<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 2, 1998
REGISTRATION NO. 333-46345
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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STERLING BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
TEXAS 6712 74-2175590
(state or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
15000 NORTHWEST FREEWAY
HOUSTON, TEXAS 77040
(713) 466-8300
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
GEORGE MARTINEZ
CHAIRMAN OF THE BOARD AND CHIEF FINANCIAL OFFICER
STERLING BANCSHARES, INC.
15000 NORTHWEST FREEWAY, HOUSTON, TEXAS 77040, (713) 466-8300
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
Copy to:
G. MICHAEL O'LEARY
DAN A. FLECKMAN
ANDREWS & KURTH L.L.P.
600 TRAVIS STREET, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time and as soon as practicable after the Registration Statement becomes
effective.
------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
All capitalized terms used and not defined in Part II of this Registration
Statement shall have the meanings assigned to them in the Prospectus which forms
a part of this Registration Statement.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the offering
described in this Registration Statement. All of such amounts (except the SEC
registration fee) are estimated.
<TABLE>
<S> <C>
SEC Registration Fee........................................ $25,960
Blue Sky Fees and Expenses.................................. 5,000
Printing and Engraving Costs................................ 5,000
Legal Fees and Expenses..................................... 20,000
Accounting Fees and Expenses................................ 2,000
Transfer Agent and Registrar Fees and Expenses.............. 5,000
Miscellaneous............................................... 7,040
-------
Total.................................................. $70,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of Sterling provide that its directors and
officers may be indemnified against any costs and expenses, including counsel
fees, actually and necessarily incurred (or reasonably expected to be incurred)
in connection with the defense of any civil, criminal, administrative or other
claim, action, suit or proceedings (whether by or in the right of Sterling or
otherwise) in which he may become involved or with which he may be threatened,
by reason of his being or having been such a director or officer, and against
any payments in settlement of any such claim, action, suit or proceeding or in
satisfaction of any related judgment, fine or penalty, provided that the Board
of Directors of Sterling shall, in the exercise of its business judgment,
determine that such indemnification is in the best interest of Sterling.
Sterling's Bylaws provide for indemnification of directors and officers to
the full extent permitted by law. In the case of a derivative or other action by
or in the right of Sterling where a director is found liable, indemnity is
predicated on the determination that indemnification is nevertheless
appropriate, by majority vote of a committee of disinterested directors or by
independent legal counsel.
Under the Texas Business Corporation Act (the "TBCA"), directors, officers,
employees or agents are entitled to indemnification against expenses (including
attorneys' fees) whenever they successfully defend legal proceedings brought
against them by reason of the fact that they hold such a position with the
corporation. In addition, with respect to actions not brought by or in the right
of the corporation, indemnification is permitted under the TBCA for expenses
(including attorneys' fees), judgments, fines, penalties and reasonable
settlement if it is determined that the person seeking indemnification acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation or its shareholders and, with respect
to criminal proceedings he or she had no reasonable cause to believe that his or
her conduct was unlawful. With respect to actions brought by or in the right of
the corporation, indemnification is permitted under the TBCA for expenses
(including attorneys' fees) and reasonable settlements, if it is determined that
the person seeking indemnification acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation or its shareholders; provided, indemnification is not permitted if
the person is found liable to the corporation, unless the court in which the
action or suit was brought has determined that indemnification is fair and
reasonable in view of all the circumstances of the case.
Under an insurance policy maintained by Sterling, the directors and
officers of Sterling are insured within the limits and subject to the
limitations of the policy, against certain expenses in connection with the
defense
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of certain claims, actions, suits or proceedings, and certain liabilities which
might be imposed as a result of such claims, action, suits or proceedings, which
may be brought against them by reason of being or having been such directors and
officers.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
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<CAPTION>
EXHIBIT NUMBER DESCRIPTION
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<C> <C> <S>
3.1 -- Restated and Amended Articles of Incorporation of Sterling
(incorporated herein by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4 (File No.
333-27185)).
3.2 -- Restated Bylaws of Sterling (incorporated herein by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 effective November 25, 1996 (File No.
333-16719)).
+5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of the
securities being registered.
10.1 -- 1994 Incentive Stock Option Plan of the Registration
(incorporated by reference to Exhibit 10.1 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1994).
10.2 -- 1994 Employee Stock Purchase Plan of the Registrant
(incorporated by reference to Exhibit 10.2 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1994).
10.3 -- 1984 Incentive Stock Option Plan of the Registrant
(incorporated by reference to Exhibit 10.1 to the Company's
Registration Statement on Form S-1(File No. 33-51476)).
10.4 -- Settlement and Release Agreement dated October 2, 1995,
between Sterling Bancshares, Inc., and C. Frank Kurtin
(incorporated herein by reference to Exhibit 10.5 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996).
10.5 -- Consulting Contract dated October 2, 1995, between Sterling
Bancshares, Inc., and C. Frank Kurtin (incorporated herein
by reference to Exhibit 10.6 to the Company's Annual Report
on Form 10-K for the year ended December 31, 1996).
10.6 -- 1995 Non-Employee Director Stock Compensation Plan
(incorporated by reference to Exhibit 5.1 to the Company's
Registration Statement on Form S-8 (File No. 333-16719)).
+23.1 -- Consent of Deloitte & Touche LLP, Independent Auditors.
+23.2 -- Consent of Andrews & Kurth L.L.P. (included in their opinion
filed herewith as Exhibit 5.1).
24 -- Powers of Attorney (included on the signature page).
</TABLE>
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+ Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum offering price set forth in the "Calculation of the Registration
Fee" table in the effective 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)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
The registrant undertakes that every prospectus (i) that is filed pursuant
to the immediately preceding paragraph, or (ii) that purports to meet the
requirements of section 10(a)(3) of the Securities Act of 1933 and is used in
connection with an offering of securities subject to Rule 415, will be filed as
a part of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 of this Registration
Statement, or otherwise, the registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the
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matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-4 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 13th day of February,
1998.
STERLING BANCSHARES, INC.
/s/ GEORGE MARTINEZ
--------------------------------------
George Martinez, Chairman of the Board
and Chief Financial Officer
(Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints George Martinez, and Michael A. Roy, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any subsequent registration statement filed
by the Registrant pursuant to Rule 462(b) of the Securities Act of 1933, which
relates to this Registration Statement, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agent, or his or their substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE POSITION DATE
--------- -------- ----
<C> <S> <C>
/s/ GEORGE MARTINEZ Chairman of the Board and Chief March 2, 1998
- --------------------------------------------- Financial Officer and Director
George Martinez (Principal Executive and Financial
Officer)
/s/ GEORGE MARTINEZ Principal Accounting Officer March 2, 1998
- ---------------------------------------------
George Martinez
* Director March 2, 1998
- ---------------------------------------------
J. Downey Bridgwater
* Director March 2, 1998
- ---------------------------------------------
C.P. Bryan, Jr.
* Director March 2, 1998
- ---------------------------------------------
John H. Buck
* Director March 2, 1998
- ---------------------------------------------
John B. Carter, Jr.
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE POSITION DATE
--------- -------- ----
<C> <S> <C>
* Director March 2, 1998
- ---------------------------------------------
James M. Clepper
* Director March 2, 1998
- ---------------------------------------------
Walter P. Gibbs, Jr.
* Director March 2, 1998
- ---------------------------------------------
Bruce J. Harper
* Director March 2, 1998
- ---------------------------------------------
Glenn H. Johnson
* Director March 2, 1998
- ---------------------------------------------
James J. Kearney
* Director March 2, 1998
- ---------------------------------------------
Russell I. Orr
* Director March 2, 1998
- ---------------------------------------------
Christian A. Rasch
* Director March 2, 1998
- ---------------------------------------------
Steven F. Retzloff
* Director March 2, 1998
- ---------------------------------------------
Raimundo Riojas
* Director March 2, 1998
- ---------------------------------------------
Cuba Wadlington, Jr.
*By /s/ GEORGE MARTINEZ
----------------------------------------
George Martinez, as attorney-in-fact
</TABLE>
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S> <C>
3.1 -- Restated and Amended Articles of Incorporation of Sterling
(incorporated herein by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4 (File No.
333-27185)).
3.2 -- Restated Bylaws of Sterling (incorporated herein by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 effective November 25, 1996 (File No.
333-16719)).
+5.1 -- Opinion of Andrews & Kurth L.L.P. as to the legality of the
securities being registered.
10.1 -- 1994 Incentive Stock Option Plan of the Registration
(incorporated by reference to Exhibit 10.1 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1994).
10.2 -- 1994 Employee Stock Purchase Plan of the Registrant
(incorporated by reference to Exhibit 10.2 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1994).
10.3 -- 1984 Incentive Stock Option Plan of the Registrant
(incorporated by reference to Exhibit 10.1 to the Company's
Registration Statement on Form S-1 (File No. 33-51476)).
10.4 -- Settlement and Release Agreement dated October 2, 1995,
between Sterling Bancshares, Inc., and C. Frank Kurtin
(incorporated herein by reference to Exhibit 10.5 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996).
10.5 -- Consulting Contract dated October 2, 1995, between Sterling
Bancshares, Inc., and C. Frank Kurtin (incorporated herein
by reference to Exhibit 10.6 to the Company's Annual Report
on Form 10-K for the year ended December 31, 1996).
10.6 -- 1995 Non-Employee Director Stock Compensation Plan
(incorporated by reference to Exhibit 5.1 to the Company's
Registration Statement on Form S-8 (File No. 333-16719)).
+23.1 -- Consent of Deloitte & Touche LLP, Independent Auditors.
+23.2 -- Consent of Andrews & Kurth L.L.P. (included in their opinion
filed herewith as Exhibit 5.1).
24 -- Powers of Attorney (included on the signature page).
</TABLE>
- ---------------
+ Filed herewith.
<PAGE> 1
EXHIBIT 5.1
FEBRUARY 13, 1998
Board of Directors
Sterling Bancshares, Inc.
15000 Northwest Freeway
Houston, Texas 77040
Gentlemen:
We have acted as counsel to Sterling Bancshares, Inc., a Texas corporation
(the "Company"), in connection with the Company's Registration Statement on Form
S-4 (the "Registration Statement") relating to the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of up to
shares of the Company's common stock, par value $1.00 per share (the "Shares").
As the basis for the opinion expressed below, we have examined the
Registration Statement, the Prospectus contained therein, and such statutes,
regulations, corporate records and documents, certificates of corporate and
public officials and other instruments as we have deemed necessary or advisable
for the purposes of this opinion. In such examination, we have assumed (i) that
the signatures on all documents that we have examined are genuine, (ii) the
authenticity of all documents submitted to us as originals, and (iii) the
conformity with the original documents of all documents submitted to us as
copies.
Based upon the foregoing and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares have
been duly authorized and will, when issued as provided in the Prospectus, be
validly issued, fully paid and nonassessable.
The opinion expressed above with respect to the Shares may be limited by
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfer, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law)).
This opinion is limited in all respects to the laws of the State of Texas
and the laws of the United States of America insofar as such laws are
applicable. We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of the firm name under the heading
"Validity of Securities" in the Registration Statement.
Very truly yours,
/s/ ANDREWS & KURTH L.L.P.
1198/1198/2691
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Sterling Bancshares, Inc. on Form S-4 of out report dated March 7, 1997 (except
for Note X as to which the date is March 18, 1997), appearing in the Annual
Report on Form 10-K of Sterling Bancshares, Inc. for the year ended
December 31, 1996.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Houston, Texas
March 2, 1998
