-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NLxp1DrQCb93N2OqbbmaHqNe9CGDOyhDGsdyWYYGKoT01VV0VTxqltzcIm+E9FM5 KZaIVN9/iAt5tCFCOMuYNw== 0001095811-01-503401.txt : 20010727 0001095811-01-503401.hdr.sgml : 20010727 ACCESSION NUMBER: 0001095811-01-503401 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20010726 EFFECTIVENESS DATE: 20010726 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HERITAGE COMMERCE CORP CENTRAL INDEX KEY: 0001053352 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 770469558 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-65884 FILM NUMBER: 1689561 BUSINESS ADDRESS: STREET 1: 150 ALMADEN BOULEVARD CITY: SAN JOSE STATE: CA ZIP: 95113 BUSINESS PHONE: 4089476900 MAIL ADDRESS: STREET 1: 150 ALMADEN BOULEVARD CITY: SAN JOSE STATE: CA ZIP: 95113 S-8 1 f74339ors-8.txt FORM S-8 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 HERITAGE COMMERCE CORP ---------------------- (Exact name of registrant as specified in its charter) CALIFORNIA 77-0469558 --------------------------------- ---------------------- (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 150 ALMADEN BOULEVARD, SAN JOSE, CA 95113 ----------------------------------------- (Address of principal executive offices) HERITAGE COMMERCE CORP AMENDED AND RESTATED 1994 TANDEM STOCK OPTION PLAN ------------------------------------------------------------------------------- (Full title of plans) BRAD L. SMITH HERITAGE COMMERCE CORP 150 ALMADEN BOULEVARD SAN JOSE, CA 95113 (408) 947-6900 --------------------------------------------- (Name, address and telephone number of agent for service) CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------- Title of securities Amount to be Proposed maximum offering Proposed maximum aggregate Amount of to be registered registered price per share(1) offering price(1) registration fee Heritage Commerce Corp Amended and Restated 1994 Tandem Stock Option Plan (common stock and related options) 500,000 $8.30 $4,150,000.00 $1,037.50 - ----------------------------------------------------------------------------------------------------------------------------
(1) In accordance with Rule 457(h), based on the average of the bid and ask price for Heritage Commerce Corp common stock as of July 24, 2001. This registration statement shall hereafter become effective in accordance with Rule 462 promulgated under the Securities Act of 1933, as amended. Pursuant to General Instruction E of Form S-8, the contents of Registration Statement No. 333-59277 (filed July 17, 1998) are incorporated by reference. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. Heritage Commerce Corp (the "Company") hereby incorporates by reference in this registration statement the following documents: (a) The Company's annual report on Form 10-K for the year ended December 31, 2000, as filed with the Securities and Exchange Commission (the "Commission") on March 30, 2001 and as amended on April 6, 2001; (b) The Company's quarterly report on Form 10-Q for the period ended March 31, 2001, as filed with the Commission on May 15, 2001; (c) The Company's Current Reports on Form 8-K dated January 26, 2001, March 27, 2001 and April 24, 2001, filed by the Company with the Commission pursuant to Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act"). (d) The description of the Company's common stock contained in the Company's Registration Statement on Form 8-A, as filed with the Commission on March 5, 1998. (e) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the registrant document referred to in (a) above. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. The class of securities to be offered is registered under Section 12 of the Exchange Act. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS. Section 317 of the California General Corporations Law (the "CGCL") authorizes a court to award, or a corporation's board of directors to grant, indemnity to directors and officers who are parties or are threatened to be made parties to any proceeding (with certain exceptions) by reason of the fact that the person is or was an agent of the corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with the proceeding if that person acted in good faith and in a manner the person reasonably believed to be in the best interests of the corporation. Section 204 of the CGCL provides that this limitation on liability has no effect on a director's liability (i) for acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) for acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director, (iii) for any transaction from which a director derived an improper personal benefit, (iv) for acts 2 3 or omissions that show a reckless disregard for the director's duty to the corporation or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of a serious injury to the corporation or its shareholders, (v) for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director's duty to the corporation or its shareholders, (vi) under Section 310 of the CGCL (concerning contracts or transactions between the corporation and a director) or (vii) under Section 316 of the CGCL (directors' liability for improper dividends, loans and guarantees). In accordance with Section 317, the Company's Articles of Incorporation (the "Articles"), limit the liability of a directors, officers and employees to the Company or its shareholders for monetary damages to the fullest extent permissible under California law, and in excess of that authorized under Section 317. The Articles and the Company's By-Laws further provide for indemnification of corporate agents to the maximum extent permitted by the CGCL. The Company also maintains insurance policies which insure its officers and directors against certain liabilities in an annual aggregate maximum amount of $20,000,000. The foregoing summaries are necessarily subject to the complete text of the statute, the Articles, the By-Laws referred to above and are qualified in their entirety by reference thereto. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The Exhibits to this Registration Statement are listed in the Exhibit Index beginning on page E-1 of this Registration Statement, which Index is incorporated herein by reference. ITEM 9. UNDERTAKINGS. (a) Rule 415 Offering. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. 3 4 (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Filings incorporating subsequent Exchange Act documents by reference. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Request for acceleration of effective date of filing of registration statement on Form S-8. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 4 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of San Jose, State of California, on June 28, 2001. HERITAGE COMMERCE CORP (Registrant) By /s/ Brad L. Smith -------------------------------------- Brad L. Smith Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Brad L. Smith Chairman and Chief Executive Officer June 28, 2001 - --------------------------------------- Brad L. Smith /s/ Lawrence D. McGovern Executive Vice President and Chief June 28, 2001 - --------------------------------------- Financial Officer (Principal Lawrence D. McGovern Financial and Accounting Officer) /s/ Frank G. Bisceglia Director June 28, 2001 - --------------------------------------- Frank G. Bisceglia /s/ James R. Blair Director June 28, 2001 - --------------------------------------- James Blair /s/ Richard L. Conniff Director, President and COO June 28, 2001 - --------------------------------------- Richard L. Conniff /s/ William J. Del Biaggio, Jr. Director June 28, 2001 - --------------------------------------- William J. Del Biaggio, Jr. /s/ Anneke Dury Director June 28, 2001 - --------------------------------------- Anneke Dury
5 6 Signatures (Continued)
Signature Title Date --------- ----- ---- /s/ Hurt G. Hammerstrom Director June 28, 2001 - --------------------------------------- Kurt G. Hammerstrom /s/ John W. Larsen Director June 28, 2001 - --------------------------------------- John W. Larsen /s/ Roy E. Lave Director June 28, 2001 - --------------------------------------- Roy E. Lave /s/ Louis O. Normandin Director June 28, 2001 - --------------------------------------- Louis O. Normandin /s/ Jack L. Peckham Director June 28, 2001 - --------------------------------------- Jack L. Peckham /s/ Robert W. Peters Director June 28, 2001 - --------------------------------------- Robert W. Peters /s / Humphrey P. Polanen Director June 28, 2001 - --------------------------------------- Humphrey P. Polanen /s/ Howard Weiland Director June 28, 2001 - --------------------------------------- Howard Weiland
6 7 POWER OF ATTORNEY Know all men by these presents that each of the undersigned does hereby make, constitute and appoint Brad L. Smith and Lawrence D. McGovern, or either of them, as the true and lawful attorney-in-fact of the undersigned, with full power of substitution and revocation, for and in the name, place and stead of the undersigned, to execute and deliver the Registration Statement on Form S-8, and any and all amendments thereto, including without limitation pre-effective and post-effective amendments thereto; such Form S-8 and each such amendment to be in such form and to contain such terms and provisions as said attorney or substitute shall deem necessary or desirable; giving and granting unto said attorney, or to such person as in any case may be appointed pursuant to the power of substitution herein given, full power and authority to do and perform any and every act and thing whatsoever requisite, necessary or, in the opinion of said attorney or substitute, able to be done in such matter as the undersigned might or could do if personally present, hereby ratifying and confirming all that said attorney or such substitute shall lawfully do or cause to be done by virtue hereof. In witness whereof, each of the undersigned has duly executed this Power of Attorney.
/s/ Frank G. Bisceglia June 28, 2001 -------------------------------------- Frank G. Bisceglia /s/ James R. Blair June 28, 2001 -------------------------------------- James R. Blair /s/ Richard L. Conniff June 28, 2001 -------------------------------------- Richard L. Conniff /s/ William J. Del Biaggio, Jr. June 28, 2001 -------------------------------------- William J. Del Biaggio, Jr. /s/ Anneke Dury June 28, 2001 -------------------------------------- Anneke Dury /s/ Kurt G. Hammerstrom June 28, 2001 -------------------------------------- Kurt G. Hammerstrom /s/ John W. Larsen June 28, 2001 -------------------------------------- John W. Larsen /s/ Roy E. Lave June 28, 2001 -------------------------------------- Roy E. Lave /s/ Louis O. Normandin June 28, 2001 -------------------------------------- Louis O. Normandin /s/ Jack L. Peckham June 28, 2001 -------------------------------------- Jack L. Peckham /s/ Robert W. Peters June 28, 2001 -------------------------------------- Robert W. Peters /s/ Humphrey P. Polanen June 28, 2001 -------------------------------------- Humphrey P. Polanen
7 8
/s/ Brad L. Smith June 28, 2001 -------------------------------------- Brad L. Smith /s/ Howard Weiland June 28, 2001 -------------------------------------- Howard Weiland
8 9 EXHIBITS LIST
Sequentially Exhibit Description Numbered Page 4 Amendment to Heritage Commerce Corp Amended and Restated 1994 Tandem Stock Option Plan 5 Opinion of Counsel as to the legality of securities being registered 23.1 Consent of Counsel (included in Exhibit 5) 23.2 Consent of Deloitte & Touche LLP, Independent Auditors 23.3 Consent of Arthur Andersen LLP, Independent Auditors 23.4 Consent of Pricewaterhouse Coopers LLP, Independent Auditors 24.1 Power of Attorney (included in signature page of this registration statement)
EX-4 2 f74339orex4.txt EXHIBIT 4 1 EXHIBIT 4.1 AMENDMENT TO HERITAGE COMMERCE CORP AMENDED AND RESTATED 1994 TANDEM STOCK OPTION PLAN Section 5 of the Heritage Commerce Corp Amended and Restated 1994 Tandem Stock Option Plan (the "Plan") is hereby amended in its entirety as follows: 5. STOCK SUBJECT TO THE PLAN Subject to adjustments as provided in Section 12, hereof, the stock to be offered under the Plan shall be shares of the Company's authorized but unissued common stock (hereinafter called "stock") and the aggregate amount of stock to be delivered upon exercise of all options granted under this Plan shall not exceed 2,761,260 shares. If any option shall be canceled, surrendered or expire for any reason without having been exercised in full, the underlying shares subject thereto shall again be available for purposes of this Plan. Except as set forth in this amendment, the Plan remains in full force and effect. HERITAGE COMMERCE CORP By /s/ Richard L. Conniff ----------------------- By /s/ Rebecca Levey ----------------------- EX-5 3 f74339orex5.txt EXHIBIT 5 1 EXHIBIT 5.1 June 25, 2001 (415) 393-2000 Heritage Commerce Corp 150 Almaden Boulevard San Jose, CA 95113 REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have acted as counsel for Heritage Commerce Corp, a California corporation, (the "Company"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the registration of 500,000 shares of the Company's common stock to be issued under the Heritage Commerce Corp 1994 Tandem Stock Option Plan. We are of the opinion that the securities to be issued by the Company pursuant to the Registration Statement have been duly authorized and, when sold pursuant to the terms described in the Registration Statement, will be duly and validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, McCUTCHEN, DOYLE, BROWN & ENERSEN, LLP By /s/ James M. Rockett -------------------- A Member of the Firm EX-23.2 4 f74339orex23-2.txt EXHIBIT 23.2 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this registration statement on Form S-8 of Heritage Commerce Corp of our report dated January 25, 2001, appearing in the Annual Report on Form 10-K of Heritage Commerce Corp for the year ended December 31, 2000 (as amended by Form 10-K/A filed on April 6, 2001). /s/ Deloitte & Touche LLP San Jose, California July 24, 2001 EX-23.3 5 f74339orex23-3.txt EXHIBIT 23.3 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated January 21, 2000 on the consolidated financial statements of Western Holdings Bancorp and Subsidiary as of December 31, 1999 and for the year then ended included in Heritage Commerce Corp's 2000 Form 10-K and to all references to our firm included in this registration statement. /s/ Arthur Andersen LLP San Francisco, California July 23, 2001 EX-23.4 6 f74339orex23-4.txt EXHIBIT 23.4 1 EXHIBIT 23.4 CONSENT OF INDEPENDENT AUDITORS CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 22, 1999 relating to the financial statements of Western Holdings Bancorp, which appears in Heritage Commerce Corp's Annual Report on Form 10-K for the year ended December 31, 2000 (as amended by Form 10-K/A filed on April 6, 2001). /s/ Pricewaterhouse Coopers LLP San Francisco, CA July 24, 2001 -----END PRIVACY-ENHANCED MESSAGE-----