<PAGE>
As filed with the Securities and Exchange Commission on _________, 1999
Registration No.________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement under the Securities Act of 1933
Civic BanCorp
-------------
(Exact name of registrant as specified in its charter)
California 68-0022322
---------- ----------
(State or other jurisdiction of (IRS employer identification no.)
incorporation or organization)
2101 Webster Street, Oakland, California 94612
----------------------------------------------
(Address of principal executive office, including zip code)
Civic BanCorp 1994 Stock Option Plan
------------------------------------
(Full title of the plans)
Herbert C. Foster, Civic BanCorp, 2101 Webster Street, Oakland, CA 94612-3043
-----------------------------------------------------------------------------
(Name and address of agent for service)
(510) 836-6500
--------------
(Telephone number, including area code, of agent for process)
Calculation of Registration Fee
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum aggregate Amount of
of the registered registered offering price per unit offering price registration fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, 296,625 $13.75 (1) $4,078,594.75 (1) $1,133.85
Options to acquire shares
common stock
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low prices as reported on the NASDAQ Stock
Market's National Market on September 20, 1999. Calculated pursuant to Rules
457(c) and (h) under the Securities Act of 1933, as amended.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the instructions for Form S-8, information required in the
prospectus (Items 1 and 2) is not included in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed or to be filed with the
Commission pursuant to the Securities Exchange Act of 1934 ("Exchange Act") are
hereby incorporated by reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998.
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
(c) Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999;
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant's Annual
Report on Form 10-K referred to in paragraph (a) above.
(e) The description of the Registrant's common stock contained in the
Registration Statement filed under the Exchange Act, including the description
of the Shareholder Rights Plan as described in the Form 8-A Rights Agreement
previously filed with the Commission.
All documents filed by Registrant pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and 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 herein and
to be a part hereof from the date of filing thereof.
2
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Shares that may be offered under the Civic BanCorp
Employee Stock Purchase Plan will be passed upon for the Registrant by
McCutchen, Doyle, Brown & Enersen, LLP, Three Embarcadero Center, San Francisco,
CA 94111. Attorneys who are partners or employed by McCutchen, Doyle, Brown &
Enersen LLP in the aggregate own approximately 3,600 Shares.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California General Corporation Law permits
indemnification of directors, officers and employees of corporations under
certain conditions and subject to certain limitations. The articles of
incorporation of the Registrant contain provisions limiting the monetary
liability of directors for breaches of the duty of care. Article 5 of the
Bylaws of the Registrant contains provisions for the indemnification of
directors, officers and employees to the fullest extent permitted under Section
317. In addition, the Registrant maintains officers and directors liability
insurance for an annual aggregate maximum of $10,000,000.
Item 7. Exemption from Registration Claimed.
No securities to be sold pursuant to this registration statement are
being reoffered or resold. Therefore this item is not applicable.
Item 8. Exhibits
4. Civic BanCorp 1994 Stock Option Plan as amended to Date
5.1 Opinion of McCutchen, Doyle, Brown & Enersen LLP re legality
23.1 Consent of KPMG LLP
23.2 Consent of McCutchen, Doyle, Brown & Enersen LLP (included in
their opinion included as Exhibit 5.1)
24. Power of attorney
Item 9. Undertakings.
(1) Registrant hereby undertakes:
3
<PAGE>
(a) To file during any period in which offers of 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 (the "1933 Act");
(ii) to reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the 1934 Act that are incorporated by reference in the
Registration Statement.
(b) That, for the purpose of determining any liability under the 1933
Act, 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.
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference
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) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the Prospectus, to each person to whom the Prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the 1934 Act); and, where interim
financial information required to be presented by Article 3 of Regulation S-X of
the 1934 Act are not set forth in the Prospectus, to deliver, or cause to be
delivered to each person to whom the Prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
Prospectus to provide such interim financial information.
4
<PAGE>
(4) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 6 above, 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 1933 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 1933 Act and
will be governed by the final adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Oakland, State of California, on September 20, 1999.
CIVIC BANCORP
(Registrant)
By /s/ Herbert C. Foster
---------------------------------
Herbert C. Foster
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Herbert C. Foster President and Chief Executive Sept. 20, 1999
- ------------------------------------------- Officer and Director (Principal
Herbert C. Foster Executive Officer)
/s/ Gerald J. Brown Senior Vice President and Chief Sept. 20, 1999
- ------------------------------------------- Financial Officer (Principal
Gerald J. Brown Financial and Accounting
Officer)
/s/ C. Donald Carr Director and Chairman Sept. 20, 1999
- -------------------------------------------
C. Donald Carr
/s/ David L. Cutter Director Sept. 20, 1999
- -------------------------------------------
David L. Cutter
/s/ Wayne S. Doiguchi Director Sept. 20, 1999
- -------------------------------------------
Wayne S. Doiguchi
/s/ John W. Glenn Director Sept. 20, 1999
- -------------------------------------------
John W. Glenn
/s/ Paul R. Handlery Director Sept. 20, 1999
- -------------------------------------------
Paul R. Handlery
</TABLE>
6
<PAGE>
/s/ James C. Johnson Director Sept. 20, 1999
- -------------------------------------------
James C. Johnson
/s/ Paul C. Kepler Director Sept. 20, 1999
- -------------------------------------------
Paul C. Kepler
/s/ John E. Lindstedt Director Sept. 20, 1999
- -------------------------------------------
John E. Lindstedt
/s/ Edward G. Mein Director Sept. 20, 1999
- -------------------------------------------
Edward G. Mein
/s/ Dale D. Reed Director Sept. 20, 1999
- -------------------------------------------
Dale D. Reed
/s/ Edward G. Roach Director Sept. 20, 1999
- -------------------------------------------
Edward G. Roach
/s/ Barclay Simpson Director Sept. 20, 1999
- -------------------------------------------
Barclay Simpson
7
<PAGE>
Exhibit Index
Item 8. Exhibits. Page
- ----------------- ----
4. Civic BanCorp 1994 Stock Option Plan as amended to Date
5.1 Opinion of McCutchen, Doyle, Brown & Enersen LLP re legality
23.1 Consent of KPMG LLP
23.2 Consent of McCutchen, Doyle, Brown & Enersen LLP (included in their
opinion included as Exhibit 5.1
24. Power of attorney
<PAGE>
EXHIBIT 4
CIVIC BANCORP
1994 STOCK OPTION PLAN
----------------------
(As amended through September 1, 1999)
1. PURPOSE OF PLAN
---------------
The Civic BanCorp 1994 Stock Option Plan, as amended, is intended to
encourage key employees and directors of Civic BanCorp, a California corporation
(the "Company"), its Subsidiaries and Parent (if any) to acquire stock in the
Company and to provide such persons with an additional incentive to promote the
financial success of the Company.
2. DEFINED TERMS
-------------
Capitalized terms used in the Plan have the following meanings:
(a) "Board of Directors": The Board of Directors of the Company.
(b) "Change of Ownership": Any (i) merger, consolidation, share
exchange or reorganization of the Company with any other corporation in which
the Company is not the surviving corporation, (ii) dissolution or complete
liquidation of the Company, (iii) sale of all or substantially all of the assets
of the Company, or (iv) transaction (or series of related transactions) in which
there is a change in the beneficial ownership, directly or indirectly, of
securities of the Company representing 50% or more of the combined voting power
or value of the Company's then outstanding equity securities. The term "equity
securities" shall have the meaning set forth in Section 3(a)(11) of the
Securities Exchange Act of 1934.
(c) "Code": The Internal Revenue Code of 1986, as amended, together
with all regulations.
(d) "Committee": The Compensation Committee of the Board of
Directors, or if there is none, the Board of Directors.
(e) "Common Stock": The Common Stock of the Company, or such other
class or kind of shares or other securities as may be applicable pursuant to the
provisions of Section 4(b) hereof.
(f) "Company": Civic BanCorp, a California corporation.
(g) "Effective Date": The date on which the Plan shall become
effective as set forth in Section 10.
(h) "Fair Market Value": As applied to a specific date, the fair
market value of the Common Stock on such date as determined in good faith by the
Committee in the following manner:
1
<PAGE>
(1) If the shares of Common Stock are then listed on any national
or regional stock exchange, the Fair Market Value shall be the mean between the
high and low sales price on the date in question, or if there are no reported
sales on such date, on the last preceding date on which sales were reported;
(2) If the shares of Common Stock are not so listed, then the
Fair Market Value shall be the mean between the bid and ask prices quoted by a
market maker or other recognized specialist in the shares of Common Stock at the
close of the date in question;
(3) In the absence of either of the foregoing, the Fair Market
Value shall be determined by the Committee in its absolute discretion after
giving consideration to the book value, the earnings history and the prospects
of the Company in light of market conditions generally.
The Fair Market Value determined in such manner shall be final,
binding and conclusive on all parties.
(i) "ISO": A stock option intended to meet the requirements of an
"incentive stock option," as defined in Section 422 of the Code or any statutory
provision that may replace such Section.
(j) "NQSO": A stock option not intended to be an ISO and designated a
non-qualified stock option by the Committee.
(k) "Option": Any stock option, either an ISO or NQSO, granted from
time to time under the Plan.
(l) "Optionee": An employee or director of the Company or any of its
Subsidiaries who has been granted an Option, and those heirs, legatees or legal
representatives of such employee or director who may exercise an Option pursuant
to Section 6(b).
(m) "Parent": A "parent corporation" as defined in Section 424(e) of
the Code, including any parent corporation which becomes such after the
Effective Date of the Plan.
(n) "Plan": This Civic BanCorp 1994 Stock Option Plan, as it may be
amended from time to time.
(o) "Stock Option Agreement": A stock option agreement evidencing an
Option in a form adopted by the Committee pursuant to Section 9(b).
(p) "Subsidiary": A "subsidiary corporation" as defined in Section
424(f) of the Code, including any subsidiary corporation which becomes such
after the Effective Date of the Plan.
2
<PAGE>
3. ELIGIBILITY
-----------
(a) In General. Employees of the Company, its Parent or any
----------
Subsidiary are eligible to receive Options.
(b) More Than 10% Shareholders. No Option shall be granted to any
--------------------------
person who at the time of grant owns stock with more than 10% of the total
voting power of all classes of stock of the Company, its Parent or any
Subsidiary, computed pursuant to Sections 422(b)(6) and 424(d) of the Code,
unless at the time the Option is granted the exercise price is at least 110% of
the Fair Market Value of the shares of Common Stock subject to the Option, and
the Option is not exercisable after five years from the date of grant.
4. SHARES SUBJECT TO PLAN
----------------------
(a) Maximum Shares. The maximum number of shares of Common Stock that
--------------
may be subject to Options and which are reserved for the Plan is 979,125 shares
of Common Stock, subject to adjustment as provided in Section 4(b). If an
Option expires or terminates for any reason without having been fully exercised,
the unpurchased shares of Common Stock shall be added to the shares of Common
Stock available for Options. The unpurchased shares of Common Stock shall not
increase the maximum number of shares of Common Stock which may be subject to
Options. Notwithstanding the foregoing, the number of shares for which Options
may be granted and outstanding at any one time under the Plan may not exceed
979,125 less the number of shares for which options are outstanding at such time
under the Company's 1984 Stock Option Plan or its 1995 Non-Employee Director
Stock Option Plan.
(b) Adjustment of Shares and Price. In the event that the Common
------------------------------
Stock is changed into or exchanged for a different kind or number of shares of
stock or securities of the Company as the result of any stock dividend, stock
split, combination of shares, exchange of shares, merger, consolidation,
reorganization, recapitalization or other change in capital structure, then,
unless the change results in the termination of outstanding Options pursuant to
Section 6(c), the number of shares of Common Stock subject to this Plan and to
outstanding Options and the exercise price for such shares shall be equitably
adjusted by the Committee to prevent the dilution or enlargement of rights. Any
new stock or securities into which the Common Stock has been changed or for
which it has been exchanged shall be substituted for the Common Stock subject to
this Plan and to outstanding Options; provided, however, that fractional shares
may be deleted from the adjustment or substitution. Any determination made by
the Committee pursuant to this Section shall be conclusive.
5. GRANTING OF OPTIONS
-------------------
(a) Grants. The Committee shall from time to time, in its sole
------
discretion but subject to this Plan, determine:
(i) the persons who will be granted Options;
3
<PAGE>
(ii) the number of shares of Common Stock subject to each Option;
and
(iii) whether the Option will be an ISO or an NQSO.
New Options may not be granted after the tenth anniversary of the
Effective Date; provided, however, that the Board of Directors may, in its sole
discretion, direct the Committee to suspend or cease granting Options at an
earlier date. An Option shall be considered to be granted on the date on which
the Committee authorizes the grant, provided that the Optionee executes a Stock
Option Agreement in the form required by the Committee.
(b) Single Employee ISO Limit. The aggregate Fair Market Value
-------------------------
(determined at the time an Option is granted) of the shares of Common Stock or
other stock of the Company with respect to which ISOs granted to an employee are
exercisable for the first time by such employee during any calendar year (under
all Options and all other stock option plans of the Company or a Parent or any
Subsidiaries of the Company or any predecessor corporation of any such
corporations) shall not exceed $100,000, as required by Section 422(d) of the
Code, or any successor provision.
(c) Exercise Price. Subject to Section 3(b) and Section 4(b), the
--------------
exercise price per share of Common Stock subject to each ISO is determined
solely by the Committee but shall not be less than the Fair Market Value of the
shares of Common Stock on the date the Option is granted.
6. EXERCISE OF OPTIONS
-------------------
(a) Exercise Rights. Subject to Section 3(b) and Sections 6(b) and
---------------
(c), at the time of grant of the Option the Committee shall determine and set
forth in the Stock Purchase Agreement the time or times the Option may be
exercised, the period or periods during which the Option may be exercised, and
the number of shares subject to the Option, except that
(i) no Option shall be exercisable prior to the date the Plan is
approved by the Company's shareholders pursuant to Section 10;
(ii) no Option shall be exercisable after the expiration of 10
years from the date of grant; and
(iii) the calculation of the vesting period shall be suspended
during any leave of absence at the request, or with the approval, of the
Company, a Subsidiary, or a Parent.
(b) Termination of Employment. Subject to earlier termination of an
-------------------------
Option pursuant to Section 6(a)(ii), 6(c), or 10, the Optionee shall have the
right, within the following periods of time following termination of the
Optionee's employment with the Company or a Subsidiary or Parent, to exercise
the Optionee's Option for up to the same number of shares that the Optionee
would have been able to exercise on the date immediately preceding the date the
4
<PAGE>
Optionee's employment was terminated (without regard to any severance pay,
vacation pay or other payments upon termination):
(i) one year when termination is caused by the death or disability
(meaning the Optionee is unable to engage in any substantial gainful activity by
reason of a medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months); or
(ii) three months after termination for any reason other than the
death or disability of the Optionee.
In the event of the Optionee's death, the Optionee's heirs, legatees or
legal representatives shall have the right to exercise the Optionee's Option for
up to the same number of shares that the Optionee would have been able to
exercise on the date immediately preceding the date the Optionee's employment
was terminated (without regard to any severance pay, vacation pay or other
payments upon termination). To the extent the Option remains unexercised as of
the end of the applicable period of time following termination of the Optionee's
employment, the Option shall automatically terminate.
A leave of absence at the request, or with the approval, of the Company, a
Subsidiary, or a Parent shall not be deemed a termination for purposes of this
Section 6(b), so long as the period of such leave does not exceed 90 days, or,
if longer, so long as the Optionee's right to reemployment with the Company (or
a Subsidiary or Parent of the Company) is guaranteed by contract.
(c) Change of Ownership. In the event of a Change of Ownership consisting
-------------------
of a merger or consolidation which the Company will not be the surviving
corporation, each Option then outstanding shall become fully exercisable upon
adoption by the Board of Directors of a plan or arrangement for such
transaction; provided, the original vesting schedule shall be restored if the
transaction is not completed. If the surviving corporation does not provide for
the assumption of any Option or a substitution of a new option for any Option,
the Company may cancel any Option not exercised prior to or as of the
consummation of the Change in Ownership.
To the extent not inconsistent with any applicable law, the Company shall
use its best efforts to give at least 15 days advance notice of any proposed
Change of Ownership transaction to each Optionee who has outstanding unexercised
Options, which notice shall describe the transaction in general terms, and
notify the Optionee of any action which the Company and the surviving
corporation, if other than the Company, have decided to take pursuant to this
Section 6(c) with respect to that Optionee's Options.
(d) Cause. If the Optionee is determined by the Board of Directors to have
-----
committed an act of embezzlement, fraud, dishonesty or breach of fiduciary duty
to the Company, or to have deliberately disregarded the rules of the Company
which resulted in loss,
5
<PAGE>
damage or injury to the Company, or if the Optionee makes any unauthorized
disclosure of any of the secrets or confidential information of the Company,
induces any client or customer of the Company to break any contract with the
Company or induces any principal for whom the Company acts as agent to terminate
such agency relationship, or engages in any conduct which constitutes unfair
competition with the Company, or if the Optionee is removed from any office of
the Company by any regulatory agency, neither the Optionee nor the Optionee's
estate shall be entitled to exercise any Option whatsoever, whether or not after
termination of employment and whether the Optionee may receive any other
benefits, including severance or salary continuation payments for any period.
7. EXERCISE PROCEDURE AND PAYMENT
------------------------------
(a) Exercise Procedure. To exercise an Option, an Optionee must give
------------------
written notice to the Company in form satisfactory to the Company specifying the
number of whole shares, but in increments of not less than 100 (unless the
Optionee is exercising all Options held), that the Optionee elects to purchase.
The Company shall specify a closing date, which shall be not more than 30 days
after the date of the Optionee's notice, for the payment of the exercise price
and the issuance of the Common Stock being purchased. If any purchase of shares
requires the consent of or a filing with or notice to the Securities and
Exchange Commission or any other applicable federal or state agency charged with
the administration of applicable securities laws, the time period specified for
the closing shall be extended for such periods as the necessary consent, filing
or notice period is pending. The date of exercise shall be the date on which
the written notice is received by the Company. On or before the closing date,
the Optionee must deliver to the Company in form satisfactory to the Company all
documents required under the Plan, the Stock Option Agreement and applicable
laws and regulations with regard to the purchase of the shares of Common Stock,
together with full payment of the exercise price and payment in cash of such
amount as may be required to pay any and all applicable withholding taxes.
Payment of the exercise price shall be made either (i) in cash (including check,
bank draft or money order), or (ii) with the consent of the Committee and
subject to Section 7(b), by delivering shares of Common Stock already owned by
the Optionee, or (iii) by a combination of these forms of payment. Subject to
compliance with this Plan and with any requirements imposed by the Committee or
Company under this Plan, the Company shall issue and deliver to the Optionee on
the specified closing date or at the earliest practicable date after the
specified closing date one or more certificates for the number of shares of
Common Stock purchased. No Optionee shall have any rights of a shareholder with
respect to any shares of Common Stock until certificates for the shares have
been issued.
(b) Payment with Stock. With the consent of the Committee, the
------------------
Optionee may deliver Common Stock already owned by the Optionee, valued at Fair
Market Value as of the closing date in full or partial payment of the exercise
price of the shares of Common Stock subject to any Option; provided, however,
that no Common Stock already owned by the Optionee which is "statutory option
stock" as defined in Section 424(c)(3) of the Code may be delivered in payment
of the exercise price if the applicable holding period requirements for such
6
<PAGE>
Common Stock under Sections 422(a)(1) or 423(a)(1) of the Code have not been met
at the time of exercise.
(c) Cashless Exercise. With the consent of the Committee and subject
-----------------
to applicable holding periods after grant of an Option, an Optionee may engage
though a broker in a "cashless exercise," pursuant to which the Optionee sells
all or some of the shares acquired substantially simultaneously with the
exercise of the Option and remits to the Company net proceeds of the sale equal
to the exercise price, and in such case the Company shall cooperate with the
Optionee in this process; provided, the Optionee shall bear any costs of such
process.
8. RESTRICTIONS ON TRANSFERS; SECURITIES LAW COMPLIANCE
----------------------------------------------------
(a) Transferability of Options. No Option shall be transferable
--------------------------
otherwise than by will or under the laws of descent and distribution, nor shall
any Option be sold, pledged, assigned, hypothecated, or encumbered. Each Option
shall be exercisable, during the lifetime of the Optionee, only by the Optionee.
(b) Compliance with Securities and Other Laws. The Company may
-----------------------------------------
require investment or residency representations from an Optionee or impose other
restrictions prior and as a condition to issuance of shares to the Optionee or
transfer of shares by the Optionee. Shares of Common Stock shall not be issued
to any Optionee until the Company has obtained any required approval of any
governmental authority or of any stock exchange on which the Common Stock is
then listed and the Company and its counsel are satisfied that the proposed
issuance complies with all applicable federal and state securities and other
laws. Shares of Common Stock purchased under Options may not be transferred,
sold, pledged, hypothecated or encumbered except in accordance with all
applicable federal and state securities laws, rules and regulations and the
provisions of this Plan and the Stock Option Agreement, and the certificates for
the shares of Common Stock issued may bear a legend to that effect. Under no
circumstances shall the Company be obligated to register or qualify the shares
of Common Stock purchased under Options with the Securities and Exchange
Commission or with applicable state securities agencies.
9. ADMINISTRATION OF PLAN
----------------------
(a) The Committee. The Plan shall be administered by the Committee,
-------------
which shall act upon majority vote. The Committee shall consist of two or more
members of the Board of Directors. If at any time any class of equity securities
of the Company is registered pursuant to Section 12(b) or (g) of the Securities
Exchange Act of 1934, then, to the extent possible, the Committee shall consist
of two or more directors, all of whom shall, while serving on the Committee, be
"disinterested administrators," within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934 as at such time in effect or any other provision
that may replace the Rule and be in effect at such time.
7
<PAGE>
(b) Committee Authority. To clarify the Committee's powers and
-------------------
duties, but not to limit them, the Committee has full authority and power to:
(i) Interpret the provisions of the Plan and make rules and
regulations for the administration of the Plan which are not inconsistent with
the Plan;
(ii) Decide all questions of eligibility for Plan participation
and for the grant of Options;
(iii) Adopt forms of Stock Option Agreements and other documents
consistent with the Plan and, in the case of ISOs, with Section 422 of the Code;
(iv) Engage agents to perform legal, accounting and other
professional services as it may deem proper for administering the Plan; and
(v) Take other actions reasonably required or appropriate to
administer the Plan or to carry out the Committee activities contemplated by the
Plan.
(c) Indemnification. In addition to other rights of indemnification
---------------
as they may have as directors or as members of the Committee, the members of the
Committee shall be indemnified by the Company against the reasonable expenses,
including court costs and reasonable attorneys' fees, actually incurred in
connection with the defense of any action, suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the Plan or
any Option, and against all amounts paid by them in settlement or in
satisfaction of a judgment in any such action, suit or proceeding, except where
such indemnification is expressly prohibited by the applicable laws of the State
of California.
10. EFFECTIVE DATE
--------------
The Effective Date of the Plan shall be the date of its adoption by
the Board of Directors; provided, however, that no Option shall be exercisable
prior to the approval of the Plan by the holders of a majority of the shares of
Common Stock of the Company represented at a meeting of the shareholders at
which the Plan is considered. If shareholder approval is not obtained within
one year after the Effective Date, then the Plan and all Options shall
automatically terminate on the first anniversary of the Effective Date.
11. AMENDMENT AND TERMINATION
-------------------------
(a) The Plan.
--------
(i) Amendment. The Board of Directors may amend the Plan from
---------
time to time in its sole discretion; provided, however, that no amendment shall,
without the approval of the shareholders of the Company in the manner provided
in Section 10 and in accordance with Section 422 of the Code, (a) change the
class of persons eligible to receive
8
<PAGE>
Options or otherwise materially modify the requirements as to eligibility for
participation in the Plan; (b) increase the aggregate number of shares of Common
Stock which may be purchased upon exercise of Options and issued under the Plan;
or (c) materially increase the benefits accruing to Optionees under the Plan.
Any amendment in violation of these restrictions shall be void and of no effect.
Furthermore, no amendment shall impair the rights of any Optionee under any
Option, without the Optionee's consent.
(ii) Termination. The Plan shall terminate automatically on the
-----------
tenth anniversary of the Effective Date, and the Company may terminate the Plan
at any earlier time. Upon termination of the Plan, no additional Options shall
be granted; provided, however, that the terms of the Plan and Stock Option
Agreements shall continue in full force and effect with respect to outstanding
and unexercised Options and shares of Common Stock issued under the Plan.
(b) Options. Subject to the terms and conditions and the limitations
-------
of the Plan, the Committee may, in its sole discretion modify, extend or renew
outstanding Options or accept the surrender of outstanding Options (to the
extent not exercised) and authorize the granting of new Options in substitution
(to the extent not exercised). Notwithstanding the preceding sentence, no
modification of an Option shall, without the consent of the Optionee, impair any
rights or obligations under any Option previously granted.
12. MISCELLANEOUS
-------------
(a) Employment. Neither the establishment of the Plan or any
----------
amendments, nor the granting of any Options, shall in any way modify or affect,
or evidence any intention or understanding as to, the terms of employment of any
Optionee with the Company, or any Subsidiary or Parent, including the duration
of such employment. No person shall have a right to be granted Options or,
having been granted Options, to be selected again.
(b) Multiple Options. Subject to the terms and restrictions set forth
----------------
in the Plan, an Optionee may hold more than one Option.
(c) Written Notice. Any notices required under the Plan shall be in
--------------
writing and shall be given on the forms, if any, provided or specified by the
Committee. Written notice shall be effective upon actual receipt by the person
to whom such notice is to be given; provided, however, that in the case of
notices to Optionees and their assigns, heirs, legatees and legal
representatives, notice shall be effective upon delivery if delivered personally
or three business days after mailing, registered first class postage prepaid to
the last known address of the person
9
<PAGE>
to whom notice is given. Written notice shall be given to the Committee and the
Company at the following address or such other address as may be specified from
time to time:
Civic BanCorp
2101 Webster Street
Oakland, California 94612
Attn: Chief Financial Officer
(d) Applicable Law; Severability. The Plan shall be governed by and
----------------------------
construed in all respects in accordance with the laws of the State of California
and, with respect to ISOs, shall be interpreted and administered in accordance
with Section 422 of the Code. If any provision regarding an ISO is susceptible
of more than one interpretation, it shall be interpreted in a manner consistent
with the Option being treated as an ISO for federal income tax purposes. If any
provisions of the Plan shall be held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions shall continue to be fully
effective.
(e) Withholding Taxes. At or after the time an Option is exercised,
-----------------
in whole or in part, the Company may withhold from other payments due to
Optionee, and if the payments are not sufficient, upon request of the Company
the Optionee shall make adequate provision for federal and state income tax
withholding obligations, if any, of the Company, any Subsidiary or the Parent
which arise as a result of the exercise of the Option.
(f) Financial Information for Optionees. Not less often than
-----------------------------------
annually, the Company shall provide each Optionee with a copy of the annual
financial statements of the Company.
10
<PAGE>
EXHIBIT 5.1
Civic BanCorp
2101 Webster Street, 14th Floor September 20, 1999
Oakland, CA 94612
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Civic BanCorp, a California corporation
(the "Company"), in connection with the Registration Statement on Form S-8 filed
by the Company under the Securities Act of 1933, as amended, relating to the
registration of 296,625 shares of common stock, no par value (the "Shares"), and
options relating thereto, which are expected to be issued from time to time
pursuant to the Civic BanCorp 1994 Stock Option Plan as amended.
We are of the opinion that the Shares and options relating thereto
have been duly authorized and that the Shares, when issued pursuant to the terms
described in the Registration Statement and in conformity with applicable state
securities laws, will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
McCUTCHEN, DOYLE, BROWN & ENERSEN, LLP
By /s/ Thomas G. Reddy
------------------------------------
A Member of the Firm
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors
Civic BanCorp:
We consent to incorporation by reference in the registration statement on Form
S-8 of Civic BnaCorp of our report dated January 20, 1999 relating to the
consolidated balance sheets of Civic BanCorp and subsidiary as of December 31,
1998 and 1997, and the related consolidated statements of income, comprehensive
income, changes in shareholders' equity and cash flows for each of the years in
the three-year period ended December 31, 1998, which report appears in the
December 31, 1998, annual report on Form 10-K of Civic BanCorp.
/s/ KPMG LLP
September 20, 1999
San Francisco, California
<PAGE>
POWER OF ATTORNEY
Know all men by these presents that the undersigned does hereby make,
constitute and appoint Herbert C. Foster or Gerald J. Brown as the true and
lawful attorney-in-fact of the undersigned, with full power of substitution and
revocation, for and in the name, place and stead of the undersigned, to execute
and deliver the Registration Statement on Form S-8, and any and all amendments
thereto, including without limitation pre-effective and post-effective
amendments thereto; such Form S-8 and each such amendment to be in such form and
to contain such terms and provisions as said attorney or substitute shall deem
necessary or desirable; giving and granting unto said attorney, or to such
person as in any case shall be appointed pursuant to the power of substitution
herein given, full power and authority to do and perform any and every act and
thing whatsoever requisite, necessary or, in the opinion of said attorney or
substitute, able to be done in such matter as the undersigned might or could do
if personally present, hereby ratifying and confirming all that said attorney or
such substitute shall lawfully do or cause to be done by virtue hereof.
In witness whereof, the undersigned has duly executed this Power of
Attorney.
Dated: Sept. 20, 1999 /s/ C. Donald Carr
--------------------------------
C. Donald Carr
Dated: Sept. 20, 1999 /s/ David L. Cutter
--------------------------------
David L. Cutter
Dated: Sept. 20, 1999
/s/ Wayne S. Doiguchi
--------------------------------
Wayne S. Doiguchi
Dated: Sept. 20, 1999 /s/ John W. Glenn
--------------------------------
John W. Glenn
Dated: Sept. 20, 1999 /s/ Paul R. Handlery
--------------------------------
Paul R. Handlery
Dated: Sept. 20, 1999 /s/ James C. Johnson
--------------------------------
James C. Johnson
Dated: Sept. 20, 1999 /s/ Paul C. Kepler
--------------------------------
Paul C. Kepler
Dated: Sept. 20, 1999 /s/ John E. Lindstedt
--------------------------------
John E. Lindstedt
Dated: Sept. 20, 1999 /s/ Edward G. Mein
--------------------------------
Edward G. Mein
<PAGE>
Dated: Sept. 20, 1999 /s/ Dale D. Reed
--------------------------------
Dale D. Reed
Dated: Sept. 20, 1999 /s/ Edward G. Roach
--------------------------------
Edward G. Roach
Dated: Sept. 20, 1999 /s/ Barclay Simpson
--------------------------------
Barclay Simpson
