As filed with the Securities and Exchange Commission on August ___, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MCB FINANCIAL CORPORATION
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(Exact name of registrant as specified in its charter)
California
(State or other jurisdiction of incorporation or organization)
68-0300300
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(I.R.S. Employer Identification Number)
1248 Fifth Avenue, San Rafael, California 94901
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(Address of principal executive offices) (Zip Code)
MCB Financial Corporation 1999 Stock Option Plan
Marin Community Bank, N.A. 1989 Stock Option Plan
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(Full Title of the Plan)
Charles O. Hall
President and Chief Executive Officer
1248 Fifth Avenue, San Rafael, California, 94901
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(Name and address of agent for service)
(415) 459-2265
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Telephone Number, Including Area Code, of Agent For Service
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title Of Securities
To Be Registered Amount Proposed Maximum Proposed Maximum Amount Of
To Be Offering Price Per Aggregate Offering Registration Fee
Registered Share 1/ Price 2/
-
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<S> <C> <C> <C> <C>
MCB Financial
Corporation 1999 415,485 $8.03 (see below) (see below)
Stock Option Plan shares
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Marin Community Bank,
N.A. 1989 Stock 218,178 $8.03 $5,088.314 2/ $1,343.31 2/
Option Plan shares
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<FN>
1/ Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c) and (g) based on the average of the
high and low prices of the Company's common stock as reported on the American
Stock Exchange on August 24, 2000. In addition to the common stock set forth in
the table, the amount to be registered includes an indeterminate number of
shares issuable pursuant to stock splits and stock dividends and in accordance
with Rule 416(b).
2/ Calculated on the basis of the maximum aggregate offering price of all
the securities listed, pursuant to Rule 457(o).
</FN>
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference in this registration
statement the following documents:
1) Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999;
2) Quarterly Reports on Form 10-QSB for the quarters ended March
31, 2000 and June 30, 2000;
3) The description of the Common Stock set forth in the Registration
Statement on Form 8-A under Section 12(g) of the Exchange Act filed November 18,
1999 and any future amendment or report filed for the purpose of updating such
description; and
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4) The description of Preferred Stock Purchase Rights in the
Registration Statement on Form 8-A under Section 12(g) of the Exchange Act filed
January 25, 1999 and any future amendment or report filed for the purpose of
updating such description.
All documents filed by the Company with the Commission after the date
of this Prospectus under Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, and before the Company files a post-effective amendment which reports that
all securities offered in this Prospectus have been sold, or to deregister all
unsold securities, shall also be deemed to be incorporated by reference and to
be part of this Prospectus from the dates we file each of those documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Articles of Incorporation provide that the liability of
the directors for monetary damages shall be eliminated to the fullest extent
permissible under the California Corporation Law. Pursuant to California law,
the Company's directors will not be liable for monetary damages for breach of
the directors' fiduciary duty of care to the Company and its shareholders.
However, this provision does not eliminate the duty of care, and in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under California law. In addition,
each director will continue to be subject to liability for (i) acts or omissions
that involve intentional misconduct or a knowing and culpable violation of law,
(ii) acts or omissions that a director believes to be contrary to the best
interests of the Company or its shareholders or that involve the absence of good
faith on the part of the director, (iii) any transaction from which a director
derived an improper personal benefit, (iv) acts or omissions that show a
reckless disregard for the director's duty to the Company or its shareholders in
circumstances in which the director was aware, or should have been aware, in the
ordinary course of performing a director's duties, of a risk of serious injury
to the Company or its shareholders, (v) acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Company or its shareholders, (vi) any transaction that constitutes
an illegal distribution or dividend under California law, and (vii) any
transaction involving an unlawful conflict of interest between the director and
the Company under California law. The provision also does not affect a
director's responsibilities under any other law, such as the federal securities
laws or state or federal environmental laws.
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Section 317 of the California Corporation Law 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 the 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.
The Company's Articles of Incorporation and Bylaws provide
indemnification to fullest extent permissible under California law, subject to
certain limitations and the Bylaws authorize the Company to enter into indemnity
agreements with its directors and officers. Although the Company has not entered
into any such indemnity agreements, its subsidiary Metro Commerce Bank has done
so with certain of its directors and officers.
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 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
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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 in the amount of $4,000,000.
Under the Marin Community Bank, N.A. 1989 Stock Option Plan, the
Company indemnifies the directors against liabilities arising from their duties
in connection with administration of the Plan, unless a director engaged in
willful misconduct or gross negligence, and pays expenses, judgments and fines
provided the director acted in good faith, and reasonably believed his or her
actions were within the scope of employment or authority and for a purpose
reasonably believed to be in the best interests of the Company (and, in the case
of a criminal proceeding, the director had no reasonable cause to believe the
conduct was unlawful). The indemnification provision does not apply to any
action instituted or maintained in the right of the Company by a shareholder or
holder of a voting trust certificate representing shares of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index attached hereto is incorporated by reference.
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 of 1933;
(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;
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(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) 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 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.
(b) 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 (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 of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 San Rafael, State of California, on August 24,
2000.
MCB FINANCIAL CORPORATION
By:/s/Charles O. Hall
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Charles O. Hall
President and Chief Executive Officer
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POWER OF ATTORNEY
The officers and directors of MCB Financial Corporation whose
signatures appear below hereby constitute and appoint Charles O. Hall and
Patrick E. Phelan, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments (including
post-effective amendments) to this Registration Statement on Form S-8 and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do everything
necessary to accomplish the foregoing, as fully to all intents and purposes as
he or she might or could do in person, and each of the undersigned does hereby
ratify and confirm all that each of said attorneys and agents, or their
substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on August 24, 2000.
SIGNATURE TITLE
/s/Charles O. Hall Director; President and Chief
------------------ Executive Officer
Charles O. Hall (Principal Executive Officer)
/s/ Patrick E. Phelan Chief Financial Officer
--------------------- (Principal Financial
Patrick E. Phelan and Accounting Officer)
/s/ Timothy J. Jorstad Chairman; Director
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Timothy J. Jorstad
/s/ John Cavallucci Director
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John Cavallucci
/s/ Catherine H. Munson Director
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Catherine H. Munson
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SIGNATURE TITLE
/s/ Edward P. Tarrant Director
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Edward P. Tarrant
/s/ Randall J. Verrue Director
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Randall J. Verrue
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EXHIBIT LIST
4.1 Restated Articles of Incorporation (incorporated by reference to
Exhibit 3(a) of the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998*)
4.2 Bylaws (incorporated by reference to the registrant's registration
statement on Form S-4 (File No. 33- 61720, filed April 28, 1993))
4.3 MCB Financial Corporation 1999 Stock Option Plan (incorporated by
reference to Exhibit A of the Company's Proxy Statement dated April 26,
1999*)
4.4 Marin Community Bank, N.A. 1989 Stock Option Plan (incorporated by
reference to Exhibit 10.6 to the Company's Registration Statement on
Form S-4 (File No. 33-76832).
5 Opinion of counsel as to the legality of securities being registered
23.1 Consent of counsel (included in Exhibit 5)
23.2 Consent of independent auditors
24 Power of attorney (included in signature page of this registration
statement)
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* File No. 001-15479
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