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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 94612-3043
---------------------------------------------------
(Address of principal executive office, including zip code)
Civic BanCorp Employee Stock Purchase Plan
------------------------------------------
(Full title of the Plan)
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>
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Title of seurities Amount to Proposed Proposes Amount of
to be registered be registered maximum offering maximum registration fee
price per share* aggregate offering*
---------------------------------------------------------------------------------------
Common Stock, 105,00 $13.75 $1,443,750 $401.37
no par value
- --------------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for the purpose of calculating this fee pursuant to Rules
457(c) and (h) under the Securities Act of 1933, as amended, based upon the
average of the high and low prices for shares of common stock of the registrant
as reported on The Nasdaq National Market on September 20, 1999
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Civic BanCorp Employee Stock Ownership Plan
("Plan") and an additional indeterminate number of shares or rights which by
reason of certain events specified in the Plan may become subject to the Plan.
<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 Document 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 (the "Registrant 10-K");
(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.
Item 4. Description of Securities.
Not applicable.
2
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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, San Francisco, California. Attorneys who
are partners of or employed by McCutchen, Doyle, Brown & Enersen LLP in the
aggregate own approximately 3,600 Shares.
Item 6. Indemnification of Directors and Officers.
The articles of incorporation of the Registrant limit liability of
directors for breaches of the duty of care. The Registrant's bylaws provides
indemnification in Article 5 for officers, employees and directors, to the
fullest extent permitted under Section 317 of the California Corporation Law.
Section 317 expressly grants to each California corporation the power to
indemnify its directors, officers and agents against judgments, fines,
settlements and expenses incurred in the performance of their duties. Rights to
indemnification beyond those provided by Section 317 may be valid to the extent
that such rights are authorized in the corporation's articles of incorporation.
Indemnification may not be made, however, if inconsistent with the articles of
incorporation, bylaws, shareholder resolutions or an agreement which prohibits
or limits indemnification.
With respect to all proceedings other than shareholder derivative
actions, Section 317 permits a California corporation to indemnify any of its
directors, officers or other agents only if such person acted in good faith and
in a manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. In the case of derivative
actions, a California corporation may indemnify any of its directors, officers
or agents only if such person acted in good faith and in a manner such person
believed to be in the best interests of the corporation and its shareholders.
Furthermore, in derivative actions, no indemnification is permitted (i) with
respect to any matter with respect to which the person to be indemnified has
been held liable to the corporation, except to the extent the court approves
indemnification of expenses; (ii) of amounts paid in settling or otherwise
disposing of a pending action without court approval; or (iii) of expenses
incurred in defending a pending action which is settled or otherwise disposed of
without court approval. To the extent that a director, officer or agent of a
corporation has been successful on the merits in defense of any proceeding for
which indemnification is permitted by Section 317, a corporation is obligated by
Section 317 to indemnify such person against expenses actually and reasonably
incurred in connection with the proceeding.
FDIC regulations prohibit the indemnification by insured banks and their
holding companies of their directors, officers and other institution-affiliated
persons for that portion of the costs sustained with regard to an administrative
or civil enforcement action commenced by any federal banking agency that results
in a final order or settlement pursuant to which a director, officer or other
party is assessed a civil money penalty, removed from office, prohibited from
participating in the affairs of an insured institution or required to cease and
desist from or to take an affirmative action under the Federal Deposit Insurance
Act. This regulation permits an institution to make an indemnification payment
to, or for the benefit of, a director, officer or other party only if the
institution's Board of Directors, in good faith, determines that the
3
<PAGE>
individual acted in good faith and in a manner that he or she believed to be in
the best interests of the institution and that the payment of indemnification
will not adversely affect the institution's safety and soundness. The director,
officer or other party must agree in writing to reimburse the institution for
any indemnification payments received should the proceeding result in a final
order being instituted against the individual assessing a civil money penalty,
removing the individual from office, or requiring the individual to cease and
desist from certain institutional activity.
The Registrant also maintains officers and director's liability
insurance for an annual aggregate maximum of $10,000,000.
Item 7. Exemption From Registration Claimed.
Not applicable.
ITEM 8. Exhibits
4.1 Civic BanCorp Employee Stock Purchase Plan.
5.1 Opinion of McCutchen, Doyle, Brown & Enersen LLP with respect to
legality.
23.1 Consent of KPMG LLP.
23.2 Consent of McCutchen, Doyle, Brown & Enersen LLP included in
Opinion filed as Exhibit 5.1
24.1 Power of Attorney
Item 9. Undertakings.
(a) Registrant hereby undertakes:
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement.
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (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;
4
<PAGE>
(iii) to include any material information with respect to the
Plan of distribution not previously disclosed in the Registration Statement or
any other material change to such information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the 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
Exchange Act that are incorporated by reference in the Registration Statement.
(2) 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.
(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 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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 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 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 this 20th day of September, 1999.
Civic BanCorp
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 in the
capacities and on the dates indicated.
Signature Title DATE
/s/ HERBERT C. FOSTER President and Chief
- -------------------------------- Executive Officer and
Director (Principal
Executive Officer) Sept. 20, 1999
/s/ GERALD J. BROWN Chief Financial Officer
- -------------------------------- (Principal Financial and
Gerald J. Brown Accounting Officer) Sept. 20, 1999
/s/ DONALD CARR Director Sept. 20, 1999
- --------------------------------
C. Donald Carr
/s/ DAVID L. CUTTER Director Sept. 20, 1999
- --------------------------------
David L. Cutter
/s/ WAYNE E S. DOIGUCHI Director Sept. 20, 1999
- --------------------------------
Wayne S. Doiguchi
/s/ JOHN W. GLENN Director Sept. 20, 1999
- --------------------------------
John W. Glenn
6
<PAGE>
/s/ PAUL R HANDLERY Director Sept. 20, 1999
- --------------------------------
Paul R. Handlery
/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/ BARLAY SIMPSON Director Sept. 20, 1999
- --------------------------------
Barclay Simpson
7
<PAGE>
Exhibit Index
-------------------------------------------------
4.1 Civic BanCorp Employee Stock Purchase Plan.
5.1 Opinion of McCutchen, Doyle, Brown & Enersen LLP with respect to
legality.
23.1 Consent of KPMG LLP.
23.2 Consent of McCutchen, Doyle, Brown & Enersen LLP included in Opinion
filed as Exhibit 5
24.1 Powers of Attorney
E-1
8
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EXHIBIT 4.1
CIVIC BANCORP
EMPLOYEE STOCK PURCHASE PLAN
As of October 1, 1999
ARTICLE 1 - PURPOSE OF THE PLAN
The Company has established this Plan to provide eligible employees of
the Company and its Subsidiaries a method to purchase shares of common stock of
the Company by payroll deduction at a discount. The Plan is intended to qualify
as an "employee stock purchase plan" under Section 423 of the Code and shall be
construed and operated consistently with the requirements of that Section.
ARTICLE 2 - DEFINITIONS
2.1 "Beneficiary" means the person designated by the Participant on a
form provided by and acceptable to the Committee to receive the Participant's
Payroll Deduction Account in the event of his death. In the absence of any such
designation, "Beneficiary" shall mean the Participant's estate.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
2.4 "Commencement Date" means the January 1 or July 1, as the case
may be, on which a particular Offering begins.
2.5 "Committee" means the committee of persons appointed by the
Company for the purpose of administering the Plan.
2.6 "Company" means, a California Civic BanCorp corporation.
2.7 "Designated Person" means the person designated by the Committee
to receive any forms or agreements required or permitted under the Plan. More
than one person may be designated by the Committee. Different persons may be
designated for different forms or agreements. The Designated Person may be an
individual or an entity. The Committee shall notify Participants in writing of
the identity of each Designated Person and the forms or agreements to be sent to
each such person.
2.8 "Effective Date" means October 1, 1999.
2.9 "Ending Date" means the June 30 or December 31, as the case may
be, on which a particular Offering concludes.
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2.10 "Enrollment Agreement" means the enrollment form acceptable to
the Committee that a Participant who wishes to participate in the Plan must
submit to the Designated Person prior to the Commencement Date.
2.11 "Offering" means each six (6) consecutive month offering period
for the purchase and sale of Shares under the Plan.
2.12 "Participant" means an employee who has satisfied the eligibility
requirements of Article 3 and who has complied with the requirements of Article
4.
2.13 "Pay" means and includes (i) a Participant's regular salary or
earnings; (ii) a Participant's overtime pay; and (iii) bonuses designated by the
Committee as being eligible to be used to purchase Shares under this Plan. "Pay"
shall not include any other compensation, taxable or otherwise including,
without limitation, employee tips, moving/relocation expenses, imputed income,
option income, tax-gross-ups and taxable benefits.
2.14 "Payroll Deduction Account" shall mean the Company's bookkeeping
entry that reflects the amount deducted from each Participant's Pay for the
purpose of purchasing Shares under the Plan, reduced by amounts refunded to the
Participant and amounts applied to purchase Shares hereunder. Amounts deducted
from each Participant's Pay may be commingled with the general funds of the
Company. No interest shall be paid or allowed on a Participant's payroll
deductions.
2.15 "Plan" means the CivicBank of Commerce Employee Stock Purchase
Plan.
2.16 "Purchase Price" means the price per Share as set forth in
Article 6 paid by a Participant to acquire Shares hereunder.
2.17 "Shares" means shares of the Company's common stock.
2.18 "Subsidiaries" shall mean any present or future domestic or
foreign corporation that would be a "subsidiary corporation" of the Company as
that term is defined in Section 424(f) of the Code.
2.19 "Withdrawal" means a Participant's election to withdraw from an
Offering pursuant to Article 11.
ARTICLE 3 - ELIGIBILITY
Any regular employee of the Company or any of its Subsidiaries shall
be eligible to participate in the Plan as of the Commencement Date coinciding
with or next following the completion of twelve (12) consecutive months of
employment following his date of hire. A regular employee is an individual who
works more than 20 hours a week for the Company or any of its Subsidiaries. For
the purpose of determining an employee's initial eligibility, an employee's
period of employment with any business entity, the assets, business or stock of
which has been acquired, in whole or in part by the Company or any of its
Subsidiaries through purchase, merger or otherwise ("Acquired Business"), shall
be taken into account. An
2
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employee's period of employment with the Company, any of its Subsidiaries, or
any Acquired Business prior to the Effective Date shall be taken into account.
If an employee terminates employment with the Company or any of its Subsidiaries
for any reason and is later rehired after thirty (30) days, such employee,
regardless of whether he is eligible to participate in the Plan prior to his
termination, shall be treated as a new employee and will be eligible to
participate in the Plan as of the Commencement Date coinciding with or next
following the completion of twelve (12) consecutive months of employment
following his date of rehire. For purposes of this Article, an employee's
employment with the Company or any of its Subsidiaries shall not be considered
interrupted or terminated in the case of a leave of absence or suspension,
provided that such leave is approved by the Company or the employee's
reemployment with the Company or any of its Subsidiaries upon the expiration of
such leave is guaranteed by contract or statute.
ARTICLE 4 - PARTICIPATION
An eligible employee may become a Participant by completing an
Enrollment Agreement provided by the Company and filing it with the Designated
Person prior to the deadline set by the Committee that precedes the Commencement
Date of the Offering to which it relates. Participation in one Offering under
the Plan shall neither limit, nor require, participation in any other Offering;
provided, however, that at the conclusion of each Offering, the Company shall
automatically re-enroll each Participant in the next Offering at the same rate
of payroll deduction, unless the Participant has advised the Designated Person
otherwise in a written form acceptable to the Committee.
ARTICLE 5 - OFFERINGS
The first Offering shall be for three (3) consecutive months
commencing on October 1, 1999. Each Offering thereafter shall be for six (6)
consecutive months, commencing on each subsequent January 1 and July 1, and
shall continue until the Plan is terminated in accordance with Section 15.5.
ARTICLE 6 - PURCHASE PRICE
The "Purchase Price" per Share to a Participant pursuant to an
Offering shall be 85% of the fair market value of such Share on a day within
five business days of the Ending Date of such Offering as selected by the
Committee. "Fair market value" for this purpose shall mean the closing price as
reported on the National Association of Securities Dealers Automated Quotation
National Market System (the "NASDAQ-NMS") or, if the Shares are not reported on
the NASDAQ-NMS, on the stock exchange, market, or system on which the Shares are
traded as reported that is designated by the Committee as controlling for
purposes of the Plan. In the event shares are not so traded or reported, no
purchase shall be made until a trade is reported on a successive business day.
ARTICLE 7 - LIMITATIONS ON SHARE OWNERSHIP
7.1 The maximum number of Shares that a Participant may acquire
during an Offering shall be the amount credited to such Participant's Payroll
Deduction Account as of the Ending Date of such Offering, divided by the
Purchase Price per Share.
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7.2 The maximum, aggregate number of Shares that will be offered
under the Plan is one hundred thousand (100,000). If, as of any Ending Date, the
total number of Shares to be purchased exceeds the number of Shares then
available under this Article (after deduction of all Shares that have been
previously purchased under the Plan), the Committee shall make a pro rata
allocation of the Shares that remain available in as nearly a uniform manner as
shall be practicable and as it shall determine, in its sole judgment, to be
equitable. In such event, any amount credited to each Participant's Payroll
Deduction Account that remains after purchase of such reduced number of Shares
shall be refunded as soon as reasonably practicable, and no further payroll
deductions or Offerings shall occur under this Plan unless and until additional
shares are authorized.
7.3 Notwithstanding anything herein to the contrary, the maximum
number of Shares that may be purchased by any Participant as of any Ending Date
shall be reduced to that number which, when the voting power or value thereof is
added to the total combined voting power or value of all classes of shares of
capital stock of the Company or its Subsidiaries the person is already deemed to
hold (excluding any number of Shares which such person would be entitled to
purchase under the Plan), is one share less than five percent (5%) of the total
combined voting power or value of all classes of shares of capital stock of the
Company or its Subsidiaries. For purposes of the foregoing, the rules of Section
424(d) of the Code shall apply. In addition, no Participant shall be allowed to
purchase Shares as of any Ending Date to the extent such purchase would cause
the sum of the fair market value of all Shares purchased by such Participant
under this Plan and any other plan qualified under Code Section 423 during the
calendar year during which such Ending Date occurs to exceed $10,000. For
purposes of the preceding sentence, "fair market value" shall be the value as of
the date of grant of each such Offering and the rules of Section 423(b)(8) of
the Code shall apply.
ARTICLE 8 - PAYROLL DEDUCTIONS
8.1 At the time the Enrollment Agreement is filed with the Designated
Person and for so long as a Participant participates in the Plan, each
Participant may authorize the Company to make payroll deductions of either (a) a
fixed dollar amount per pay period; or (b) a whole percentage (in 1% increments)
of Pay per pay period, provided, however, that no payroll deduction shall exceed
the lesser of $10,000 per year or 20% of Pay per pay period. The Committee, in
its discretion, may establish from time to time a minimum fixed dollar deduction
that a Participant must authorize under this Plan; provided, however, that a
Participant's existing rights under any Offering that has already commenced may
not be adversely affected thereby.
8.2 The amount of each Participant's payroll deductions shall be
credited to his Payroll Deduction Account. No interest or other amount shall be
credited to a Payroll Deduction Account.
8.3 Commencing with respect to the first payroll period beginning on
or after the Plan's Effective Date, a Participant's authorized payroll
deductions shall be deducted from each paycheck paid during an Offering and
shall continue until changed by the Participant or by amendment or termination
of this Plan. A Participant may elect to increase or decrease his authorized
payroll deductions effective as of January 1 or July 1 of each year upon prior
notice
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acceptable to the Company. Except for a Withdrawal and discontinuance of payroll
deductions permitted under this Plan, no change in payroll deductions may be
effective on a date other than January 1 or July 1, including without
limitation, any change in the amount or rate of payroll deductions during an
Offering.
8.4 With respect to each payroll period during an Offering, a
Participant's authorized payroll deductions shall be deducted from Pay only
after all other discretionary and nondiscretionary payroll deductions
attributable to such Participant have first been deducted from Pay for such
period. To the extent a Participant's Pay after such discretionary and
nondiscretionary payroll deductions have been deducted is less than the
Participant's authorized payroll deductions hereunder, the Participant's
remaining Pay, if any, shall be credited on his behalf to the Payroll Deduction
Account and the difference between the authorized and actual deduction shall be
disregarded and never deducted from payroll or credited to the Payroll Deduction
Account.
ARTICLE 9 - PURCHASE OF SHARES
9.1 As of the Ending Date of each Offering, each Participant shall be
deemed to have elected to purchase at the Purchase Price, the maximum number of
Shares that may be purchased with such Participant's Payroll Deduction Account
at the Purchase Price in accordance with the terms of this Plan, unless the
Designated Person has received timely and proper notice of a Withdrawal. The
Company or its Subsidiaries shall contribute the difference between the Purchase
Price to the Participant and the cost to acquire Shares on the open market. The
Shares purchased hereunder will be transferred to Participant in accordance with
Article 10. Any cash remaining in the Participant's Payroll Deduction Account
which is not applied toward the purchase of Shares shall be carried forward and
applied in subsequent Offerings. No Participant shall have any rights of a
shareholder with respect to any Shares until the Shares have been purchased in
accordance herewith. Shares purchased hereunder shall be Shares acquired on the
open market or, if expressly approved by the Board of Directors, newly issued
shares acquired from the Company.
9.2 Notwithstanding the preceding provisions of this Article or any
other provision to the contrary, no Shares shall be purchased hereunder until
the Plan is approved by the stockholders of the Company as provided in Section
15.1.
ARTICLE 10 - EVIDENCE OF OWNERSHIP OF SHARES
Following the Ending Date of each Offering, the Shares that are
purchased by each Participant shall be credited to an account with Chase Mellon
Shareholder Services established at Company's expense. This account will be
under the control of the Participant to hold, liquidate or transfer.
ARTICLE 11 - WITHDRAWAL
11.1 A Participant may "Withdraw" from an Offering, in whole but not
in part, by notifying the Designated Person, in writing on a form acceptable to
the Committee, in which
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event (i) the Participant's payroll deductions shall stop as soon as is
reasonably practicable following receipt of such notice by the Designated
Person, (ii) the Company shall refund the amount credited to the Participant's
Payroll Deduction Account as soon as reasonably practicable, and (iii) no Shares
shall be purchased on behalf of the Participant with respect to such Offering.
The notice described in this Section must be received by the Designated Person
prior to the deadline set by the Committee, provided that if the Committee fails
to set such a deadline, such notice must be received by the Ending Date (or the
immediately preceding business day if the Ending Date is not a business day).
11.2 An eligible employee who has previously withdrawn from the Plan
may re-enter by complying with the Participation requirements. Upon compliance
with such requirements, an employee's re-entry into the Plan will be effective
as of the Commencement Date coinciding with or next following the satisfaction
of such requirements.
11.3 A Participant hereunder may elect at any time on a form
acceptable to the Committee to have any whole Shares transferred to the
Participant's individual brokerage account established at the Participant's
expense.
ARTICLE 12 - RIGHTS NOT TRANSFERABLE
No Participant shall be permitted to sell, assign, transfer, pledge,
or otherwise dispose of or encumber such Participant's interest in the Payroll
Deduction Account or any rights to purchase or to receive Shares under the Plan
other than by will or the laws of descent and distribution, and such rights and
interests shall not be subject to, a Participant's debts, contracts, or
liabilities. If a Participant purports to make a transfer, or a third party
makes a claim in respect of a Participant's rights or interests, whether by
garnishment, levy, attachment or otherwise, such purported transfer or claim
shall be treated as a Withdrawal.
ARTICLE 13 - TERMINATION OF EMPLOYMENT
As soon as reasonably practicable following termination of a
Participant's employment with the Company or any of its Subsidiaries for any
reason whatsoever, including, but not limited to, by reason of death, disability
or retirement, the amount credited to the Payroll Deduction Account on behalf of
the Participant shall be returned to the Participant or the Participant's
Beneficiary, as the case may be, subject to Section 15.1.
ARTICLE 14 - ADMINISTRATION
The Plan shall be administered by the Committee, which may engage such
persons, entities or agents as it shall deem advisable to assist in the
administration of the Plan. The Company may from time to time appoint or dismiss
members of the Committee. A majority of the members of the Committee shall
constitute a quorum and the acts of a majority of the members present at a
meeting or the consent in writing signed by all the members of the Committee
shall constitute the acts of the Committee. The Committee shall be vested with
full authority to make, administer, and interpret such rules and regulations as
it deems necessary to administer the Plan, and any determination, decision, or
action of the Committee in connection
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with the construction, interpretation, administration or application of the Plan
shall be final, conclusive, and binding upon all parties, including the Company,
the Participants and any and all persons who claim rights or interests under or
through a Participant. The Committee may delegate all or part of its authority
to one or more of its members.
ARTICLE 15 - MISCELLANEOUS
15.1 Approval of the Plan. Notwithstanding any provision in this Plan
to the contrary, if the Plan is not approved by the stockholders of the Company
within twelve (12) months after the Effective Date of the Plan, the balance of
each Participant's Payroll Deduction Account shall be refunded in its entirety,
without interest, as soon as reasonably practicable. If an eligible employee
terminates employment after the Ending Date of any Offering but prior to the
approval of the Plan by the stockholders of the Company, then such employee may
elect in writing on a form acceptable to the Committee, which form must be
received by the Designated Person by the deadline set by the Committee, to have
the balance credited to the Payroll Deduction Account on his behalf as of any
such Ending Date retained and applied to purchase Shares following the
subsequent approval of the Plan by the stockholders of the Company, or returned
to the employee at a later date in the event the stockholders do not approve the
Plan. If such election is not timely made or if such employee elects to receive
cash, such employee shall receive the balance credited to the Payroll Deduction
Account on his behalf as of any such Ending Date as soon as reasonably
practicable after the passage of such deadline or making such election.
15.2 Amendment or Discontinuance of the Plan. The Board shall have the
right to amend, modify or terminate the Plan at any time without notice,
provided that (i) no Participant's existing rights under any Offering that is in
progress may be adversely affected thereby, and (ii) in the event that the Board
desires to retain the favorable tax treatment under Sections 421 and 423 of the
Code, no such amendment of the Plan shall increase the number of Shares that
were reserved for issuance hereunder unless the Company's shareholders approve
such an increase.
15.3 Changes in Capitalization. In the event of reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, offerings of rights, or any other change in the capital structure
of the Company, the number, kind and price of the Shares that are available for
purchase under the Plan and the number of Shares that an employee is entitled to
purchase shall be automatically adjusted to reflect the change in capital
structure; provided, however, that the Board shall retain the right to modify
any such adjustment in the manner it deems appropriate.
15.4 Notices. All notices or other communications by a Participant
under or in connection with the Plan, including but not limited to Enrollment
Agreements, shall be deemed to have been duly given when received by the
Designated Person in the form specified by the Committee.
15.5 Termination of the Plan. This Plan shall terminate at the
earliest of the following:
7
<PAGE>
(a) The date of the filing of a "Statement of Intent to
Dissolve" by the Company or the effective date of a merger or consolidation
wherein the Company is not to be the surviving corporation, which merger or
consolidation is not between or among corporations affiliated with the
Company;
(b) the date the Board acts to terminate the Plan; and
(c) the date when all of the Shares that were reserved for
issuance hereunder have been purchased.
Prior to termination of the Plan, the Company may change the Ending Date of a
pending Offering. Upon termination of the Plan, the Company shall refund to each
Participant the remaining amount credited to each Participant's Payroll
Deduction Account after all purchases have been made.
15.6 Notice of, and Limitations on Sale of Stock Purchased Under the
Plan. The Plan is intended to provide Shares for investment and not for resale.
The Company does not, however, intend to restrict or influence the conduct of
any employee's affairs beyond established Company policies. A current or former
Participant may, therefore, sell Shares that are purchased under the Plan at any
time at his expense, subject to compliance with any applicable federal or state
securities laws and Company policies. Each current and former Participant
assumes the risk of any market fluctuations in the price of the Shares. Each
current or former Participant must notify the Company of any disposition of
Shares purchased under this Plan that is described in Section 423(a)(1) of the
Code, which is any disposition within two years after the date of grant of the
option to purchase or any disposition within one year after the transfer of the
Shares to him.
15.7 Governmental Regulation. The Company's obligation to sell and
deliver Shares under this Plan is subject to any governmental approval that is
required in connection with the authorization, issuance or sale of such Shares.
15.8 No Employment Rights. This Plan does not, directly or
indirectly, create in any employee or class of employees any right with respect
to continuation of employment by the Company, and it shall not be deemed to
interfere in any way with the Company's right to terminate, or otherwise modify,
an employee's employment at any time.
15.9 Governing Law. The law of the state of California shall govern
all matters that relate to this Plan except to the extent it is superseded by
the laws of the United States.
15.10 Text of Plan Documents Controls. Titles of Articles and Sections
in this Plan are inserted for convenience of reference only and in the event of
any conflict, the text of this instrument, rather than such titles, shall
control.
15.11 Gender and Plurals. Any words herein used in the masculine shall
read and be construed in the feminine or the neuter wherever they would so
apply. Words in the singular shall be read and be construed as though used in
the plural in all cases where they would so apply.
8
<PAGE>
IN WITNESS WHEREOF, CivicBank of Commerce has caused this Plan to be
adopted effective as of October 1, 1999.
CIVICBANK OF COMMERCE
"Company"
By: /s/ Herbert C. Foster
Chairman and Chief Executive Officer
9
<PAGE>
EXHIBIT 5.1
September 20, 1999
Civic BanCorp
2101 Webster Street, 14th Floor
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 105,000 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 Employee Stock Purchase Plan.
We are of the opinion that the Shares 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
