forms3.htm
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As
filed with the Securities and Exchange Commission January 16,
2009
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Registration
No. 333-_____
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SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
____________________________
BANK
OF MARIN BANCORP
(Exact
name of registrant as specified in its charter)
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California
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20-8859754
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification
No.)
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504
Redwood Boulevard, Suite 100
Novato,
California
94947
(Address,
Including Zip Code, and Telephone Number, Including Area Code, or Registrant’s
Principal Executive Offices)
Russell
A. Colombo
President
and Chief Executive Officer
Bank
of Marin Bancorp
504
Redwood Blvd., Suite 100
Novato,
CA 94947
(Name and
address of agent for service)
(415)
884-7781
(Telephone
number, including area code, of agent for service)
Copies
of communications to:
John
F. Stuart, Esq.
Kenneth
E. Moore, Esq.
Reitner,
Stuart & Moore
1319
Marsh Street
San
Luis Obispo, CA 93401
(805)
545-8590
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this registration statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
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, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to rule 413(b) under the Securities Act, check
the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act (Check one):
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Large
accelerated filer ¨
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Accelerated
filer x
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Non-accelerated
filer ¨
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Smaller
reporting company ¨
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(Do
not check if a smaller reporting
company)
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CALCULATION
OF REGISTRATION FEE
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Title
of each class of securities to be registered
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Amount
to be Registered
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Proposed
maximum offering price per unit
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Fixed
Rate Cumulative Perpetual Preferred, Series B, no par value per
share
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28,000 |
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$ |
1,000 |
(1) |
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$ |
28,000,000 |
(1) |
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$ |
1,101 |
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Warrant
to Purchase Common Stock, no par value per share, and underlying shares of
Common Stock(2)
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154,242 |
(2) |
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$ |
27.23 |
(3) |
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$ |
4,200,000
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(3) |
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$ |
166 |
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Total:
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$ |
32,200,000 |
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$ |
1,267 |
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(1)
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Calculated in accordance with
Rule 457(a) and includes such additional number of shares of Fixed Rate
Cumulative Perpetual Preferred, Series B, of a currently indeterminable
amount, as may from time to time become issuable by reason of stock
splits, stock dividends or similar
transactions.
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(2)
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In addition to the Fixed Rate
Cumulative Perpetual Preferred, Series B, there are being registered
hereunder (a) a warrant for the purchase of 154,242 shares of common stock
with an initial per share exercise price of $27.23 per share, (b) the
154,242 shares of common stock issuable upon exercise of such warrant and
(c) such additional number of shares of common stock, of a currently
indeterminable amount, as may from time to time become issuable by reason
of stock splits, stock dividends and certain anti-dilution provisions set
forth in such warrant, which shares of common stock are registered
hereunder pursuant to Rule
416.
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(3)
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Calculated in accordance with
Rule 457(i) with respect to the per share exercise price of the warrant of
$27.23.
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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 Section 8(a), may
determine.
The information in this prospectus is not complete and may be
changed. The selling security holders may not sell these securities
or accept an offer to buy those securities until the registration statement
filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any jurisdiction where such offer or sale is
not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 16,
2009
PROSPECTUS
BANK
OF MARIN BANCORP
FIXED
RATE CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES B
WARRANT
TO PURCHASE 154,242 SHARES OF COMMON STOCK
154,242
SHARES OF COMMON STOCK
This
prospectus relates to the potential resale from time to time by selling
securityholders of some or all of the shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series B, or the series B preferred stock, a warrant
to purchase 154,242 shares of common stock, or the warrant, and any shares of
common stock issuable from time to time upon exercise of the warrant. In this
prospectus, we refer to the shares of series B preferred stock, the warrant and
the shares of common stock issuable upon exercise of the warrant, collectively,
as the securities. The series B preferred stock and the warrant were originally
issued by us pursuant to the Letter Agreement dated December 5, 2008, and the
related Securities Purchase Agreement – Standard Terms, between us and the
United States Department of the Treasury, which we refer to as the initial
selling securityholder, in a transaction exempt from the registration
requirements of the Securities Act of 1933, as amended, or the Securities
Act.
The
initial selling securityholder and its successors, including transferees, which
we collectively refer to as the selling securityholders, may offer the
securities from time to time directly or through underwriters, broker-dealers or
agents and in one or more public or private transactions and at fixed prices,
prevailing market prices, at prices related to prevailing market prices or at
negotiated prices. If these securities are sold through underwriters,
broker-dealers or agents, the selling securityholders will be responsible for
underwriting discounts or commissions or agents’ commissions.
We will
not receive any proceeds from the sale of securities by the selling
securityholders.
Neither
the series B preferred stock nor the warrant is listed on an exchange, and,
unless requested by the initial selling securityholder, we do not intend to list
the series B preferred stock on any exchange. We do not intend to
list the warrant on any exchange.
Our
common stock is traded on the NASDAQ Stock Market under the symbol “BMRC.” On
January 7, 2009, the closing price of our common stock on the NASDAQ Stock
Market was $24.00 per share. You are urged to obtain current market quotations
of the common stock.
Investing
in our securities involves a high degree of risk. See “Risk Factors”
beginning on page 2.
Our
principal executive offices are located at 504 Redwood Boulevard, Suite 100,
Novato, California 94947, and our telephone number is (415) 884-7781. Our
Internet address is http://www.bankofmarin.com.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The date
of this prospectus is January 16, 2009.
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This
prospectus is part of a registration statement we filed with the Securities and
Exchange Commission, or the SEC, using a “shelf” registration process. Under
this shelf registration process, the selling securityholders may, from time to
time, offer and sell, in one or more offerings, the securities described in this
prospectus.
The
registration statement containing this prospectus, including the exhibits to the
registration statement, provides additional information about us and the
securities offered under this prospectus. The registration statement, including
the exhibits and the documents incorporated herein by reference, can be read on
the SEC website or at the SEC offices mentioned under the heading “Where You Can
Find More Information” and “Incorporation by Reference.”
We may
provide a prospectus supplement containing specific information about the terms
of a particular offering by the selling securityholders. The prospectus
supplement may add, update or change information in this prospectus. If the
information in this prospectus is inconsistent with a prospectus supplement, you
should rely on the information in that prospectus supplement. You should read
both this prospectus and, if applicable, any prospectus supplement. See “Where
You Can Find More Information” for more information.
In this
prospectus, “Bank of Marin Bancorp,” the “Company,” “we,” “our,” “ours,” and
“us” refer to Bank of Marin Bancorp, which is a financial holding company
headquartered in Novato, California, and its subsidiaries on a consolidated
basis, unless the context otherwise requires. References to “Bank of Marin” mean
Bank of Marin, which is our principal bank subsidiary. The website
for Bank of Marin Bancorp and Bank of Marin is www.bankofmarin.com. Information
on the website does not constitute part of this prospectus, unless specifically
incorporated by reference.
We have
not authorized any dealer, salesman or other person to give any information or
to make any representation other than those contained or incorporated by
reference in this prospectus or any prospectus supplement. You must not rely
upon any information or representation not contained or incorporated by
reference in this prospectus or any prospectus supplement. This prospectus and
any prospectus supplement do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the registered securities to which
they relate, nor do this prospectus and any prospectus supplement constitute an
offer to sell or the solicitation of an offer to buy securities in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the information
contained in this prospectus or any prospectus supplement is accurate on any
date subsequent to the date set forth on the front of such document or that any
information we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though this
prospectus and any prospectus supplement is delivered or securities are sold on
a later date.
This
prospectus and the documents incorporated by reference contain statements that
are considered “forward looking statements” within the meaning of United States
securities laws. In addition, Bank of Marin Bancorp and its management may make
other written or oral communications from time to time that contain
forward-looking statements. Forward-looking statements, including statements
about industry trends, management’s future expectations and other matters that
do not relate strictly to historical facts, are based on assumptions by
management, and are often identified by such forward-looking terminology as
“expect,” “look,” “believe,” “anticipate,” “estimate,” “seek,” “may,” “will,”
“trend,” “target,” and “goal” or similar statements or variations of such terms.
Forward-looking statements may include, among other things, statements about
Bank of Marin Bancorp’s confidence in its strategies and its expectations about
financial performance, market growth, market and regulatory trends and
developments, acquisitions and divestitures, new technologies, services and
opportunities and earnings.
Forward-looking
statements are subject to various risks and uncertainties, which change over
time, are based on management’s expectations and assumptions at the time the
statements are made, and are not guarantees of future results. Management’s
expectations and assumptions, and the continued validity of the forward-looking
statements, are subject to change due to a broad range of factors affecting the
national and global economies, the equity, debt, currency and other financial
markets, as well as factors specific to Bank of Marin Bancorp and its
subsidiaries, including Bank of Marin.
Actual
outcomes and results may differ materially from what is expressed in our
forward-looking statements and from our historical financial results due to the
factors discussed elsewhere in this prospectus or disclosed in our other SEC
filings. Forward-looking statements should not be relied upon as representing
our expectations or beliefs as of any date subsequent to the time this
prospectus is filed with the SEC. Bank of Marin Bancorp undertakes no obligation
to revise the forward-looking statements contained in this prospectus to reflect
events after the time it is filed with the SEC. The factors discussed herein are
not intended to be a complete summary of all risks and uncertainties that may
affect our businesses. Though we strive to monitor and mitigate risk, we cannot
anticipate all potential economic, operational and financial developments that
may adversely impact our operations and our financial results.
Forward-looking
statements should not be viewed as predictions, and should not be the primary
basis upon which investors evaluate Bank of Marin Bancorp. Any investor in Bank
of Marin Bancorp should consider all risks and uncertainties disclosed in our
SEC filings described below under the heading “Where You Can Find More
Information,” all of which are accessible on the SEC’s website at
http://www.sec.gov.
An
investment in our securities involves significant risks. You should carefully
consider the risks and uncertainties and the risk factors set forth in the
documents and reports filed with the SEC that are incorporated by reference into
this prospectus, as well as any risks described in any applicable prospectus
supplement, before you make an investment decision regarding the securities.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect our business operations.
We will
not receive any proceeds from any sale of the securities by the selling
securityholders.
RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED
DIVIDENDS
The
following is our ratio of earnings to fixed charges.
STATEMENT OF RATIOS OF
EARNINGS TO FIXED CHARGES
Bank
of Marin Bancorp
Ratio
of Earnings to Fixed Charges
Ratio
of Earnings to Fixed Charges and Preferred Dividends
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Nine Months Ended
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Year
Ended December 31
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(Dollars
in thousands)
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September 30,
2008
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2007
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2006
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2005
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2004
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2003
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Excluding
Interest on Deposits
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Income
before income taxes, as reported
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$ |
15,292 |
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$ |
20,102 |
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$ |
18,548 |
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$ |
19,111 |
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$ |
15,326 |
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$ |
12,113 |
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Fixed
charges:
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Interest
expense on borrowed funds
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702 |
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1,172 |
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1,469 |
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841 |
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166 |
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2 |
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Estimated
interest component of net rent expense (1)
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616 |
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759 |
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653 |
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492 |
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448 |
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393 |
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Total
fixed charges
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1,318 |
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1,931 |
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2,122 |
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1,333 |
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614 |
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395 |
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Preferred
dividend requirements (2)
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- |
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- |
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- |
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- |
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- |
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- |
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Fixed
charges and preferred dividends
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1,318 |
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1,931 |
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2,122 |
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1,333 |
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614 |
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395 |
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Earnings
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$ |
16,610 |
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$ |
22,033 |
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$ |
20,670 |
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$ |
20,444 |
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$ |
15,940 |
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$ |
12,508 |
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Ratio
of earnings to fixed charges
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12.60 |
x |
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11.41 |
x |
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9.74 |
x |
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15.34 |
x |
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25.96 |
x |
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31.67 |
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Ratio
of earnings to fixed charges and preferred dividends
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12.60 |
x |
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11.41 |
x |
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9.74 |
x |
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15.34 |
x |
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25.96 |
x |
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31.67 |
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Nine Months Ended
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Year
Ended December 31
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(Dollars
in thousands)
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September 30,
2008
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2007
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2006
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2005
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2004
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2003
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Including
Interest on Deposits
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Income
before income taxes, as reported
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$ |
15,292 |
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$ |
20,102 |
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$ |
18,548 |
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$ |
19,111 |
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$ |
15,326 |
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$ |
12,113 |
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Fixed
charges:
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Interest
expense
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8,603 |
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19,099 |
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16,578 |
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10,043 |
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5,352 |
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5,169 |
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Estimated
interest component of net rent expense (1)
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616 |
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759 |
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653 |
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492 |
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448 |
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393 |
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Total
fixed charges
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9,219 |
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19,858 |
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17,231 |
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10,535 |
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5,800 |
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5,562 |
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Preferred
dividend requirements (2)
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- |
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- |
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- |
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- |
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- |
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- |
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Fixed
charges and preferred dividends
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9,219 |
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19,858 |
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17,231 |
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10,535 |
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5,800 |
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5,562 |
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Earnings
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$ |
24,511 |
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$ |
39,960 |
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$ |
35,779 |
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$ |
29,646 |
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$ |
21,126 |
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$ |
17,675 |
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Ratio
of earnings to fixed charges
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2.66 |
x |
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2.01 |
x |
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2.08 |
x |
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2.81 |
x |
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3.64 |
x |
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3.18 |
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Ratio
of earnings to fixed charges and preferred dividends
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2.66 |
x |
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2.01 |
x |
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2.08 |
x |
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2.81 |
x |
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3.64 |
x |
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3.18 |
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(1)
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Calculated
using a 1/3 interest factor on rent expense, which is considered by
management to be a reasonable estimate of the interest within rental
expense.
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(2)
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No shares
of our preferred stock were outstanding during the years ended
December 31, 2007, 2006, 2005, 2004 and 2003, or during the nine months
ended September 30, 2008, and we did not pay preferred stock dividends
during these periods.
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No shares
of our series B preferred stock, or any other class of preferred stock, were
outstanding during the years ended December 31, 2007, 2006, 2005, 2004 and 2003,
or during the nine months ended September 30, 2008, and we did not pay preferred
stock dividends during these periods. Consequently, the ratios of earnings to
fixed charges and preferred dividends do not reflect dividends to be paid on the
series B preferred stock.
The
following is a brief description of the terms of the series B preferred stock
that may be resold by the selling securityholders. This summary does not purport
to be complete in all respects. This description is subject to and qualified in
its entirety by reference to our articles of incorporation, as amended,
including the certificate of determination with respect to the series B
preferred stock, copies of which have been filed with the SEC and are also
available upon request from us.
General
Under our
articles of incorporation, as amended, we have authority to issue up to 5
million shares of preferred stock, no par value per share. Of such number of
shares of preferred stock, 1,000,000 shares have been designated as Series A
Junior Participating Preferred Shares, and 28,000 shares have been designated as
Fixed Rate Cumulative Perpetual Preferred Stock, Series B, all of which shares
of series B preferred stock were issued to the initial selling securityholder in
a transaction exempt from the registration requirements of the Securities Act.
The issued and outstanding shares of series B preferred stock are validly
issued, fully paid and nonassessable.
Dividends
Payable On Shares of Series B Preferred Stock
Holders
of shares of series B preferred stock are entitled to receive if, as and when
declared by our board of directors or a duly authorized committee of the board,
out of assets legally available for payment, cumulative cash dividends at a rate
per annum of 5% per share on a liquidation preference of $1,000 per share of
series B preferred stock with respect to each dividend period from December 5,
2008 to, but excluding, February 15, 2014. From and after February 15, 2014,
holders of shares of series B preferred stock are entitled to receive cumulative
cash dividends at a rate per annum of 9% per share on a liquidation preference
of $1,000 per share of series B preferred stock with respect to each dividend
period thereafter.
Dividends
are payable quarterly in arrears on each February 15, May 15, August 15 and
November 15, each a dividend payment date, starting with February 15, 2009. If
any dividend payment date is not a business day, then the next business day will
be the applicable dividend payment date, and no additional dividends will accrue
as a result of the applicable postponement of the dividend payment date.
Dividends payable during any dividend period are computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends payable with respect
to the series B preferred stock are payable to holders of record of shares of
series B preferred stock on the date that is 15 calendar days immediately
preceding the applicable dividend payment date or such other record date as the
board of directors or any duly authorized committee of the board determines, so
long as such record date is not more than 60 nor less than 10 days prior to the
applicable dividend payment date.
If we
determine not to pay any dividend or a full dividend with respect to the series
B preferred stock, we are required to provide written notice to the holders of
shares of series B preferred stock prior to the applicable dividend payment
date.
We are
subject to various regulatory policies and requirements relating to the payment
of dividends, including requirements to maintain adequate capital above
regulatory minimums. The Board of Governors of the Federal Reserve System, or
the Federal Reserve Board, is authorized to determine, under certain
circumstances relating to the financial condition of a bank holding company,
such as us, that the payment of dividends would be an unsafe or unsound practice
and to prohibit payment thereof. In addition, we are subject to California state
laws relating to the payment of dividends. Since we receive
substantially all of our revenue from Bank of Marin, our ability to pay
dividends on our common stock or preferred stock depends on our receipt of
dividends from Bank of Marin. Dividend payments from Bank of Marin
are subject to legal and regulatory limitations, generally based on net income
and retained earnings. The ability of Bank of Marin to pay dividends
to us is also subject to its profitability, financial condition, capital
expenditures and other cash flow requirements.
Priority
of Dividends
With
respect to the payment of dividends and the amounts to be paid upon liquidation,
the series B preferred stock will rank:
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senior to our common stock and
all other equity securities designated as ranking junior to the series B
preferred stock, including shares of our Series A Junior Participating
Preferred Shares (of which, as of the date of this prospectus, 1,000,000
shares are authorized and reserved for issuance and none are issued);
and
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at least equally with all other
equity securities designated as ranking on a parity with the series B
preferred stock, or parity stock with respect to the payment of dividends
and distribution of assets upon any liquidation, dissolution or winding-up
of Bank of Marin Bancorp.
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So long
as any shares of series B preferred stock remain outstanding, unless all accrued
and unpaid dividends for all prior dividend periods have been paid or are
contemporaneously declared and paid in full, no dividend whatsoever shall be
paid or declared on Bank of Marin Bancorp’s common stock or other junior stock,
other than a dividend payable solely in common stock. We and our subsidiaries
also may not purchase, redeem or otherwise acquire for consideration any shares
of our common stock or other junior stock unless we have paid in full all
accrued dividends on the series B preferred stock for all prior dividend
periods, other than:
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purchases, redemptions or other
acquisitions of our common stock or other junior stock in connection with
the administration of our employee benefit plans in the ordinary course of
business pursuant to a publicly announced repurchase plan up to the
increase in diluted shares outstanding resulting from the grant, vesting
or exercise of equity-based
compensation;
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purchases or other acquisitions
by broker-dealer subsidiaries of Bank of Marin Bancorp solely for the
purpose of market-making, stabilization or customer facilitation
transactions in junior stock or parity stock in the ordinary course of its
business;
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purchases or other acquisitions
by broker-dealer subsidiaries of Bank of Marin Bancorp for resale pursuant
to an offering by Bank of Marin Bancorp of our stock that is underwritten
by the related broker-dealer
subsidiary;
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any dividends or distributions of
rights or junior stock in connection with any shareholders’ rights plan or
repurchases of rights pursuant to any shareholders’ rights
plan;
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acquisition of record ownership
of junior stock or parity stock for the beneficial ownership of any other
person who is not Bank of Marin Bancorp or a subsidiary of Bank of Marin
Bancorp, including as trustee or custodian;
and
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the exchange or conversion of
junior stock for or into other junior stock or of parity stock for or into
other parity stock or junior stock but only to the extent that such
acquisition is required pursuant to binding contractual agreements entered
into before December 5, 2008 or any subsequent agreement for the
accelerated exercise, settlement or exchange thereof for common
stock.
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If we
repurchase shares of series B preferred stock from a holder other than the
initial selling securityholder, we must offer to repurchase a ratable portion of
the series B preferred stock then held by the initial selling
securityholder.
On any
dividend payment date for which full dividends are not paid, or declared and
funds set aside therefor, on the series B preferred stock and any other parity
stock, all dividends paid or declared for payment on that dividend payment date
(or, with respect to parity stock with a different dividend payment date, on the
applicable dividend date therefor falling within the dividend period and related
to the dividend payment date for the series B preferred stock), with respect to
the series B preferred stock and any other parity stock shall be declared
ratably among the holders of any such shares who have the right to receive
dividends, in proportion to the respective amounts of the undeclared and unpaid
dividends relating to the dividend period.
Subject
to the foregoing, such dividends (payable in cash, stock or otherwise) as may be
determined by our board of directors (or a duly authorized committee of the
board) may be declared and paid on our common stock and any other stock ranking
equally with or junior to the series B preferred stock from time to time out of
any funds legally available for such payment, and the series B preferred stock
shall not be entitled to participate in any such dividend.
Redemption
The
series B preferred stock may not be redeemed prior to February 15, 2012 unless
we have received aggregate gross proceeds from one or more qualified equity
offerings (as described below) equal to $7 million, which equals 25% of the
aggregate liquidation amount of the series B preferred stock on the date of
issuance. In such a case, we may redeem the series B preferred stock, subject to
the approval of Federal Reserve Board, in whole or in part, upon notice as
described below, up to a maximum amount equal to the aggregate net cash proceeds
received by us from such qualified equity offerings. A “qualified equity
offering” is a sale and issuance for cash by us, to persons other than Bank of
Marin Bancorp or its subsidiaries after December 5, 2008, of shares of perpetual
preferred stock, common stock or a combination thereof, that in each case
qualify as tier 1 capital of Bank of Marin Bancorp at the time of issuance under
the applicable risk-based capital guidelines of the Federal Reserve Board.
Qualified equity offerings do not include issuances made in connection with
acquisitions, issuances of trust preferred securities and issuances of common
stock and/or perpetual preferred stock made pursuant to agreements or
arrangements entered into, or pursuant to financing plans that were publicly
announced, on or prior to October 13, 2008.
After
February 15, 2012, the series B preferred stock may be redeemed at any time,
subject to the approval of the Federal Reserve Board, in whole or in part,
subject to notice as described below.
In any
redemption, the redemption price is an amount equal to the per share liquidation
amount plus accrued and unpaid dividends to but excluding the date of
redemption.
The
series B preferred stock will not be subject to any mandatory redemption,
sinking fund or similar provisions. Holders of shares of series B preferred
stock have no right to require the redemption or repurchase of the series B
preferred stock.
If fewer
than all of the outstanding shares of series B preferred stock are to be
redeemed, the shares to be redeemed will be selected either pro rata from the holders of
record of shares of series B preferred stock in proportion to the number of
shares held by those holders or in such other manner as our board of directors
or a committee thereof may determine to be fair and equitable.
We will
mail notice of any redemption of series B preferred stock by first class mail,
postage prepaid, addressed to the holders of record of the shares of series B
preferred stock to be redeemed at their respective last addresses appearing on
our books. This mailing will be at least 30 days and not more than 60 days
before the date fixed for redemption. Any notice mailed or otherwise given as
described in this paragraph will be conclusively presumed to have been duly
given, whether or not the holder receives the notice, and failure duly to give
the notice by mail or otherwise, or any defect in the notice or in the mailing
or provision of the notice, to any holder of series B preferred stock designated
for redemption will not affect the redemption of any other series B preferred
stock. Each notice of redemption will set forth the applicable redemption date,
the redemption price, the place where shares of series B preferred stock are to
be redeemed, and the number of shares of series B preferred stock to be redeemed
(and, if less than all shares of series B preferred stock held by the applicable
holder, the number of shares to be redeemed from the holder).
Shares of
series B preferred stock that are redeemed, repurchased or otherwise acquired by
us will revert to authorized but unissued shares of our preferred
stock.
Liquidation
Rights
In the
event that we voluntarily or involuntarily liquidate, dissolve or wind up our
affairs, holders of series B preferred stock will be entitled to receive an
amount per share, referred to as the total liquidation amount, equal to the
fixed liquidation preference of $1,000 per share, plus any accrued and unpaid
dividends, whether or not declared, to the date of payment. Holders of the
series B preferred stock will be entitled to receive the total liquidation
amount out of our assets that are available for distribution to shareholders,
after payment or provision for payment of our debts and other liabilities but
before any distribution of assets is made to holders of our common stock or any
other shares ranking, as to that distribution, junior to the series B preferred
stock.
If our
assets are not sufficient to pay the total liquidation amount in full to all
holders of series B preferred stock and all holders of any shares of outstanding
parity stock, the amounts paid to the holders of series B preferred stock and
other shares of parity stock will be paid pro rata in accordance with
the respective total liquidation amount for those holders. If the total
liquidation amount per share of series B preferred stock has been paid in full
to all holders of series B preferred stock and other shares of parity stock, the
holders of our common stock or any other shares ranking, as to such
distribution, junior to the series B preferred stock will be entitled to receive
all of our remaining assets according to their respective rights and
preferences.
For
purposes of the liquidation rights, neither the sale, conveyance, exchange or
transfer of all or substantially all of our property and assets, nor the
consolidation or merger by us with or into any other corporation or by another
corporation with or into us, will constitute a liquidation, dissolution or
winding-up of our affairs.
Voting
Rights
Except as
indicated below or otherwise required by law, the holders of series B preferred
stock will not have any voting rights.
Election of Two
Directors upon Non-Payment of Dividends. If the dividends on the series B
preferred stock have not been paid for an aggregate of six quarterly dividend
periods or more (whether or not consecutive), we will be required to increase
the number of directors then constituting our board of directors by two. Holders
of series B preferred stock, together with the holders of any outstanding parity
stock with like voting rights, referred to as voting parity stock, voting as a
single class, will be entitled to elect the two additional members of our board
of directors, referred to as the preferred stock directors, at the next annual
meeting (or at a special meeting called for the purpose of electing the
preferred stock directors prior to the next annual meeting) and at each
subsequent annual meeting until all accrued and unpaid dividends for all past
dividend periods have been paid in full. The election of any preferred stock
director is subject to the qualification that the election would not cause us to
violate corporate governance requirements of the NASDAQ Stock Market (or any
exchange on which our securities may be listed) that listed companies must have
a majority of independent directors.
Upon the
termination of the right of the holders of series B preferred stock and voting
parity stock to vote for preferred stock directors, as described above, the
preferred stock directors will immediately cease to be qualified as directors,
their term of office shall terminate immediately and the number of authorized
directors of Bank of Marin Bancorp will be reduced by the number of preferred
stock directors that the holders of series B preferred stock and voting parity
stock had been entitled to elect. The holders of a majority of shares of series
B preferred stock and voting parity stock, voting as a class, may remove any
preferred stock director, with or without cause, and the holders of a majority
of the shares series B preferred stock and voting parity stock, voting as a
class, may fill any vacancy created by the removal of a preferred stock
director. If the office of a preferred stock director becomes vacant for any
other reason, the remaining preferred stock director may choose a successor to
fill such vacancy for the remainder of the unexpired term.
Other Voting
Rights. So long as any shares of series B preferred stock are
outstanding, in addition to any other vote or consent of shareholders required
by law or by our articles of organization, the vote or consent of the holders of
at least 66
2/3% of the shares
of series B preferred stock at the time outstanding, voting separately as a
single class, given in person or by proxy, either in writing without a meeting
or by vote at any meeting called for the purpose, shall be necessary for
effecting or validating:
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any amendment or alteration of
our articles of organization to authorize or create or increase the
authorized amount of, or any issuance of, any shares of, or any securities
convertible into or exchangeable or exercisable for shares of, any class
or series of capital stock ranking senior to the series B preferred stock
with respect to payment of dividends and/or distribution of assets on any
liquidation, dissolution or winding up of Bank of Marin
Bancorp;
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any amendment, alteration or
repeal of any provision of the certificate of determination for the series
B preferred stock so as to adversely affect the rights, preferences,
privileges or voting powers of the series B preferred stock;
or
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any consummation of a binding
share exchange or reclassification involving the series B preferred stock
or of a merger or consolidation of Bank of Marin Bancorp with another
entity, unless the shares of series B preferred stock remain outstanding
following any such transaction or, if Bank of Marin Bancorp is not the
surviving entity, are converted into or exchanged for preference
securities and such remaining outstanding shares of series B preferred
stock or preference securities have rights, references, privileges and
voting powers that are not materially less favorable than the rights,
preferences, privileges or voting powers of the series B preferred stock,
taken as a whole.
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To the
extent of the voting rights of the series B preferred stock, each holder of
series B preferred stock will have one vote for each $1,000 of liquidation
preference to which such holder’s shares of series B preferred stock are
entitled.
The
foregoing voting provisions will not apply if, at or prior to the time when the
vote or consent would otherwise be required, all outstanding shares of series B
preferred stock have been redeemed or called for redemption upon proper notice
and sufficient funds have been set aside by us for the benefit of the holders of
series B preferred stock to effect the redemption.
The
following is a brief description of the terms of the warrant that may be resold
by the selling securityholders. This summary does not purport to be complete in
all respects. This description is subject to and qualified in its entirety by
reference to the warrant, a copy of which has been filed with the SEC and is
also available upon request from us.
Shares
of Common Stock Subject to the Warrant
The
warrant is initially exercisable for 154,242 shares of our common stock. If we
complete one or more qualified equity offerings on or prior to December 31, 2009
that result in our receipt of aggregate gross proceeds of not less than $28
million, which is equal to 100% of the aggregate liquidation preference of the
series B preferred stock, the number of shares of common stock underlying the
warrant then held by the selling securityholders will be reduced by 50% to
77,121 shares. The number of shares subject to the warrant are subject to the
further adjustments described below under the heading “—Adjustments to the
Warrant.”
Exercise
of the Warrant
The
initial exercise price applicable to the warrant is $27.23 per share of common
stock for which the warrant may be exercised. The warrant may be exercised at
any time on or before December 5, 2018 by surrender of the warrant and a
completed notice of exercise attached as an annex to the warrant and the payment
of the exercise price for the shares of common stock for which the warrant is
being exercised. The exercise price may be paid either by the withholding by
Bank of Marin Bancorp of such number of shares of common stock issuable upon
exercise of the warrant equal to the value of the aggregate exercise price of
the warrant determined by reference to the market price of our common stock on
the trading day on which the warrant is exercised or, if agreed to by us and the
warrantholder, by the payment of cash equal to the aggregate exercise price. The
exercise price applicable to the warrant is subject to the further adjustments
described below under the heading “—Adjustments to the Warrant.”
Upon
exercise of the warrant, certificates for the shares of common stock issuable
upon exercise will be issued to the warrantholder. We will not issue fractional
shares upon any exercise of the warrant. Instead, the warrantholder will be
entitled to a cash payment equal to the market price of our common stock on the
last day preceding the exercise of the warrant (less the pro-rated exercise
price of the warrant) for any fractional shares that would have otherwise been
issuable upon exercise of the warrant. We will at all times reserve the
aggregate number of shares of our common stock for which the warrant may be
exercised. As with our common stock currently, the shares of common stock
issuable upon exercise of the warrant will be listed with the NASDAQ Stock
Market.
Rights
as a Shareholder
The
warrantholder shall have no rights or privileges of the holders of our common
stock, including any voting rights, until (and then only to the extent) the
warrant has been exercised.
Transferability
The
initial selling securityholder may not transfer a portion of the warrant with
respect to more than 77,121 shares of common stock until the earlier of the date
on which Bank of Marin Bancorp has received aggregate gross proceeds from a
qualified equity offering of at least $28 million and December 31, 2009. The
warrant, and all rights under the warrant, are otherwise
transferable.
Adjustments
to the Warrant
Adjustments in Connection with Stock
Splits, Subdivisions, Reclassifications and Combinations. The number of
shares for which the warrant may be exercised and the exercise price applicable
to the warrant will be proportionately adjusted in the event we pay dividends or
make distributions of our common stock, subdivide, combine or reclassify
outstanding shares of our common stock.
Anti-dilution Adjustment.
Until the earlier of December 5, 2011 and the date the initial selling
securityholder no longer holds the warrant (and other than in certain permitted
transactions described below), if we issue any shares of common stock (or
securities convertible or exercisable into common stock) for less than 90% of
the market price of the common stock on the last trading day prior to pricing
such shares, then the number of shares of common stock into which the warrant is
exercisable and the exercise price will be adjusted. Permitted transactions
include issuances:
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as consideration for or to fund
the acquisition of businesses and/or related
assets;
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in connection with employee
benefit plans and compensation related arrangements in the ordinary course
and consistent with past practice approved by our board of
directors;
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in connection with public or
broadly marketed offerings and sales of common stock or convertible
securities for cash conducted by us or our affiliates pursuant to
registration under the Securities Act, or Rule 144A thereunder on a basis
consistent with capital-raising transactions by comparable financial
institutions (but do not include other private transactions);
and
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in connection with the exercise
of preemptive rights on terms existing as of December 5,
2008.
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Other Distributions. If we
declare any dividends or distributions other than our historical, ordinary cash
dividends, the exercise price of the warrant will be adjusted to reflect such
distribution.
Certain Repurchases. If we
effect a pro rata
repurchase of common stock both the number of shares issuable upon exercise of
the warrant and the exercise price will be adjusted.
Business Combinations. In the
event of a merger, consolidation or similar transaction involving Bank of Marin
Bancorp and requiring shareholder approval, the warrantholder’s right to receive
shares of our common stock upon exercise of the warrant shall be converted into
the right to exercise the warrant for the consideration that would have been
payable to the warrantholder with respect to the shares of common stock for
which the warrant may be exercised, as if the warrant had been exercised prior
to such merger, consolidation or similar transaction.
General
The
discussion below is a summary of various rights of shareholders, it is not
intended to be a complete statement of all rights. The discussion is
qualified in its entirety by reference to the Articles of Incorporation of the
Company, the Company’s Bylaws as well as the provisions of California and
federal law.
Authorized Capital
Stock.
The
Company’s Articles of Incorporation authorize the issuance of up to 15,000,000
shares of Company common stock, no par value, of which 5,144,992 shares were
outstanding as of November 30, 2008, and 5,000,000 shares of Company preferred
stock, no par value.
Issuance of
Stock. Under the Company’s Articles of Incorporation, shares
of common stock or preferred stock may be issued from time to time by the board
of directors without the approval of the shareholders.
Liquidation
Rights. In the event of liquidation, holders of common stock
of the Company are entitled to rights to assets distributable to shareholders on
a pro rata basis after satisfaction of liabilities and rights of holders of
preferred stock, if any.
Redemption
Rights. The Company is empowered by California law to buy its
shares of stock from its shareholders at the mutual accord of the shareholder
and the Company.
Preemptive
Rights. The Company’s Articles of Incorporation do not provide
for preemptive rights.
Voting
Rights. Each share of Company common stock is entitled
to one vote per share.
Cumulative
voting in the election of directors of the Company will apply by virtue of
California law. Cumulative voting entitles a shareholder to vote as
many votes as equals the number of shares the shareholder owns multiplied by the
number of directors to be elected. A shareholder may cast all his
votes for a single candidate or distribute such votes among any or all of the
candidates.
Shareholder Action without a
Meeting. The Company’s Bylaws provide that any action that is
required or permitted to be taken by shareholders at an annual or special
meeting may be taken by a written consent signed by the same number of
shareholders that would be required to approve a measure presented at an annual
or special meeting.
Shareholder Vote on Business
Combinations. In general, approval of a business combination
(a merger or sale of assets) involving the Company requires the approval of a
majority of the Board of Directors and a favorable vote of a majority of the
outstanding shares.
Special Meetings of
Shareholders. The Company’s Bylaws provide that a special
meeting of the shareholders may be called by, among others, holders of 10% or
more of the outstanding voting shares.
Dividends. The
Company may pay cash dividends out of funds legally available therefor, subject
to the restrictions set forth in the California General Corporation Law (the
“CGCL”). The CGCL provides that a corporation may make a distribution
to its shareholders if the corporation’s retained earnings equal at least the
amount of the proposed distribution. CGCL also provides that, in the
event that sufficient retained earnings are not available for the proposed
distribution, a corporation may nevertheless make a distribution to its
shareholders if it meets two conditions, which generally stated are as follows:
(i) the corporation’s assets equal at least 1-1/4 times its liabilities, and
(ii) the corporation’s current assets equal at least its current liabilities or,
if the average of the corporation’s earnings before taxes on income and before
interest expenses for the two preceding fiscal years was less than the average
of the corporation’s interest expenses for such fiscal years, then the
corporation’s current assets must equal at least 1-1/4 times its
current liabilities.
In
addition, the terms of Series B Preferred Stock contain restrictions on the
payment of dividends on our common stock. See the discussion,
“DESCRIPTION OF SERIES B PREFERRED STOCK” beginning on page 3.
Amendment to Charter and
Bylaws. Amendments to the Company’s Articles of Incorporation
generally require the approval of a majority vote of the Company’s Board of
Directors and also by a majority of the outstanding shares of the Company’s
voting stock. The Company’s Bylaws may be amended by a majority vote
of the Board of Directors or the affirmative vote of a majority of the total
votes eligible to be voted by shareholders.
Board of
Directors. The Company’s Bylaws provide that the number of
directors shall be not less than 9 nor more than 17 with the exact number of
directors fixed by a resolution of the board or shareholders. The
number of directors has been fixed at 14.
Directors
of the Company will also be elected annually for a one year term.
In
general, the removal of a director of the Company requires a vote of a majority
of the shareholders at a meeting.
Nomination to the Board of
Directors. The Company’s Bylaws require shareholders to comply
with certain prior notice provisions in connection with the nomination of
persons to become directors of the Company. Failure to comply with
these provisions may result in the nomination being disregarded.
Dissenters’
Rights. Because the Company is a California corporation, the
dissenters’ rights available to Company shareholders also will be governed by
Chapter 13 of the CGCL.
Preferred
Stock. The preferred stock may be issued from time to time in
one or more series without action by the shareholders. The board of
directors is authorized to designate and to fix the number of shares of any such
series of preferred stock and to determine and alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of preferred stock, including, but not limited to, dividend rate, voting,
liquidation preference and conversion rights. The board of directors,
within the limits stated in any resolution of the board of directors originally
fixing the number of shares constituting any series, may increase or decrease
the number of shares in such series (but not below the number of shares of any
series subsequent to the issue of shares of that series).
Our
series B preferred stock has, and any other series of preferred stock upon
issuance will have, preference over our common stock with respect to the payment
of dividends and the distribution of assets in the event of our liquidation or
dissolution. Our preferred stock also has such other preferences as currently,
or as may be, fixed by our board of directors.
Financial
Information. The Company currently files certain periodic
information and reports with the SEC pursuant to the Securities Exchange Act of
1934, including an annual report and quarterly reports containing financial
information. Copies of these reports are available for review at the
SEC’s public reference facilities at 100 F Street, N.E., Room 1580, Washington,
D.C. 20549. Information on the operation of the public reference
rooms may be obtained by calling the SEC at 1-800-SEC-0330. The SEC
also maintains an internet website that will contain the Company’s periodic
reports, proxy statements and other information. The address of that
site is www.sec.gov.
Our
common stock is listed on NASDAQ Stock Market. Outstanding shares of our common
stock are validly issued, fully paid and non-assessable. Holders of our common
stock are not, and will not be, subject to any liability as
shareholders.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Registrar
and Transfer Company.
Restrictions
on Ownership
The Bank
Holding Company Act requires any “bank holding company,” as defined in the Bank
Holding Company Act, to obtain the approval of the Federal Reserve Board prior
to the acquisition of 5% or more of our common stock. Any person, other than a
bank holding company, is required to obtain prior approval of the Federal
Reserve Board to acquire 10% or more of our common stock under the Change in
Bank Control Act. Any holder of 25% or more of our common stock, or a holder of
5% or more if such holder otherwise exercises a “controlling influence” over us,
is subject to regulation as a bank holding company under the Bank Holding
Company Act.
The
selling securityholders and their successors, including their transferees, may
sell the securities directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions from the selling securityholders or the purchasers of
the securities. These discounts, concessions or commissions as to any particular
underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved.
The
securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale or at negotiated prices. These sales may be effected in
transactions, which may involve crosses or block transactions:
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on any national securities
exchange or quotation service on which the preferred stock or the common
stock may be listed or quoted at the time of sale, including, as of the
date of this prospectus, the NASDAQ Stock Market in the case of the common
stock;
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in the over-the-counter
market;
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in transactions otherwise than on
these exchanges or services or in the over-the-counter market;
or
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through the writing of options,
whether the options are listed on an options exchange or
otherwise.
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In
addition, any securities that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
In
connection with the sale of the securities or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the common stock issuable upon exercise of
the warrant in the course of hedging the positions they assume. The selling
securityholders may also sell short the common stock issuable upon exercise of
the warrant and deliver common stock to close out short positions, or loan or
pledge the series B preferred stock or the common stock issuable upon exercise
of the warrant to broker-dealers that in turn may sell these
securities.
The
aggregate proceeds to the selling securityholders from the sale of the
securities will be the purchase price of the securities less discounts and
commissions, if any.
In
effecting sales, broker-dealers or agents engaged by the selling securityholders
may arrange for other broker-dealers to participate. Broker-dealers or agents
may receive commissions, discounts or concessions from the selling
securityholders in amounts to be negotiated immediately prior to the
sale.
In
offering the securities covered by this prospectus, the selling securityholders
and any broker-dealers who execute sales for the selling securityholders may be
deemed to be “underwriters” within the meaning of Section 2(a)(11) of the
Securities Act in connection with such sales. Any profits realized by the
selling securityholders and the compensation of any broker-dealer may be deemed
to be underwriting discounts and commissions. Selling securityholders who are
“underwriters” within the meaning of Section 2(a)(11) of the Securities Act will
be subject to the prospectus delivery requirements of the Securities Act and may
be subject to certain statutory and regulatory liabilities, including
liabilities imposed pursuant to Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5 under the Securities Exchange Act of 1934, or the Exchange
Act.
In order
to comply with the securities laws of certain states, if applicable, the
securities must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the securities may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of securities pursuant to this prospectus and to the activities of the
selling securityholders. In addition, we will make copies of this prospectus
available to the selling securityholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act, which may include
delivery through the facilities of the NASDAQ Stock Market pursuant to Rule 153
under the Securities Act.
At the
time a particular offer of securities is made, if required, a prospectus
supplement will set forth the number and type of securities being offered and
the terms of the offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount, commission and
other item constituting compensation, any discount, commission or concession
allowed or reallowed or paid to any dealer, and the proposed selling price to
the public.
We do not
intend to apply for listing of the series B preferred stock on any securities
exchange or for inclusion of the series B preferred stock in any automated
quotation system unless requested by the initial selling shareholder. No
assurance can be given as to the liquidity of the trading market, if any, for
the series B preferred stock.
We have
agreed to indemnify the selling securityholders against certain liabilities,
including certain liabilities under the Securities Act. We have also agreed,
among other things, to bear substantially all expenses (other than underwriting
discounts and selling commissions) in connection with the registration and sale
of the securities covered by this prospectus.
On
December 5, 2008, we issued the securities covered by this prospectus to the
United States Department of Treasury, which is the initial selling
securityholder under this prospectus, in a transaction exempt from the
registration requirements of the Securities Act. The initial selling
securityholder, or its successors, including transferees, may from time to time
offer and sell, pursuant to this prospectus or a supplement to this prospectus,
any or all of the securities they own. The securities to be offered under this
prospectus for the account of the selling securityholders are:
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|
•
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28,000 shares of series B
preferred stock, representing beneficial ownership of 100% of the shares
of series B preferred stock outstanding on the date of this
prospectus;
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|
•
|
a warrant to purchase 154,242
shares of our common stock, representing beneficial ownership of
approximately 2.99% of our common stock as of November 30, 2008;
and
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•
|
154,242 shares of our common
stock issuable upon exercise of the warrant, which shares, if issued,
would represent ownership of approximately 2.99% of our common stock as of
November 30, 2008.
|
For
purposes of this prospectus, we have assumed that, after completion of the
offering, none of the securities covered by this prospectus will be held by the
selling securityholders.
Beneficial
ownership is determined in accordance with the rules of the SEC and includes
voting or investment power with respect to the securities. To our knowledge, the
initial selling securityholder has sole voting and investment power with respect
to the securities.
We do not
know when or in what amounts the selling securityholders may offer the
securities for sale. The selling securityholders might not sell any or all of
the securities offered by this prospectus. Because the selling securityholders
may offer all or some of the securities pursuant to this offering, and because
currently no sale of any of the securities is subject to any agreements,
arrangements or understandings, we cannot estimate the number of the securities
that will be held by the selling securityholders after completion of the
offering.
Other
than with respect to the acquisition of the securities, the initial selling
securityholder has not had a material relationship with us.
Information
about the selling securityholders may change over time and changed information
will be set forth in supplements to this prospectus if and when
necessary.
The
validity of the series B preferred stock, the warrant and the common stock
offered hereby will be passed upon for us by Reitner, Stuart and
Moore.
The
consolidated financial statements of Bank of Marin Bancorp appearing in Bank of
Marin Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2007,
and the effectiveness of Bank of Marin Bancorp’s internal control over financial
reporting as of December 31, 2007 have been audited by Moss Adams LLP,
independent registered public accounting firm, as set forth in their reports
thereon, included therein, and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such reports given on the authority of such firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. Our SEC filings are available to the public over the Internet at
the SEC’s website at http:/www.sec.gov. Copies of certain information filed by
us with the SEC are also available on our website at http://www.bankofmarin.com.
Our website is not a part of this prospectus. You may also read and copy any
document we file at the SEC’s public reference room, 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference room.
The SEC
allows us to “incorporate by reference” information we file with it, which means
that we can disclose important information to you by referring you to other
documents. The information incorporated by reference is considered to be a part
of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. In all cases, you should
rely on the later information over different information included in this
prospectus.
We
incorporate by reference the documents listed below and all future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the termination of the offering, except to the extent that any
information contained in such filings is deemed “furnished” in accordance with
SEC rules:
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•
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Annual Report on Form 10-K for
the year ended December 31,
2007;
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•
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Quarterly Reports on Form 10-Q
for the quarters ended March 31, 2008, June 30, 2008 and September 30,
2008;
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•
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Current Reports on Form 8-K filed
on January 22, 2008, February 21, 2008, March 7, 2008, April 18, 2008, May
2, 2008, June 26, 2008, July 21, 2008, July 25, 2008, October 20, 2008,
November 14, 2008, December 2, 2008 and December 29, 2008;
and
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•
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Registration
of Securities on Form 8-A filed on July 2,
2007.
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You may
request a copy of these filings, at no cost, by writing or telephoning us at the
following address:
Bank of
Marin Bancorp
504
Redwood Blvd., Suite 100
Novato,
California 02111
Telephone:
(415) 763-4523
Attn:
Corporate Secretary
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
Item 14.
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Other Expenses of Issuance and
Distribution.
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The
following table sets forth the various expenses to be incurred in connection
with the sale and distribution of the Securities being registered hereby, all of
which will be borne by Bank of Marin Bancorp (except any underwriting discounts
and commissions and expenses incurred by the selling securityholders for
brokerage, accounting, tax or legal services or any other expenses incurred by
the selling securityholders in disposing of the shares). All amounts shown are
estimates except the SEC registration fee.
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SEC
registration fee
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$ |
1,267 |
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|
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Legal
fees and expenses
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$ |
20,000 |
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Accounting
fees and expenses
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$ |
5,000 |
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Miscellaneous
expenses
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$ |
0 |
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Total
expenses
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|
$ |
26,267 |
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Item 15.
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Indemnification of Directors and
Officers.
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Bank of
Marin Bancorp and its subsidiary, Bank of Marin, are subject to the California
General Corporation Law (the "CGCL"), which provides a detailed statutory
framework covering indemnification of any officer or other agent of a
corporation who is made or threatened to be made a party to any legal proceeding
by reason of his or her services on behalf of such corporation.
With
respect to indemnification, the CGCL provides that to the extent any officer,
director or other agent of a corporation is successful "on the merits" in
defense of any legal proceeding to which such person is a party or is threatened
to be made a party by reason of his or her service on behalf of such corporation
or in defense of any claim, issue, or matter therein, such agent shall be
indemnified against expenses actually and reasonably incurred by the agent in
connection therewith, but does not require indemnification in any other
circumstance. The CGCL also provides that a corporation may indemnify any agent
of the corporation, including officers and directors, against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in a third party proceeding against such person by reason of his or her services
on behalf of the corporation, provided the person acted in good faith and in a
manner he or she reasonably believed to be in the best interests of such
corporation. The CGCL further provides that in derivative suits a corporation
may indemnify such a person against expenses incurred in such a proceeding,
provided such person acted in good faith and in a manner he or she reasonably
believed to be in the best interests of the corporation and its shareholders.
Indemnification is not available in derivative actions (i) for amounts paid or
expenses incurred in connection with a matter that is settled or otherwise
disposed of without court approval or (ii) with respect to matters for which the
agent shall have been adjudged to be liable to the corporation unless the court
shall determine that such person is entitled to indemnification.
The CGCL
permits the advancing of expenses incurred in defending any proceeding against a
corporate agent by reason of his or her service on behalf of the corporation
upon the giving of a promise to repay any such sums in the event it is later
determined that such person is not entitled to be indemnified. Finally, the CGCL
provides that the indemnification provided by the statute is not exclusive of
other rights to which those seeking indemnification may be entitled, by bylaw,
agreement or otherwise, to the extent additional rights are authorized in a
corporation's articles of incorporation. The law further permits a corporation
to procure insurance on behalf of its directors, officers and agents against any
liability incurred by any such individual, even if a corporation would not
otherwise have the power under applicable law to indemnify the director, officer
or agent for such expenses.
The
Bylaws of Bank of Marin Bancorp and Bank of Marin contain provisions
substantially identical to the provisions of the CGCL.
Bank of
Marin Bancorp has entered into agreements to indemnify its directors and
executive officers. These agreements, among other things, provide
that Bank of Marin Bancorp will indemnify the director or executive officer to
the fullest extent permitted by law for claims arising in his or her capacity as
a director or officer of Bank of Marin Bancorp or in connection with his or her
service at the request of Bank of Marin Bancorp for another corporation or
entity. The indemnification agreements also establish the procedures
that will apply in the event a director or officer makes a claim for
indemnification.
In
addition, Bank of Marin Bancorp and Bank of Marin maintain directors’ and
officers’ liability insurance policies.
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EXHIBIT
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NUMBER
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DESCRIPTION
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4.1
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Articles
of Incorporation, of the Registrant (filed as Exhibit 3.01 to the
Registrant’s Annual Report on Form 10-K for the year ending December 31,
2007, filed on March 14, 2008 and incorporated herein by
reference).
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4.2
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Bylaws
of the Registrant (filed as Exhibit 3.02 to the Registrant’s Annual Report
on Form 10-K for the year ending December 31, 2007, filed on March 14,
2008 and incorporated herein by reference).
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4.3
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Purchase
Agreement, dated as of December 5, 2008, between the Registrant and the
United States Department of the Treasury (filed as Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K filed on December 9, 2008 and
incorporated herein by reference).
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4.4
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Warrant,
dated December 5, 2008, to purchase shares of Common Stock of the
Registrant (filed as Exhibit 4.2 to the Registrant’s Current Report on
Form 8-K filed on December 9, 2008 and incorporated herein by
reference).
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4.5
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Certificate
of Determination for Preferred Stock (filed as Exhibit 3.1 to the
Registrant’s Current Report on Form 8-K filed on December 9, 2008 and
incorporated herein by reference).
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4.6
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Form
of Stock Certificate for Preferred Stock (filed as Exhibit 4.1 to the
Registrant’s Current Report on Form 8-K filed on December 9, 2008 and
incorporated herein by reference).
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Opinion
of Reitner, Stuart & Moore.
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Consent
of Moss Adams LLP.
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23.2
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Consent
of Reitner, Stuart & Moore, included in Exhibit 5.1 filed
herewith.
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Powers
of
Attorney
|
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, as amended (the “Securities Act of 1933”);
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of this 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 this registration statement. Notwithstanding the
foregoing, any increase or decrease in the 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 20 percent 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 this registration statement or any material change to
such information in this registration statement;
provided, however, that
paragraphs (1)(i), (1)(ii) and (1)(iii) 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 Securities Exchange Act of 1934,
as amended (the “Exchange Act”), that are incorporated by reference in this
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of this registration statement.
(2) That,
for the purposes of determining any liability under the Securities Act of 1933,
each 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 the 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) each
prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona
fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of a registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) the
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
The
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 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 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.
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 indemnification provisions described herein, 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable grounds
to believe that the Registrant meets all of the requirements of filing on Form
S-3 and authorized this Registration Statement to be signed on its behalf by the
undersigned, in the City of Novato, State of California on January 16,
2009.
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BANK
OF MARIN BANCORP
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By:
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/s/ Russell A. Colombo
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Russell
A. Colombo
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President
and Chief Executive
Officer
|
In accordance with the requirements of
the Securities Act of 1933, this Registration Statement has been signed by the
following persons in the capacities indicated on January 16,
2009.
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Signature
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Capacity
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/s/ Joel Sklar, M.D.
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Chairperson
of the Board
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JOEL
SKLAR, M.D.
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/s/ Judith O’Connell Allen
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Director
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JUDITH
O’CONNELL ALLEN
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/s/ Russell A. Colombo
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Director,
President and CEO
|
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RUSSELL
A. COLOMBO
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/s/ Christina J. Cook
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Executive
Vice President and Chief Financial
|
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CHRISTINA
J. COOK
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Officer
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/s/ James E. Dietz
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Director
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JAMES
E. DIETZ
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/s/ Thomas M. Foster
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Director
|
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Thomas
M. Foster
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/s/ Robert Heller
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Director
|
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ROBERT
HELLER
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/s/ Norma J. Howard
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Director
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NORMA
J. HOWARD
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/s/ J. Patrick Hunt
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Director
|
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J.
PATRICK HUNT
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/s/ Stuart D. Lum
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Director
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STUART
D. LUM
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/s/ Joseph D. Martino
|
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Director
|
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JOSEPH
D. MARTINO
|
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/s/ William A. McDevitt,
Jr.
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Director
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WILLIAM
A. MCDEVITT, JR.
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/s/ Brian M. Sobel
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Director
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BRIAN
M. SOBEL
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/s/ J. Dietrich Stroeh
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Director
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J.
DIETRICH STROEH
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/s/ Jan I. Yanehiro
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Director
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JAN
I. YANEHIRO
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II-7