formposam.htm
As filed
with the Securities and Exchange Commission April 28,
2009 Registration No.
333-156782
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________________
POST
EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
____________________________
BANK
OF MARIN BANCORP
(Exact name of
registrant as specified in its charter)
|
California
|
20-8859754
|
|
(State or
other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification
No.)
|
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
641
Higuera Street, Suite 302
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 post effective amendment.
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, please 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 of 1933, please check the following box and
list the Securities Act of 1933 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 of 1933, please check the following box and list the Securities
Act of 1933 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):
|
Large
accelerated filer ¨
|
|
Accelerated
filer x
|
|
Non-accelerated
filer ¨
|
|
Smaller
reporting company ¨
|
|
(Do not check
if a smaller reporting company)
|
|
|
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.
Explanatory
Note
On
January 16, 2009, Bank of Marin Bancorp (the “Registrant”) filed a Form S-3
(File No. 333-156782 ) (the “S-3”), registering with the Securities and Exchange
Commission (“SEC”), a total of 28,000 shares of its Fixed Rate Cumulative
Perpetual Preferred Stock, Series B, no par value (hereinafter referred to as
the “Series B Preferred Shares” or the “Series B Preferred Stock”), a warrant to
purchase 154,242 shares of common stock, (the “Warrant”) and any shares of
common stock issuable from time to time upon exercise of the warrant (the
“Warrant Shares”), all in connection with the Registrant’s participation in the
Capital Purchase Program (“CPP”), authorized under the Troubled Asset Relief
Program (“TARP”), as is documented by the Letter Agreement entered into by and
between the Registrant and the United States Treasury (the “Treasury”), dated
December 5, 2008 (collectively, the “TARP Transaction”).
On
March 31, 2009, the Registrant executed a letter agreement with Treasury (the
“Letter Agreement”) and terminated its participation in the CPP by returning the
funds received from Treasury in exchange for cancelled share certificates
representing the Series B Preferred Shares originally purchased by Treasury in
the TARP Transaction (the “Repurchase Transaction”). Specifically,
the Registrant returned to the Treasury a total of $28,178,888.89, which
includes the original investment amount of $28,000,000 plus accrued but unpaid
dividends of $178,888.89, and received in return, and cancelled, the share
certificate for the Series B Preferred Shares. In addition, the
Registrant opted not to repurchase the Warrant or the Warrant Shares from
Treasury.
As
a result of the Repurchase Transaction, all Series B Preferred Shares were
cancelled and the Registrant does not intend to issue, transfer nor sell the
Series B Preferred Shares. As such, there is no need for the Series B
Preferred Shares to remain as registered securities. The Registrant
desires to withdraw the Series B Preferred Shares from the S-3. In
addition, the Registrant desires to amend the prospectus portion of the S-3 in
such a manner as is consistent with terms of the Repurchase Transaction and as
necessary to evidence the Registrant’s withdrawal of the Series B Preferred
Shares from the S-3.
As
a result of the Repurchase Transaction and the Registrant’s decision to not
repurchase the Warrant, pursuant to the terms of the Letter Agreement, the terms
of the Warrant were slightly modified. The Registrant desires to
amend the S-3 in such a manner as is necessary to reflect the modifications made
to the terms of the Warrant. In addition, the Registrant desires to
attach the Warrant, as modified, as an exhibit to this amendment.
Accordingly, the
Registrant hereby amends the S-3 by withdrawing the Series B Preferred Shares
from the S-3, amending the terms of the prospectus portion of the S-3 in such a
manner as is consistent with terms of the Repurchase Transaction and as
necessary to evidence the Registrant’s withdrawal of the Series B Preferred
Shares from the S-3 and amending the terms of the Warrant.
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 APRIL 28, 2009
PROSPECTUS
BANK
OF MARIN BANCORP
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
a portion or all of the 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 warrants. In this prospectus, we refer to the warrant and the
shares of common stock issuable upon exercise of the warrant, collectively, as
the securities. In addition, the term warrant shall include any
portions of the warrant the initial selling securityholder may divide the
original warrant into.
The warrant was
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.
The warrant is not
listed on an exchange, and, 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 April 22, 2009, the
closing price of our common stock on the NASDAQ Stock Market was $25.45 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 April 28, 2009.
|
|
1
|
|
|
2
|
|
|
2
|
|
|
2
|
|
|
3
|
|
|
5
|
|
|
8
|
|
|
10
|
|
|
11
|
|
|
11
|
|
|
11
|
|
|
11
|
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 bank holding company
headquartered in Novato, California, and its subsidiary on a consolidated basis,
unless the context otherwise requires. References to “Bank of Marin” mean Bank
of Marin, which is our 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.
FORWARD-LOOKING STATEMENTS
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.
DESCRIPTION
OF WARRANT TO PURCHASE COMMON STOCK
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. The
number of shares subject to the warrant are subject to the 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:
|
|
—
|
as
consideration for or to fund the acquisition of businesses and/or related
assets;
|
|
|
—
|
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;
|
|
|
—
|
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
|
|
|
—
|
in connection
with the exercise of preemptive rights on terms existing as of December 5,
2008.
|
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.
DESCRIPTION
OF COMMON STOCK
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.
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.
Shareholder Rights
Plan. We have adopted a shareholder rights plan, and issued
rights to all shareholders of record as of July 23, 2007, that entitle the
registered holder upon certain events to purchase from the Company one
one-hundredth of a share of Series A Junior Participating Preferred stock, no
par value of Company at a price of $125 per one one-hundredth of a preferred
share, subject to adjustments. The shareholder rights plan is
designed to discourage takeovers that involve abusive tactics or do not provide
fair value to shareholders.
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 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:
|
|
—
|
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;
|
|
|
—
|
in the
over-the-counter market;
|
|
|
—
|
in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
|
|
|
—
|
through the
writing of options, whether the options are listed on an options exchange
or otherwise.
|
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 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 warrant on any securities exchange or
for the inclusion of the warrant in any automated quotation system.
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:
|
|
—
|
A warrant to
purchase 154,242 shares of our common stock, representing beneficial
ownership of approximately 3.00% of our common stock as of December 31,
2008; and
|
|
|
—
|
154,242
shares of our common stock issuable upon exercise of the warrant, which
shares, if issued, would represent ownership of approximately 3.00% of our
common stock as of December 31,
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
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,
2008, and the effectiveness of Bank of Marin Bancorp’s internal control over
financial reporting as of December 31, 2008 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.
INCORPORATION BY REFERENCE
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:
|
|
—
|
Annual Report
on Form 10-K for the year ended December 31,
2008;
|
|
|
—
|
Quarterly
Reports on Form 10-Q for the quarters ended March 31,
2008, June 30, 2008 and September 30,
2008;
|
|
|
—
|
Current
Reports on Form 8-K filed on January 20, 2009, January 26, 2009, March 16,
2009, March 26, 2009, March 31, 2009, April 9, 2009, April 20,
2009;
|
|
|
—
|
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
|
|
|
—
|
Registration
of Securities on Form 8-A filed on July 2,
2007.
|
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)
884-7781
Attn: Corporate
Secretary
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
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.
|
SEC
registration fee
|
|
$ |
1,267 |
|
|
|
|
|
|
|
|
Legal fees
and expenses
|
|
|
20,000 |
|
|
|
|
|
|
|
|
Accounting
fees and expenses
|
|
|
5,000 |
|
|
|
|
|
|
|
|
Miscellaneous
expenses
|
|
|
0 |
|
|
|
|
|
|
|
|
Total
expenses
|
|
$ |
26,267 |
|
Item 15. Indemnification of Directors and
Officers.
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.
Item 16. Exhibits
|
EXHIBIT
|
|
|
NUMBER
|
DESCRIPTION
|
|
|
|
|
4.1
|
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).
|
|
|
|
|
4.2
|
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).
|
|
|
|
|
4.3
|
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).
|
|
|
|
|
|
Warrant,
dated December 5, 2008, to purchase shares of Common Stock of the
Registrant, as amended.
|
|
|
|
|
5.1
|
Opinion of
Reitner, Stuart & Moore (previously filed).
|
|
|
|
|
|
Consent of
Moss Adams LLP.
|
|
|
|
|
23.2
|
Consent of
Reitner Stuart & Moore (previously filed, and included in exhibit
5.1)
|
|
|
|
|
24.1
|
Powers of
Attorney (previously
filed).
|
Item 17. Undertakings.
The undersigned
registrant hereby undertakes:
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment
to this registration statement:
(i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, 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, as amended, the Registrant has duly
caused this Post-effective Amendment No. 1 to Registration Statement of Form S-3
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Novato, State of California on April 28, 2009.
|
|
BANK OF MARIN
BANCORP
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Russell A. Colombo
|
|
|
|
|
Russell A.
Colombo
|
|
|
|
|
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 April 28,
2009.
|
Signature
|
|
Capacity
|
|
|
|
|
|
*
|
|
Chairperson
of the Board
|
|
JOEL SKLAR,
M.D.
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
JUDITH
O’CONNELL ALLEN
|
|
|
|
|
|
|
|
/s/ Russell A. Colombo
|
|
Director,
President and CEO
|
|
RUSSELL A.
COLOMBO
|
|
|
|
|
|
|
|
/s/ Christina J. Cook
|
|
Executive
Vice President and Chief Financial
|
|
CHRISTINA J.
COOK
|
|
Officer
|
|
|
|
|
|
*
|
|
Director
|
|
JAMES E.
DIETZ
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
THOMAS M.
FOSTER
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
ROBERT
HELLER
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
NORMA J.
HOWARD
|
|
|
|
*
|
|
Director
|
|
J. PATRICK
HUNT
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
STUART D.
LUM
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
JOSEPH D.
MARTINO
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
WILLIAM A.
MCDEVITT, JR.
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
BRIAN M.
SOBEL
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
J. DIETRICH
STROEH
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
JAN I.
YANEHIRO
|
|
|
*
By Russell A. Colombo, as Attorney-in-Fact