SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 1, 1999
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NORTH BAY BANCORP
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(Exact name of registrant as specified in its charter)
California N/A 68-0434802
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(State or other jurisdiction of (Commission (IRS Employer
incorporation) File Number) Identification No.)
1500 Soscol Avenue, Napa, California 94559-3045
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (707) 257-8585
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
(a) On November 1, 1999, Vintage Merger Co. (a wholly-owned subsidiary
of Registrant), merged with and into The Vintage Bank resulting in the
shareholders of the Bank becoming the shareholders of the Registrant, and
further resulting in the Bank becoming the wholly-owned subsidiary of the
Registrant. The reorganization took place in accordance with a Plan of
Reorganization and Merger Agreement entered into as of July 30, 1999 by and
among Registrant, the Bank and Merger Co.
A summary description of the transaction is as follows:
Description of the Reorganization
North Bay Bancorp was organized as a California corporation at the
direction of the Board of Directors of the Bank for the purpose of becoming a
bank holding company. The Board of Directors of the Bank also directed the
organization of Merger Co., under the laws of the State of California to
facilitate the acquisition of the outstanding shares of the Bank's Common Stock
by Bancorp. Bancorp owned all of Merger Co.'s Common Stock. The reorganization
was accomplished by the merger of Merger Co. with and into the Bank pursuant to
the terms of the Plan of Reorganization. At the effective date of the merger of
Merger Co. into the Bank, the shares of Common Stock of the corporate parties to
the Plan of Reorganization were converted as follows:
(1) Each share of the Bank's outstanding Common Stock was
converted into one share of Bancorp's Common Stock.
(2) Merger Co. disappeared, the shares of Merger Co.'s Common
Stock outstanding immediately prior to the merger were converted into
shares of the Bank, and Bancorp then owned all the outstanding shares
of the Bank's Common Stock.
(3) The shareholders of the Bank became the shareholders of
Bancorp. The rights of the holders of the Common Stock of Bancorp are
substantially the same as the rights of the holders of the Bank's
Common Stock prior to the reorganization; however, as shareholders of
Bancorp they are not entitled to vote on matters requiring approval of
the Bank's shareholders.
The reorganization was subject to the approval of the Federal Reserve
Bank of San Francisco and the California Commissioner of Financial Institutions.
Federal Reserve approval was received on October 4, 1999.
Approval of the Commissioner was received on October 6, 1999.
Implementation of the reorganization also required the affirmative vote
of the holders of a majority of the outstanding shares of the Bank's Common
Stock as well as a majority of the outstanding shares of Common Stock of Bancorp
and of Merger Co. The requisite shareholder approvals were obtained on October
13, 1999.
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Bank shareholders were not entitled to dissenters' rights in connection
with the reorganization.
Shares of Bancorp's common stock issued in consideration of the
reorganization were issued pursuant to exemption from registration provided by
Section 3(a)(12) of the Securities Act of 1933, as amended.
Federal and State Tax Consequences of the Reorganization.
The Board of Directors of the Bank had the right to terminate the Plan of
Reorganization unless an opinion of counsel, satisfactory in form to all
parties, is received with respect to the tax consequences of the reorganization.
A satisfactory opinion was received from Lillick & Charles LLP, attorneys for
Bancorp and the Bank, substantially to the effect that:
o The proposed merger of Merger Co. into the Bank will constitute a
reorganization within the meaning of Section 368(a)(1)(A) and Section
368(a)(2)(E) of the Internal Revenue Code of 1986, as amended (the "Code").
o The basis of the assets of Merger Co. acquired by the Bank will be the same
in the hands of Bank as the basis of such assets in the hands of Merger Co.
immediately prior to the merger.
o The holding period of the assets of Merger Co. in the hands of the Bank
will include the period during which such assets were held by Merger Co.
o Unless Bancorp elects otherwise pursuant to Treas. Reg. Section
1.358-6(c)(2)(ii), the basis of the Bank shares in the hands of Bancorp
will equal its basis in Merger Co. stock immediately before the merger
adjusted as if the Bank had merged into Merger Co. as provided in Treas.
Reg. Section 1.358-6(c)(2)(i).
o No gain or loss will be recognized by the shareholders of the Bank upon the
exchange of their Bank stock solely for Bancorp stock, and the basis in the
Bancorp stock received will be the same as that in the Bank prior to the
exchange of stock.
o No gain or loss will be recognized by Merger Co. on the transfer of its
assets to the Bank in exchange for the Bank's Common Stock.
o No gain or loss will be recognized by the Bank upon the receipt of the
assets of Merger Co. in exchange for the Bank's Common Stock, or upon the
deemed distribution of Bancorp stock by the Bank to its shareholders.
o Bancorp will recognize no gain or loss upon the receipt of the Bank's
Common Stock in exchange for Merger Co.'s Common Stock.
o Where shareholders held their Bank stock as a capital asset, the period of
time for which they have held such stock shall be included in their holding
period for Bancorp stock received in the exchange.
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The California tax consequences should be substantially similar to the
federal income tax consequences described above
Deregistration of the Bank's Common Stock
The Bank was subject to the periodic reporting requirements of the
Securities Exchange Act of 1934, and in accordance with the Exchange Act filed
reports and proxy statements with the Board of Governors of the Federal Reserve
System. After consummation of the reorganization, the only shares of the Bank's
Common Stock outstanding are the 50 shares owned by Bancorp. Accordingly, the
Bank is entitled to, and in fact will, deregister its Common Stock and terminate
its obligations, under the Exchange Act, to file reports and proxy statements
with the Board of Governors. Additionally, after consummation, there no longer
is any trading in the Bank's Common Stock. However, the Common Stock of Bancorp,
will be traded in the over-the-counter market, and Bancorp will be subject to
the periodic reporting requirements of the Exchange Act.
Operations under Bancorp
After consummation of the reorganization, the business of the Bank will
be carried on as a subsidiary of Bancorp. Administrative expenses and taxes
incurred in the operation of Bancorp will be in addition to those of the Bank.
The reorganization is not expected to result in any significant change in
executive compensation and benefits.
Directors
The number of authorized directors of the Bank is presently fixed at
eleven (11).
For purposes of facilitating the preliminary stages of the
reorganization, the Bylaws of Bancorp originally authorized one (1) director.
Prior to consummation of the reorganization, the Bylaws of Bancorp were amended
to authorize not less than six (6) nor more than eleven (11) directors with the
exact number within that range to be fixed by resolution of the Board of
Directors. The number of directors of Bancorp was initially be fixed at eight
(8). Bank Directors Terry L. Robinson, Thomas F. Malloy, Thomas H. Lowenstein,
Harlan R. Kurtz, James Tidgewell, and David B. Gaw as well as Conrad W. Hewitt
and Richard S. Long were appointed to serve as directors of Bancorp until the
year 2000 annual meeting of shareholders of Bancorp and until their successors
are elected and qualified.
Executive Officers
The following officers of the Bank have been appointed as the initial
officers of Bancorp:
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Position Held Position Held
Name With Bank with Holding Company
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Thomas F. Malloy........ Chairman of the Board Chairman of the Board
Terry L. Robinson....... President, Chief President and Chief
Executive Officer Executive Officer
Kathi Metro............ Executive Vice Executive Vice President
President and and Credit
Senior Loan Officer Administrator
Lee-Ann Almeida......... Vice President and Chief Chief Financial Officer
Financial Officer
Wyman G. Smith III...... Corporate Secretary Corporate Secretary
(b) Prior to the acquisition described in Item 5(a) of this Report, the
securities of the Bank were registered pursuant to Section 12(g) of the Exchange
Act, and the Bank filed reports required by Section 13 of the Exchange Act with
the Board of Governors pursuant to Section 12(i) of the Exchange Act.
As stated in Item 5(a), upon consummation of the reorganization, all
shareholders of the Bank became shareholders of the Registrant on a share for
share basis. Accordingly, the securities of Registrant became registered
pursuant to Section 12(g) of the Exchange Act as of November 1, 1999.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
(2) A copy of the Plan of Reorganization and Merger Agreement certified
by the California Secretary of State as of November 1, 1999 is attached to this
Report as Exhibit A and incorporated by reference into this Report.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: November 12, 1999 NORTH BAY BANCORP
/s/ Terry L. Robinson
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Terry L. Robinson, President and Chief
Executive Officer (Principal Executive Officer)
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EXHIBIT A
PLAN OF REORGANIZATION AND MERGER AGREEMENT
This Plan of Reorganization and Merger Agreement (the "Merger
Agreement") is entered into as of July 30, 1999 by and among The Vintage Bank
(the "Bank"), Vintage Merger Co., ("Subsidiary"), and North Bay Bancorp
("Holding Company").
RECITALS AND UNDERTAKINGS
A. Bank is a California banking corporation with its principal
office in the City of Napa, Napa County, State of California.
Subsidiary and Holding Company are corporations duly organized
and existing under the laws of the State of California with their
principal offices in the City of Napa, Napa County, State of
California.
B. As of the date hereof, Bank has 2,000,000 shares of no par value
common stock authorized, and 1,531,276 of such shares are
outstanding. As of the date hereof Bank has 500,000 shares of no
par value preferred stock authorized, none of which are issued
and outstanding.
C. As of the date hereof, Subsidiary has 1,000,000 shares of no par
value common stock authorized and 500,000 shares of no par value
preferred stock authorized. Immediately prior to the Effective
Date (as defined below), 50 shares of such common stock will be
issued and outstanding, all of which will be owned by the Holding
Company.
D. As of the date hereof, Holding Company has 10,000,000 shares of
no par value common stock authorized and 500,000 shares of no par
value preferred stock authorized. Immediately prior to the
Effective Date (as defined below), 100 shares of such common
stock will be issued and outstanding.
AGREEMENT
General
The Merger. On the Effective Date (as defined hereinbelow), Subsidiary shall be
merged into Bank, which shall be the surviving corporation (the "Surviving
Corporation"). The Surviving Corporation shall be a subsidiary of Holding
Company, and its name shall continue to be The Vintage Bank.
Effective Date. The merger described herein shall become effective, and actions
to consummate such merger shall commence, at the close of business on the day
upon which an executed counterpart of this Merger Agreement shall have been
filed with the
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Secretary of State of the State of California in accordance with Section 1103 of
the California General Corporation Law (the "Effective Date").
Articles of Incorporation and Bylaws of the Surviving Corporation. On the
Effective Date, the Articles of Incorporation of Bank, as in effect immediately
prior to the Effective Date, shall be and remain the Articles of Incorporation
of the Surviving Corporation until amended; the Bylaws of Bank, as in effect
immediately prior to the Effective Date, shall be and remain the Bylaws of the
Surviving Corporation until amended; the certificate of authority of Bank issued
by the Commissioner of Financial Institutions of the State of California shall
be and remain the certificate of authority of the Surviving Corporation; Bank's
deposit insurance coverage by the Federal Deposit Insurance Corporation shall be
and remain the deposit insurance of the Surviving Corporation; and the Surviving
Corporation shall remain a member of the Federal Reserve System.
Directors and Officers of the Surviving Corporation. On the Effective Date, the
directors and officers of Bank immediately prior to the Effective Date shall
become the directors and officers of the Surviving Corporation. The directors of
the Surviving Corporation shall serve until the next annual meeting of
shareholders of the Surviving Corporation or until such time as their successors
are elected and qualified.
Effect of the Merger.
Assets and Rights. On the Effective Date and thereafter, all rights,
privileges, franchises and property of Bank and Subsidiary and all debts and
liabilities due or to become due to Bank and Subsidiary including things in
action and every interest or asset of conceivable value or benefit, shall be
deemed fully and finally and without any right of reversion transferred to and
vested in the Surviving Corporation without further act or deed; and the
Surviving Corporation shall have and hold the same in its own right as fully as
the same was possessed and held by Bank or Subsidiary.
Liabilities. On the Effective Date and thereafter, all debts,
liabilities and obligations due or to become due from, and all claims and
demands for any cause existing against, Bank and Subsidiary shall be and become
the debts, liabilities or obligations of, or the claims or demands against, the
Surviving Corporation in the same manner as if the Surviving Corporation had
itself incurred or become liable for them.
Creditors' Rights and Liens. On the Effective Date and thereafter, all
rights of creditors of Bank and Subsidiary and all liens upon the property of
Bank and Subsidiary shall be preserved unimpaired, and shall be limited to the
property affected by such liens immediately prior to the Effective Date.
Pending Actions. On the Effective Date and thereafter, any action or
proceeding pending by or against Bank or Subsidiary shall not be deemed to have
abated or been discontinued, but may be pursued to judgment with full right to
appeal or
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review. Any such action or proceeding may be pursued as if the merger described
herein had not occurred, or with the Surviving Corporation substituted in place
of Bank or Subsidiary as the case may be.
Further Assurances. Bank and Subsidiary each agree that at any time, or from
time to time, as and when requested by the Surviving Corporation, or by its
successors or assigns, it will execute and deliver, or cause to be executed and
delivered, in its name by its last acting officers or by the corresponding
officers of the Surviving Corporation, all such conveyances, assignments,
transfers, deeds and other instruments, and will take or cause to be taken such
further or other action as the Surviving Corporation, or its successors or
assigns, may deem necessary or desirable in order to carry out the vesting,
perfecting, confirming, assignment, devolution or other transfer of the
interests, property, privileges, powers, immunities, franchises and other rights
referred to in this Section 1, or otherwise to carry out the intent and purposes
of this Merger Agreement.
Stock of the Surviving Corporation
Stock of Subsidiary. On the Effective Date, each share of common stock of
Subsidiary issued and outstanding immediately prior to the Effective Date shall,
by virtue of the merger described herein, be deemed to be exchanged for and
converted into one share of fully paid and nonassessable common stock of the
Surviving Corporation.
Stock of Bank. On the Effective Date, each share of common stock of Bank issued
and outstanding immediately prior to the Effective Date shall, by virtue of the
merger described herein, be deemed to be exchanged for and converted into one
share of fully paid and nonassessable common stock of Holding Company, in
accordance with the provisions of Section 2.3.
Exchange of Stock by Bank Shareholders. On the Effective Date or as soon as
practical thereafter, the following actions shall be taken to effectuate the
exchange and conversion specified in Section 2.2:
The shareholders of Bank of record immediately prior to the Effective
Date shall be allocated and entitled to receive for each share of
common stock of Bank then held by them respectively one share of common
stock of the Holding Company.
As soon as reasonably practicable following the Effective Date, the
Holding Company shall make available for each record holder of Bank
Common Stock immediately prior to the Effective Date a form letter of
transmittal and instructions for use in effecting the surrender of
certificates of Bank Common Stock for payment therefor. At or after the
Effective Time, upon surrender to the Holding Company of such
certificates together with the letter of transmittal, duly executed,
the Holding Company shall promptly issue new share certificates for
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each such person's new shares of Holding Company Common Stock in
accordance with Sections 2.2 and 2.3(a) hereof.
At and after the Effective Date, no transfer of Bank Common Stock
outstanding prior to the Effective Date shall be made on the stock
transfer books of the Surviving Corporation. Until surrendered in
accordance with the provisions of Section 2(b) hereof, the certificates
which immediately prior to the Effective Date represented issued and
outstanding shares of Bank Common Stock shall be deemed by the Holding
Company and the Surviving Corporation to represent for all purposes the
right to receive Holding Company Common Stock, as provided in Sections
2.2 and 2.3(a) hereof.
Other Rights to Stock.
On the Effective Date and thereafter, The Vintage Bank 1993 Stock
Option Plan, as amended, shall be administered in an appropriate manner
to reflect the merger described herein; and any outstanding options to
purchase shares of common stock of Bank shall be deemed to be options
granted by Holding Company upon the same terms and conditions, except
that appropriate adjustments shall be deemed to be made to such terms
and conditions to reflect the merger described herein.
From time to time as and when required by the provisions of any
agreement to which Bank or Holding Company shall become a party after
the date hereof that provides for the issuance of shares of common
stock or other securities, either debt or equity, of Bank or Holding
Company in connection with a merger into Bank of any other banking
institution or the acquisition by Bank of the assets or stock of any
other banking institution or other corporation, Holding Company shall
issue in accordance with the terms of any such agreement shares of its
common stock or other debt or equity securities as required by such
agreement or in substitution for the shares of common stock or other
debt or equity securities of Bank required to be issued by such
agreement, as the case may be, which the shareholders of any other such
banking institution or other corporation shall be entitled to receive
by virtue of any such agreement.
Approvals
Shareholder Approval. This Merger Agreement shall be submitted to the
shareholders of Holding Company, Bank and Subsidiary for ratification and
confirmation in accordance with applicable provisions of law.
Regulatory Approvals. Each of the parties hereto shall proceed expeditiously and
cooperate fully in procuring all other consents and approvals, and in satisfying
all other requirements, prescribed by law or otherwise, necessary or desirable
for the merger
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described herein to be consummated, including without limitation the consents
and approvals referred to in Sections 4.1(b), 4.1(c) and 4.1(d).
Conditions Precedent, Termination and Payment of Expenses
Conditions Precedent to the Merger. Consummation of the merger described herein
is conditioned upon the following:
Ratification and confirmation of this Merger Agreement by the
shareholders of Holding Company, Bank and Subsidiary in accordance with
applicable provisions of law;
Procuring all other consents and approvals and satisfying all other
requirements, prescribed by law or otherwise, which are necessary for
the merger described herein to be consummated, including without
limitation: approval from the Federal Reserve Bank of San Francisco
pursuant to the Bank Merger Act (Section 18(c) of the Federal Deposit
Insurance Act), approval from the Commissioner of Financial
Institutions of the State of California pursuant to Section 700 et seq.
of the California Financial Code, approval from the Board of Governors
of the Federal Reserve System under the Bank Holding Company Act of
1956, approval, if required, from the California Commissioner of
Corporations under the California Corporate Securities Law of 1968 and
of the Blue Sky Administrator of any other state in which Bank has
shareholders with respect to the securities of the Holding Company
issuable upon consummation of the merger, and the availability of an
exemption from the registration requirements of the Securities Act of
1933 (the "1933 Act") as provided by Section 3(a)(12) of the 1933 Act
or declaration as effective by the Securities and Exchange Commission
of a registration statement under the 1933 Act with respect to the
securities of the Holding Company issuable upon consummation of the
merger;
There shall have been received (unless waived by each of the parties
hereto) an opinion in form and substance satisfactory to each of the
parties hereto and their counsel, with respect to the tax consequences
to the parties and their shareholders of the merger described herein;
Procuring all consents or approvals, governmental or otherwise, which
in the opinion of counsel for Bank are or may be necessary to permit or
to enable the Surviving Corporation to conduct, upon and after the
merger described herein, all or any part of the businesses and other
activities that Bank engages in immediately prior to such merger, in
the same manner and to the same extent that Bank engaged in such
businesses and other activities immediately prior to such merger; and
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Performance by each of the parties hereto of all obligations under this
Merger Agreement which are to be performed prior to the consummation of
the merger described herein.
Termination of the Merger. In the event that any condition specified in Section
4.1 cannot be fulfilled, or prior to the Effective Date the Board of Directors
of any of the parties hereto reaches any of the following determinations:
Any action, suit, proceeding or claim relating to the merger described
herein, whether initiated or threatened, makes consummation of such
merger inadvisable; or
Consummation of the merger described herein is inadvisable for any
other reason;
then this Merger Agreement shall be terminated. Upon termination, this Merger
Agreement shall be void and of no further effect, and there shall be no
liability by reason of this Merger Agreement or the termination thereof on the
part of any of the parties hereto or their respective directors, officers,
employees, agents or shareholders.
Expenses of the Merger. All of the expenses of the merger described herein,
including without limitation filing fees, printing costs, mailing costs,
accountant's fees and legal fees, shall be borne by the Surviving Corporation;
provided, however, that if the merger is abandoned for any reason, then all of
such expenses shall be paid by Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Plan of
Reorganization and Merger Agreement to be executed by their duly authorized
officers as of the day and year first above written.
NORTH BAY BANCORP THE VINTAGE BANK
By /s/ Terry L. Robinson By: /s/ Terry L. Robinson
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Terry L. Robinson, Terry L. Robinson, President
President and Secretary
By /s/ Wyman G. Smith
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Wyman G. Smith , Secretary
VINTAGE MERGER CO..
By /s/ Terry L. Robinson
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Terry L. Robinson, President
and Secretary
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