of conduct. The enforceability of the provisions in
the Indemnification Agreements providing for settlement payments in
derivative suits has not been judicially interpreted by the courts and may
be subject to public policy limitations. The Board of Directors has not
sought a legal opinion as to the enforceability of these provisions because
of the lack of judicial interpretation of the Legislation to date.
(5) In the event the Corporation does not pay a requested
indemnification amount, the Indemnification Agreements allow the
indemnified party to contest this determination by petitioning a court to
make an independent determination of whether such party is entitled to
indemnification under the Indemnification Agreements. In the event of such
a contest, the burden of providing that the indemnified party did not meet
the applicable standard of conduct will be on the Corporation. If the
Corporation fails to establish that the applicable standard of conduct has
not been met, the indemnified party will be entitled to indemnification,
which will include reimbursement for expenses incurred by the indemnified
party in such contest in establishing the right to indemnification.
(6) Provide for partial indemnification of costs and expenses in the
event that an indemnified party is not entitled to full indemnification
under the terms of the Indemnification Agreements.
(7) Automatically incorporate future changes in the laws which
increase the protection available to the indemnitee. Such changes will
apply to the Corporation without further shareholder approval and may
further impair shareholders' rights or subject the Corporation's assets to
risk of loss in the event of large indemnification claims. Each
Indemnification Agreement constitutes a binding, legal obligation of the
Corporation, and may not be amended without the consent of the individual
who is protected by such Indemnification Agreement.
(8) Provide that actions by an indemnified party serving at the
request of the Corporation as a director, officer or agent of an employee
benefit plan, corporation, partnership, joint venture or other enterprise,
owned or controlled by the Corporation, shall be covered by the
indemnification.
Article SEVEN of the Registrant's Articles of Incorporation provides
that the Registrant is authorized to indemnify its directors, officers,
employees and other agents as follows:
SEVEN: INDEMNIFICATION OF AGENTS
The corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the Corporations Code)
through bylaw provisions, agreements with the agents, vote of
shareholders or disinterested directors, or otherwise, in
excess of the indemnification otherwise permitted by Section 317
of the Corporations Code, subject only to the applicable limits
on such excess indemnification set forth in Section 204 of the
Corporations Code with respect to breach of duty to the
corporation and its shareholders.
Article VI of the Registrant's Bylaws provides for indemnification of
directors, officers, employees and other "agents" of the Corporation as
follows:
"ARTICLE VI
Indemnification
Section l. Extent of Indemnification. The Corporation shall
have the power to indemnify agents (as defined in Section 317
of the California Corporations Code), including directors,
officers and employees, in accordance with the provisions of
Section 317 or as otherwise permitted under the Corporation's
Articles of Incorporation.
Section 2. Expense Advancement. Expenses incurred in defending
any proceeding may be advanced by the Corporation prior to the
final disposition of such proceeding upon receipt of an
undertaking by or on behalf of the agent to repay such amount
unless it shall be determined ultimately that the agent is
entitled to be indemnified.
Section 3. Insurance. The Corporation may purchase and
maintain insurance on behalf of any agent of the Corporation
against any liability asserted against or incurred by the agent
in such capacity or arising out of the agent's status as such
whether or not the Corporation would have the power to
indemnify the agent against such liability under the
provisions of Section 317 of the California Corporations Code."
The provisions of the California General Corporation Law relating
to indemnification of directors, officers, employees and other agents of a
corporation, as presently in effect, are set forth in Sections 204 and 317,
copies of which are included in this Registration Statement as Exhibit 99.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith:
Exhibit Number Description
4 Northern Empire Bancshares Stock Option Plan (adopted in
1984), as amended, incorporated by reference to Exhibit
10.1 to Registrant's Registration Statement on Form S-2,
SEC File No. 33-51906, filed on September 11, 1992
4.2 Northern Empire Bancshares 1997 Stock Option Plan, as
amended, incorporated by reference to Exhibit 10(b) to
Registrant's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 1998
5 Opinion of Haines Brydon & Lea regarding legality of
securities being offered, including consent
23.1 Consent of Moss Adams LLP
23.2 Consent of PriceWaterhouseCoopers LLP
23.3 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (included in signature page to this
Registration Statement)
99 Sections 204 and 317 of the California General
Corporation Law incorporated by reference to Exhibits
99 and 99.1 to Registrant's Registration Statement on
Form S-2, SEC File No. 33-51906
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:
(ii) 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.
(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 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
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
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) 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.
(c) 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 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 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.
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-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Santa Rosa, California, on this 21st day of
March, 2000.
NORTHERN EMPIRE BANCSHARES
By: /s/ James B. Keegan, Jr.
------------------------------
James B. Keegan, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Patrick R. Gallaher
-----------------------------
Patrick R. Gallaher
Chief Accounting Officer
(Principal Accounting and Financial Officer)
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints
Lyman G. Lea and Jane Richardson, and each 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 to file the same, with all
exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission under the Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933 this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
/s/ Dennis R. Hunter Date: March 21, 2000
- ---------------------------------- --------------------
Dennis R. Hunter
Chairman of the Board of Directors
/s/ James B. Keegan, Jr. Date: March 21, 2000
- ----------------------------------- --------------------
James. B. Keegan, Jr.
President and Chief Executive
Officer/Director
/s/ Patrick R. Gallaher Date: March 21, 2000
- ----------------------------------- --------------------
Patrick R. Gallaher
Chief Accounting Officer/Director
Date:
- ----------------------------------- --------------------
Robert V. Pauley
Director
/s/ William P. Gallaher Date: March 21, 2000
- ----------------------------------- --------------------
William P. Gallaher
Director
/s/ Clement C. Carinalli Date: March 21, 2000
- ------------------------------------ --------------------
Clement C. Carinalli
Director
- ------------------------------------ --------------------
William E. Geary
Director
EXHIBIT INDEX
-------------
Exhibit Number Description
- -------------- -----------
4 Northern Empire Bancshares Stock Option Plan (adopted
in 1984),as amended, incorporated by reference to
Exhibit 10.1 to Registrant's Registration Statement
on Form S-2, SEC File No. 33-51906, filed on
September 11, 1992
4.2 Northern Empire Bancshares 1997 Stock Option Plan,
as amended, incorporated by reference to Exhibit
10(b) to Registrant's Quarterly Report on Form
10-QSB for the quarter ended June 30,1998
5 Opinion of Haines Brydon & Lea regarding legality of
securities being offered, including consent
23.1 Consent of Moss Adams LLP
23.2 Consent of PriceWaterhouseCoopers LLP
23.3 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (included in signature page to this
Registration Statement)
99 Sections 204 and 317 of the California General
Corporation Law incorporated by reference to Exhibits
99 and 99.1 to Registrant's Registration Statement
on Form S-2, SEC File No. 33-51906
EXHIBIT 5
Our File No.
82040
March 21, 2000
The Board of Directors
Northern Empire Bancshares
801 Fourth Street
Santa Rosa, CA 95404
Re: Northern Empire Bancshares - S-8 Registration Statement
Gentlemen:
We have acted as counsel for Northern Empire Bancshares, a
California corporation, ("Company"), in connection with the Registration
Statement on Form S-8 filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, relating to the
registration of (1) 37,010 shares of the Company's common stock, no par
value, available for issuance under the Company's Stock Option Plan,
adopted in l984, and (2) 1,322,895 shares of the Company's common stock,
no par value, available for issuance under the Company's 1997 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,
HAINES BRYDON & LEA
/s/ Jane Richardson
-------------------
Jane Richardson
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report, dated January 14, 2000, on our
audit of the financial statements of Northern Empire Bancshares as of
December 31, 1999, and for the year then ended, which report is
included in the Company's Annual Report on Form 10-KSB for the year
ended December 31, 1999.
/s/ Moss Adams LLP
Santa Rosa, California
March 20, 2000
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 11, 1999 relating to the
financial statements, which appears in Northern Empire Bancshares'
Annual Report on Form 10-KSB for the year ended December 31, 1999.
PricewaterhouseCoopers LLP
San Francisco, CA
March 22, 2000
