As filed with the Securities and Exchange Commission on September 18, 2000.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Blue Valley Ban Corp
(Exact name of registrant as specified in its charter)
Kansas 48-1070996
(State of Incorporation) (I.R.S. Employer Identification No.)
11935 Riley
Overland Park, Kansas 66225-6128
(Address, including zip code, of registrant's principal executive offices)
1994 Stock Option Plan
1998 Equity Incentive Plan
(Full title of the Plans)
Robert D. Regnier
President and Chief Executive Officer
Blue Valley Ban Corp
11935 Riley
Overland Park, Kansas 66225-6128
(913) 338-1000
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount to be maximum maximum Amount of
Title of securities to Registered (1) offering price aggregate registration
be registered per share (2) offering Fee
price (2)
---------------------------- ----------------- ---------------- --------------- --------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par 368,500 shares $14.375 $3,784,039.90 $998.99
value
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[FN]
(1) The securities to be registered include 38,500 shares reserved for
issuance under the 1994 Stock Option Plan of Blue Valley and 330,000
shares reserved for issuance under the 1998 Equity Incentive Plan of
Blue Valley (together, the "Plans"). Pursuant to Rule 416 under the
Securities Act of 1933, as amended (the "Securities Act"), the
registration statement is deemed to include additional shares of Common
Stock issuable under the terms of the Plans to prevent dilution
resulting from any future stock split, stock dividend or similar
transaction.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). Accordingly, the price per share of the Common
Stock offered hereunder pursuant to the Plans is based on (i) 215,284
shares of Common Stock originally reserved for issuance under the 1998
Equity Incentive Plan of Blue Valley that are not subject to outstanding
options, at a price per share of $9.63, which is the book value (basic)
per share of the Common Stock as of June 30, 2000 and (ii) the following
153,216 shares of Common Stock reserved for issuance under the Plans and
subject to stock options already granted thereunder at the following
exercise prices: (A) 10,000 shares at $3.75 per share; (B) 3,000 shares
at $5.10 per share; (C) 9,000 shares at $6.25 per share; (D) 16,500
shares at $7.50 per share; (E) 54,716 shares at $11.25 per share; and
(F) 60,000 shares at $14.375 per share.
</FN>
<PAGE>
PART I.
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this registration statement omits the information in Item 1 of
Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
As permitted by the rules of the Commission, this registration statement
omits the information in Item 2 of Part I of Form S-8.
PART II.
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Blue Valley Ban
Corp ("Blue Valley" or the "Registrant") are incorporated in this registration
statement on Form S-8 by reference:
1. Blue Valley's final prospectus dated July 18, 2000, filed with the
Commission as part of Amendment No. 5 to the Registration Statement on
Form S-1 (File Nos. 333-34328 and 333-34328-01) by Blue Valley and
BVBC Capital Trust I on July 18, 2000; and
2. Blue Valley's Quarterly Report on Form 10-Q for the quarter ended June
30, 2000.
All documents subsequently filed by Blue Valley pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), 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 in this registration statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
Common Stock
Blue Valley is authorized to issue 15,000,000 shares of Common Stock, of
which 2,141,720 shares were issued and outstanding and held of record by
approximately 135 persons at June 30, 2000. Holders of common stock are entitled
to receive dividends when, as and if declared by our board of directors from
funds legally available therefor. Each share of common stock entitles the holder
to one vote upon matters to be voted upon by the shareholders. Cumulative voting
for the election of directors is not permitted, which means that the holders of
a majority of shares voting for the election of directors can elect all members
of each class of the board of directors. Except as otherwise required by Kansas
law, a majority vote is sufficient for
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any action that requires the vote or concurrence of shareholders, except that a
plurality vote is sufficient to elect directors.
The holders of our common stock do not have any preemptive,
subscription, redemption or conversion rights or privileges. Upon liquidation or
dissolution of Blue Valley, the holders of the common stock are entitled to
share ratably in the net assets of Blue Valley remaining after payment of
liabilities and liquidation preferences of any outstanding shares of preferred
stock. All shares of common stock now outstanding are, and shares to be issued
by us in this offering will be, fully paid and nonassessable. Each share of
common stock has the same rights, privileges and preferences as every other
share.
Preferred Stock
Although no shares of preferred stock are currently outstanding, Blue
Valley is authorized to issue 15,000,000 shares of preferred stock, no par value
per share, which the board of directors may designate and issue from time to
time in one or more series. With respect to each series of the preferred stock,
the board of directors is authorized to fix and determine by the resolution or
resolutions providing for the issuance of the series the number of shares to
constitute the series and the designation of any one or more of the following
rights and preferences:
o the rate of dividend;
o the price at, and terms and conditions on which, the shares may be
redeemed;
o the amount payable for the shares in the event of an involuntary or
voluntary dissolution;
o sinking fund provisions, if any, for the redemption or repurchase of
the shares;
o the terms and conditions on which the shares may be converted, if the
shares of any series are issued with the privilege of conversion; and
o voting rights, including the number of votes per share, the matters on
which the shares can vote and the contingencies that make voting
rights effective.
Anti-Takeover Provisions
Kansas Law
Blue Valley will be subject to the provisions of Section 17-12,100 et.
seq. of the Kansas General Corporation Code (the "Business Combination
Statute"). In general, the Business Combination Statute prohibits a publicly
held Kansas corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date that the
person became an interested stockholder unless (with certain exceptions) the
business combination or the transaction in which the person became an interested
stockholder is approved in a prescribed manner. Generally, a "business
combination" includes a merger, asset sale, stock sale, or other transaction
resulting in a financial benefit to the stockholder. Generally, an "interested
stockholder" is a person who, together with affiliates and associates, owns (or
within three years prior, did own) 15% or more of the corporation's outstanding
voting stock. This
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provision may have the effect of delaying, deferring or preventing a change in
control of Blue Valley without further action by the interested stockholder.
Blue Valley will also be subject to the provisions of Section 17-1286
et. seq. of the Kansas General Corporation Code (the "Control Share Statute").
In general, the Control Share Statute provides that shares of a Kansas
corporation acquired in a "control share acquisition" have no voting rights
except to the extent approved by a vote of a majority of the votes entitled to
be cast on the matter, excluding shares of stock owned by the acquiror or by
officers or directors who are employees of the corporation. A control share
acquisition means, subject to certain exceptions, the acquisition of beneficial
ownership of voting shares of stock which, if aggregated with all other shares
of stock which then have voting rights and are beneficially owned by such a
person, would entitle the acquiror to exercise voting power in electing
directors within one of the following ranges of voting power:
o 20% or more but less than 33 1/3%;
o 33 1/3% or more but less than a majority; or
o a majority of all voting power.
The acquisition of shares of stock in addition to shares an acquiring
person is entitled to vote as a result of having previously obtained stockholder
approval does not constitute a control share acquisition unless, as a result of
such acquisition, the voting power of the shares beneficially owned by the
acquiror would exceed the range in respect of which voting rights have
previously been granted. Certain acquisitions of shares are not deemed to
constitute control share acquisitions, including good faith gifts, transfers
pursuant to wills, purchases pursuant to an issuance by the corporation and
certain mergers involving the corporation.
If voting rights are not approved at a meeting of stockholders or if the
acquiring person does not deliver an acquiring person statement as permitted by
statute, then, subject to certain conditions and limitations, the corporation
may redeem at market value any and all of the shares acquired in the control
share acquisition. If voting rights for such shares are restored at a
stockholders' meeting and the acquiror becomes entitled to vote a majority of
the shares entitled to vote, stockholders who properly objected to the control
share acquisition may exercise appraisal rights and receive, in exchange for
their stock, the fair value of such stock. The fair value of the stock as
determined for purposes of such appraisal rights may not be less than the
highest price per share paid in the control share acquisition.
Articles and Bylaws Provisions
Our articles of incorporation and bylaws include a number of provisions
that may have the effect of deterring or impeding hostile takeovers or changes
in control. These provisions include the following:
o our board of directors is classified into three classes of
directors, nearly equal in size, with staggered three-year terms;
o the board of directors has the authority to issue one or more
series of preferred stock;
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o the requirement that stockholders seeking to nominate directors
for election or to propose other matters to be presented for a
vote at a stockholders' meeting must first notify us in advance;
o stockholders do not have cumulative voting rights; and
o the requirement that any changes to these provisions requires a
two-thirds stockholder vote.
These provisions may have the effect of delaying or preventing a change
in control of Blue Valley. Our articles of incorporation and bylaws provide that
we will indemnify officers and directors against losses that they may incur in
investigations and legal proceedings resulting from their services to us, which
may include services related to takeover defense measures. Such provisions may
have the effect of preventing changes in our management.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Blue Valley's Amended and Restated Articles of Incorporation, together
with its Bylaws, provide that Blue Valley shall indemnify to the fullest extent
permitted by applicable law each person who is or was an officer or director of
Blue Valley, or who is or was serving at the request of Blue Valley as a
director, officer, employee, partner, trustee or agent of Blue Valley. The laws
of the State of Kansas permit, and in some cases require, corporations to
indemnify officers, directors, employees and agents who are or who have been a
party to or are threatened to be made a party to litigation against judgments,
fines, assessments and reasonable expenses under certain circumstances.
Blue Valley has also adopted provisions in its Amended and Restated
Articles of Incorporation that limit the liability of its directors to the
fullest extent permitted by the laws of the State of Kansas. Under Blue Valley's
Amended and Restated Articles of Incorporation, as permitted by the law of the
State of Kansas, a director is not liable to Blue Valley or its stockholders for
monetary damages from a breach of fiduciary duty as a director, except to the
extent such exemption from liability, or limitation thereof, is not permitted
under the Kansas General Corporation Code (the "KGCC") as presently in effect or
as the same may be amended. As of the filing date of this registration
statement, KGCC Section 17-6002 provides, in pertinent part, that corporations
shall not eliminate or limit the liability of a director (a) for any breach of
the director's duty of loyalty to the corporation or its stockholders,
policyholders or members; (b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (c) for the
payment of unlawful dividends or other distributions pursuant to the provisions
of Section 17-6424 of the KGCC, and amendments thereto; or (d) for any
transaction from which the director received an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
<PAGE>
Item 8. Exhibits.
The following exhibits are filed herewith or are incorporated by
reference from documents filed by Blue Valley with the Commission.
4.1 Amended and Restated Articles of Incorporation of Blue Valley Ban
Corp (incorporated by reference to Exhibit 3.1 to the
Registration Statement on Form S-1 filed by Blue Valley and BVBC
Capital Trust I (File Nos. 333-34328 and 333-34329-01))
4.2 By-laws of Blue Valley Ban Corp (incorporated by reference to
Exhibit 3.2 to the Registration Statement on Form S-1 filed by
Blue Valley and BVBC Capital Trust I (File Nos. 333-34328 and
333-34329-01))
4.3 1998 Equity Incentive Plan (incorporated by reference to Exhibit
4.1 to the Registration Statement on Form S-1 filed by Blue
Valley and BVBC Capital Trust I (File Nos. 333-34328 and
333-34329-01))
4.4 1994 Stock Option Plan (incorporated by reference to Exhibit 4.2
to the Registration Statement on Form S-1 filed by Blue Valley
and BVBC Capital Trust I (File Nos. 333-34328 and 333-34329-01))
4.5 Subordinated Indenture of Blue Valley Ban Corp (incorporated by
reference to Exhibit 4.3 to the Registration Statement on Form
S-1 filed by Blue Valley and BVBC Capital Trust I (File Nos.
333-34328 and 333-34329-01))
4.6 Specimen certificate representing shares of the Common Stock
5.1 Opinion of Blackwell Sanders Peper Martin LLP as to the legality
of the Common Stock
15.1 Letter from Baird, Kurtz & Dobson acknowledging awareness of the
use of a report on unaudited interim financial information
23.1 Consent of Baird, Kurtz & Dobson
23.2 Consent of Blackwell Sanders Peper Martin LLP (included in
Exhibit 5.1)
24.1 See the signature page of this registration statement for Powers
of Attorney executed by certain officers and members of the Board
of Directors of Blue Valley
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities 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.
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
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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 (a)(1)(i) and (a)(1)(ii) of this item
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
Securities 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 Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 Securities 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 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 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.
<PAGE>
Signatures
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Overland Park, State of Kansas, on September 18,
2000.
BLUE VALLEY BAN CORP
By: /s/ Robert D. Regnier
Robert D. Regnier,
President and Chief Executive Officer
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Power of Attorney
We, the undersigned directors and officers of Blue Valley Ban Corp, do
hereby constitute and appoint Robert D. Regnier and Mark A. Fortino, and each of
them, our true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for us and in our name, place and stead, in any
and all capacities, to sign any and all amendments to this registration
statement, and any additional registration statements filed pursuant to Rule
462(b) under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, and we do hereby ratify and confirm all that said
attorneys-in-fact and agents, 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 date indicated.
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<CAPTION>
Signature and Name Capacity Date
<S> <C> <C>
/s/Robert D. Regnier President, Chief Executive September 18, 2000
Robert D. Regnier Officer and Director
(Principal Executive Officer)
/s/ Mark A. Fortino Treasurer September 18, 2000
Mark A. Fortino (Principal Financial Officer and
Principal Accounting Officer)
/s/ Donald H. Alexander Director September 18, 2000
Donald H. Alexander
/s/ Wayne A. Henry, Jr. Director September 18, 2000
Wayne A. Henry, Jr.
__________________________
C. Ted McCarter Director September 18, 2000
/s/ Thomas A McDonnell Director September 18, 2000
Thomas A. McDonnell
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<PAGE>
Index to Exhibits
Exhibit
Number Document
--------- ---------
4.6 Specimen certificate representing shares of the Common Stock
5.1 Opinion of Blackwell Sanders Peper Martin LLP as to the legality
of the Common Stock
15.1 Letter from Baird, Kurtz & Dobson acknowledging awareness of the
use of a report on unaudited interim financial information
23.1 Consent of Baird, Kurtz & Dobson
