0000898430-95-001758.txt : 19950914 0000898430-95-001758.hdr.sgml : 19950914 ACCESSION NUMBER: 0000898430-95-001758 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950908 EFFECTIVENESS DATE: 19950927 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CUPERTINO NATIONAL BANCORP CENTRAL INDEX KEY: 0000757790 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 330060898 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-62429 FILM NUMBER: 95571827 BUSINESS ADDRESS: STREET 1: 20230 STEVENS CREEK BLVD CITY: CUPERTINO STATE: CA ZIP: 95014 BUSINESS PHONE: 4089961144 S-8 1 FROM S-8 REGISTRATION ST Registration No.____________________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- CUPERTINO NATIONAL BANCORP ---------------------------------------- (Exact name of registrant as specified in its charter) California 33-0060898 --------------------------------- ------------------------------------ (State or other jurisdiction (I.R.S. employer identification no.) of incorporation or organization) 20230 Stevens Creek Boulevard Cupertino, CA 95014 ----------------------------------------------------- (Address of principal executive offices) (Zip code) CUPERTINO NATIONAL BANCORP 401(K) PROFIT SHARING PLAN CUPERTINO NATIONAL BANCORP EMPLOYEE STOCK PURCHASE PLAN CUPERTINO NATIONAL BANCORP 1995 STOCK OPTION PLAN ------------------------------------------------------------ (Full title of the plan) C. Donald Allen Chief Executive Officer Cupertino National Bancorp 20230 Stevens Creek Boulevard Cupertino, CA 95014 ----------------------------------------------- (Name and address of agent for service) Telephone number, including area code, of agent for service: 408/996-1144 This registration statement, including all exhibits and attachments, contains 16 pages. The exhibit index may be found on page 10 of the consecutively numbered pages of the registration statement. This registration statement shall hereafter become effective in accordance with Rule 462 promulgated under the Securities Act of 1933, as amended. 1 -------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE --------------------------------------------------------------------------------
Proposed Proposed Title of maximum maximum securities Amount offering aggregate Amount of to be to be price per offering registration registered registered share/1/ price fee -------------------------------------------------------------------------------- 1995 Stock Option Plan ---------------------- Common Stock 20,818 $9.75 $202,975.50 $69.99 79,182 $8.94 $707,887.08 $244.10 401(k) Profit Sharing Plan -------------------------- Common Stock 300,000 $9.75 $2,925,000.00 $1,008.63 Employee Stock Purchase Plan ---------------------------- Common Stock 25,000 $8.29 $207,250.00 $71.47 TOTAL 425,000 $4,043,112.58 $1,394.19
In addition, pursuant to Rule 416(c) under the Securities Act of 1999, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plans described herein. ________________________ /1/ Estimated pursuant to Rule 457 solely for purposes of calculating the registration fee. As to shares subject to outstanding but unexercised options under the Cupertino National Bancorp 1995 Stock Option Plan, the price is computed on the basis of the exercise price. As to shares under the Cupertino National Bancorp Employee Stock Purchase Plan, this plan establishes a purchase price equal to 85% of the fair market value of the Company's Common Stock and, therefore, the price for purchase rights under this plan is based upon 85% of the average of the high and low prices of the Common Stock on September 1 1995, as reported on the National Association of Securities Dealers Automated Quotations System. As to the remaining shares the price is based upon the average of the high and low prices of the Common Stock on September 1, 1995, as reported on the National Association of Securities Dealers Automated Quotations System. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT -------------------------------------------------- Item 3. Incorporation of Documents by Reference ------ --------------------------------------- Cupertino National Bancorp (the "Company") hereby incorporates by reference in this registration statement the following documents: (a) The Company's latest annual report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), containing audited financial statements for the Company's latest fiscal year ended December 31, 1994 as filed with the Commission on March 31, 1995. (b) 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. (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. 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 ------ -------------------------------------- Inapplicable. 3 Item 6. Indemnification of Directors and Officers ------ ----------------------------------------- The Company's Articles of Incorporation provide that the liability of the directors for monetary damages shall be eliminated to the fullest extent permissible under California law. Pursuant to California law, the Company's directors shall not be liable for monetary damages for breach of the directors' fiduciary duty of care to the Company and its shareholders. However, this provision does not eliminate the duty of care, and in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under California law. In addition, each director will continue to be subject to liability for (i) acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) acts or omissions that a director believes to be contrary to the best interests of the Company or its shareholders or that involve the absence of good faith on the part of the director, (iii) any transaction from which a director derived an improper personal benefit, (iv) acts or omissions that show a reckless disregard for the director's duty to the Company or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the Company or its shareholders, (v) acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director's duty to the Company or its shareholders, (vi) any transaction that constitutes an illegal distribution or dividend under California law, and (vii) any transaction involving an unlawful conflict of interest between the director and the Company under California law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. Item 7. Exemption From Registration Claimed ------ ----------------------------------- Inapplicable. Item 8. Exhibits ------ -------- See Exhibit Index. 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: 4 (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)(l)(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. (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) Filing 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 or 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 5 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. SIGNATURE --------- Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cupertino, State of California, on August 17, 1995. CUPERTINO NATIONAL BANCORP /s/ C. Donald Allen By:___________________________________________ C. Donald Allen, Chief Executive Officer 6 POWER OF ATTORNEY ----------------- The officers and directors of Cupertino National Bancorp whose signatures appear below, hereby constitute and appoint C. Donald Allen and Steven C. Smith, and each of them, their true and lawful attorneys and agents, with full power of substitution, each with power to act alone, to sign and execute on behalf of the undersigned any amendment or amendments to this registration statement on Form S -8, and each of the undersigned does hereby ratify and confirm all that each of said attorney and agent, or their, her or his substitutes, shall do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on August 17, 1995. Signature Title -------------------------------------------------------------------------------- /s/ C. Donald Allen -------------------------------- C. Donald Allen Chief Executive Officer, President and Director (Principal Executive Officer) /s/ Steven C. Smith -------------------------------- Steven C. Smith Executive Vice President, Chief Financial Officer and Chief Operating Officer (Principal Financial and Accounting Officer) /s/ David K. Chui -------------------------------- David K. Chui Director -------------------------------- Carl E. Cookson Director /s/ Jerry R. Crowley -------------------------------- Jerry R. Crowley Director /s/ Janet M. DeCarli -------------------------------- Janet M. DeCarli Director 7 /s/ John M. Gatto -------------------------------- John M. Gatto Director /s/ William H. Guengerich -------------------------------- William H. Guengerich Director /s/ James E. Jackson -------------------------------- James E. Jackson Director /s/ Rex D. Lindsay -------------------------------- Rex D. Lindsay Director and Vice Chairman of the Board /s/ Glen McLaughlin -------------------------------- Glen McLaughlin Director and Chairman of the Board /s/ Norman Meltzer -------------------------------- Norman Meltzer Director /s/ Dick J. Randall -------------------------------- Dick J. Randall Director /s/ Dennis S. Whittaker -------------------------------- Dennis S. Whittaker Director 8 SIGNATURE --------- Pursuant to the requirements of the Securities Act of 1933, as amended, the trustees (or other persons who administer the employee benefit plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cupertino, State of California on August 18, 1995. Cupertino National Bank and Trust, Trustee for the Cupertino Bancorp 401(k) Profit Sharing Plan /s/ Debora Reed By:_____________________________________ Debora Reed, Vice President and Trust Officer 9 EXHIBIT INDEX -------------
Sequentially Numbered Page ------------- 4.1 Amended Articles of Incorporation of the Company is incorporated by -- reference to Exhibit 4.1 to the Registration Statement on Form S-8 filed with the Securities and Exchange Commission on July 25, 1990 (No. 33-36057) 4.2 Bylaws of the Company is incorporated by reference to Exhibit 4.2 to -- the Registration Statement on Form S-8 filed with the Securities and Exchange Commission on July 25, 1990 (No. 33-36057) 4.3 A copy of the Internal Revenue Service determination letter dated May 11 5, 1995 that the Cupertino National Bancorp 401(k) Profit Sharing Plan, Plan Number 001, is qualified under Section 401 of the Internal Revenue Code 5 Opinion re legality 13 23.1 Consent of Counsel (included in Exhibit 5) -- 23.2 Consent of Independent Accountants 16 24 Power of Attorney (included in signature pages to this registration -- statement)
10 EX-4.3 2 I.R.S. DETERMINATION LTR EXHIBIT 4.3 ----------- INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR 2 CUPANIA CIRCLE MONTEREY PARK, CA 91755 Employer Identification Number: Date: May 5, 1995 33-0060898 File Folder Number: 770022116 CUPERTINO NATIONAL BANCORP Person to Contact: 20230 STEVENS CREEK BLVD DONNA COLLINS CUPERTINO, CA 95014 Contact Telephone Number: (213) 725-0164 Plan Name: CUPERTINO NATIONAL BANCORP 401(K) PROFIT SHARING PLAN Plan Number: 001 Dear Applicant: We have made a favorable determination on your plan, identified above, based on the information supplied. Please keep this letter in your permanent records. Continued qualification of the plan under its present form will depend on its effect in operation (See section 1.401-1 (b) (3) of the Income Tax Regulations.) We will review the status of the plan in operation periodically. The enclosed document explains the significance of this favorable determination letter, points out some features that may affect the qualified status of your employee retirement plan, and provides information on the reporting requirements for your plan. It also describes some events that automatically nullify it. It is very important that you read the publication. This letter relates only to the status of your plan under the Internal Revenue Code. It is not a determination regarding the effect of other federal or local statutes. This determination letter is applicable for the amendment(s) adopted on 122294. This determination letter is applicable for the plan adopted on 121787. This plan has been mandatorily disaggregated, permissively aggregated, or restructured to satisfy the nondiscrimination requirements. This plan satisfies the nondiscrimination in amount requirement of section 1.401 (a) (4) -1 (b) (2) of the regulations on the basis of a design-based safe harbor described in the regulations. This letter is issued under Rev. Proc. 93-39 and considers the amendments required by the Tax Reform Act of 1986 except as otherwise specified in this letter. 11 This plan satisfies the nondiscriminatory current availability requirement of section 1.401 (a) (4) -4 (b) of the regulations with respect to those benefits, rights, and features that are currently available to all employees in the plan's coverage group. For this purpose, the plan's coverage group consists of those employees treated as currently benefiting for purposes of demonstrating that the plan satisfies the minimum coverage requirements of section 410 (b) of the Code. This letter may not be relied upon with respect to whether the plan satisfies the qualification requirements as amended by the Uruguay Round Agreements Act, Pub. L. 103-465. The information on the enclosed addendum is an integral part of this determination. Please be sure to read and keep it with this letter. We have sent a copy of this letter to your representative as indicated in the power of attorney. If you have questions concerning this matter, please contract the person whose name and telephone number are shown above. Sincerely yours, /s/ Richard R. Orosco District Direction Enclosures: Publication 794 Reporting & Disclosure Guide for Employee Benefit Plans Addendum 12 EX-5 3 OPINION RE LEGALITY EXHIBIT 5 --------- OPINION RE LEGALITY 13 [LOGO OF GRAY CARY WARE FREIDENRICH APPEARS HERE] ATTORNEYS AT LAW 400 HAMILTON AVENUE PALO ALTO, CA 94301-1825 TEL (415) 328-6561 FAX (415) 327-3699 OUR FILE NO. 1030733-903101 September 6, 1995 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 RE: CUPERTINO NATIONAL BANCORP REGISTRATION STATEMENT ON FORM S-8 REGISTERING SHARES ISSUABLE UNDER THE CUPERTINO NATIONAL BANCORP 401(K) PROFIT SHARING PLAN, THE CUPERTINO NATIONAL BANCORP EMPLOYEE STOCK PURCHASE PLAN AND THE CUPERTINO NATIONAL BANCORP 1995 STOCK OPTION PLAN Ladies and Gentlemen: As legal counsel for Cupertino National Bancorp, a California corporation (the "Company"), we are rendering this opinion in connection with the registration under the Securities Act of 1933, as amended, of up to 425,000 shares of the Common Stock, without par value, of the Company which may be issued pursuant to the exercise of options and purchase rights granted under the Cupertino National Bancorp 401(k) Profit Sharing Plan, the Cupertino National Bancorp Employee Stock Purchase Plan and the Cupertino National Bancorp 1995 Stock Option Plan (the "Plans"). We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. We are admitted to practice only in the State of California and we express no opinion concerning any law other than the law of the State of California, and the federal law of the United States. 14 Securities and Exchange Commission Page 2 Based on such examination, we are of the opinion that the 425,000 shares of Common Stock which may be issued upon exercise of options and purchase rights granted under the Plans are duly authorized shares of the Company's Common Stock, and, when issued against payment of the purchase price therefor in accordance with the provisions of the Plans, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears in said Registration Statement. Respectfully submitted, /s/ Gray Cary Ware & Freidenrich GRAY CARY WARE & FREIDENRICH A Professional Corporation 15 EX-23.2 4 CONSENT OF ACCOUNTANTS COOPERS & LYBRAND L.L.P. 333 Market Street San Francisco, CA 95105 telephone: (415) 957-3000 facsimile: (415) 957-3394 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTS We consent to the incorporation by reference in the registration statement of Cupertino National Bancorp and Subsidiary on Forms S-8 (re: the 401 (k) Profit Sharing Plan; Employee Stock Purchase Plan and 1995 Stock Option Plan) of our report dated January 30, 1995, on our audit of the consolidated financial statements of Cupertino National Bancorp and Subsidiary as of December 31, 1994 and for the year ended December 31, 1994 which report is included in Cupertino National Bancorp and Subsidiary's 1994 Annual Report on Form 10-K. Coopers & Lybrand L.L.P. San Francisco, California September 7, 1995