-----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, TZGUNSY44f2e0sYSsc6tkX/szE2tCXhoe8shpd9XvTP8cPOJBtC8y/H5nf3aPPH0 VRFUFnLmHOdq9wwhmk0dvQ== 0000950147-03-000783.txt : 20030702 0000950147-03-000783.hdr.sgml : 20030702 20030702132627 ACCESSION NUMBER: 0000950147-03-000783 CONFORMED SUBMISSION TYPE: 424B3 PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20030702 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CAPITOL BANCORP LTD CENTRAL INDEX KEY: 0000840264 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 382761672 STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 424B3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-105679 FILM NUMBER: 03770850 BUSINESS ADDRESS: STREET 1: ONE BUSINESS & TRADE CNTR STREET 2: 200 WASHINGTON SQ N CITY: LANSING STATE: MI ZIP: 48933 BUSINESS PHONE: 5174876555 MAIL ADDRESS: STREET 1: ONE BUSINESS & TRADE CENTER STREET 2: 200 WASHINGTON SQUARE NORTH CITY: LANSING STATE: MI ZIP: 48933 424B3 1 e-10153.txt 424B3 FOR CAPITOL BANCORP - DESERT COMMUNITY BANK As filed pursuant to Rule 424(b)(3) Under the Securities Act of 1933 Registration No. 333-105679 PROXY STATEMENT/PROSPECTUS PROPOSED PLAN OF SHARE EXCHANGE The Board of Directors of Desert Community Bank has approved a Plan of Share Exchange that contemplates the exchange of the shares of Desert common stock held by all shareholders other than Capitol Bancorp Limited. Capitol currently holds 51% of Desert's common stock. As a result of the exchange, Desert will become a wholly-owned subsidiary of Capitol. If the exchange is approved, each share of Desert common stock will be converted into the right to receive Capitol common stock according to a fixed exchange ratio. The exchange ratio is calculated by dividing $13.765183, the per share value of Desert common stock, by $20.916, the average closing prices of Capitol's common stock for the month ended March 31, 2003. At March 31, 2003, the book value per share of Desert common stock was $10.51, compared to share value of Desert of $13.765183 based on the proposed exchange. If the share exchange is approved, each shareholder of Desert would receive in the exchange ..658117 shares of Capitol common stock for each share of Desert common stock. The share value of Desert has been determined and offered by Capitol solely based on its arbitrary valuation for purposes of this proposed exchange. Capitol has made similar share exchanges with minority shareholders of some of its banks previously. It also has other similar share exchange proposals pending currently. In these share exchange proposals, including the proposed Desert share exchange, Capitol's proposal is based on some premium over the book value of the bank's common stock. However, the share values for the bank's common stock always are different and, as stated previously, Capitol's offer is based on its arbitrary valuation solely for purposes of the proposed exchange(s). Capitol estimates that Capitol will issue approximately 161,239 shares of Capitol common stock to Desert shareholders in the exchange, but could be more, if any of Desert's stock options are exercised prior to the exchange. Those shares will represent less than 5% of the outstanding Capitol common stock after the exchange. Capitol's common stock currently trades on the New York Stock Exchange under the symbol "CBC". Desert's Board of Directors has scheduled a meeting of Desert shareholders to vote on the Plan of Share Exchange. The attached proxy statement/prospectus includes detailed information about the time, date and place of the shareholders' meeting. This document gives you detailed information about the meeting and the proposed exchange. You are encouraged to read this document carefully. IN PARTICULAR, YOU SHOULD READ THE "RISK FACTORS" SECTION BEGINNING ON PAGE 13 FOR A DESCRIPTION OF VARIOUS RISKS YOU SHOULD CONSIDER IN EVALUATING THE EXCHANGE OF YOUR DESERT COMMON STOCK FOR CAPITOL'S COMMON STOCK. - -------------------------------------------------------------------------------- NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THE SECURITIES TO BE ISSUED UNDER THIS PROXY STATEMENT/PROSPECTUS OR DETERMINED IF THIS PROXY STATEMENT/PROSPECTUS IS ACCURATE OR ADEQUATE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. - -------------------------------------------------------------------------------- This proxy statement/prospectus is dated June 26, 2003, and is first being mailed to shareholders of Desert on or about July 2, 2003. 1 [This page intentionally left blank] 2 TABLE OF CONTENTS ANSWERS TO FREQUENTLY ASKED QUESTIONS ..................................... 5 SUMMARY ................................................................... 8 Reasons for the Exchange ................................................ 8 The Shareholders' Meeting ............................................... 8 Recommendation to Shareholders .......................................... 8 Votes Required .......................................................... 9 Record Date; Voting Power ............................................... 9 What Shareholders will Receive in the Exchange .......................... 9 Accounting Treatment .................................................... 9 Tax Consequences of the Exchange to Desert Shareholders ................. 10 Dissenters' Rights ...................................................... 10 Opinion of Financial Advisor ............................................ 10 The Plan of Share Exchange .............................................. 10 Termination of the Exchange ............................................. 10 Your Rights as a Shareholder Will Change ................................ 10 SELECTED CONSOLIDATED FINANCIAL DATA ...................................... 11 RISK FACTORS .............................................................. 13 RECENT DEVELOPMENTS ....................................................... 18 COMPARATIVE HISTORICAL, PRO FORMA AND PRO FORMA EQUIVALENT PER SHARE INFORMATION ................................................. 19 CAPITALIZATION ............................................................ 20 DIVIDENDS AND MARKET FOR COMMON STOCK ..................................... 22 CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS ................. 23 INFORMATION ABOUT CAPITOL ................................................. 24 INFORMATION ABOUT DESERT .................................................. 24 THE ELECTION OF DIRECTORS ................................................. 25 PRO FORMA CONSOLIDATED FINANCIAL INFORMATION .............................. 27 THE EXCHANGE .............................................................. 30 General ................................................................. 30 Background of the Exchange .............................................. 30 Desert's Reasons for the Exchange ....................................... 31 Capitol's Reasons for the Exchange ...................................... 31 Terms of Exchange ....................................................... 31 Desert Board Recommendation ............................................. 31 Accounting Treatment .................................................... 32 Pro Forma Data .......................................................... 32 Material Federal Income Tax Consequences ................................ 32 Regulatory Matters ...................................................... 34 Dissenters' Rights ...................................................... 34 Federal Securities Laws Consequences; Stock Transfer Restrictions ....... 35 3 TABLE OF CONTENTS - Continued OPINION OF FINANCIAL ADVISOR .............................................. 36 THE CLOSING ............................................................... 39 Effective Time .......................................................... 39 Shares Held by Capitol .................................................. 39 Procedures for Surrender of Certificates; Fractional Shares ............. 39 Fees and Expenses ....................................................... 40 Stock Market Listing .................................................... 40 Amendment and Termination ............................................... 40 THE SHAREHOLDERS' MEETING ................................................. 41 Date, Time and Place .................................................... 41 Matters to be Considered at the Shareholders' Meeting ................... 41 Record Date; Stock Entitled to Vote; Quorum ............................. 41 Votes Required .......................................................... 41 Share Ownership of Management ........................................... 41 Voting of Proxies ....................................................... 42 General Information ..................................................... 42 Solicitation of Proxies; Expenses ....................................... 42 COMPARISON OF SHAREHOLDER RIGHTS .......................................... 43 DESCRIPTION OF CAPITAL STOCK OF CAPITOL ................................... 44 Rights of Common Stock .................................................. 44 Shares Available for Issuance ........................................... 44 Capitol's Preferred Securities .......................................... 45 Anti-Takeover Provisions ................................................ 45 WHERE YOU CAN FIND MORE INFORMATION ....................................... 47 LEGAL MATTERS ............................................................. 48 EXPERTS ................................................................... 48 LIST OF ANNEXES ANNEX A Plan of Share Exchange........................................... A-1 ANNEX B Opinion of Financial Advisor..................................... B-1 ANNEX C Tax Opinion of Miller, Canfield, Paddock and Stone, PLC.......... C-1 ANNEX D Financial Information Regarding Desert Community Bank............ D-1 ANNEX E Financial and Other Information Regarding Capitol Bancorp Ltd.... E-1 ANNEX F Excerpts of Nevada Revised Statutes Regarding Dissenters' Rights. F-1 4 ANSWERS TO FREQUENTLY ASKED QUESTIONS Q: Why am I receiving these materials? A: Desert's Board of Directors has approved the exchange of the 49% of Desert's common stock not owned by Capitol for shares of common stock of Capitol. The exchange requires the approval of Desert's shareholders. Desert is sending you these materials to help you decide whether to approve the exchange. Q: What will I receive in the exchange? A: You will receive shares of Capitol common stock, which are publicly traded currently on the New York Stock Exchange under the symbol "CBC". If the exchange is approved, you would receive .658117 shares of Capitol common stock for each share of Desert common stock you own. Any fractional shares will be paid in cash. Q: What do I need to do now? A: After you have carefully read this document, indicate on the enclosed proxy card how you want to vote. Sign and mail the proxy card in the enclosed prepaid return envelope as soon as possible. You should indicate your vote now even if you expect to attend the shareholders' meeting and vote in person. Indicating your vote now will not prevent you from later canceling or revoking your proxy right up to the day of the shareholders' meeting and will ensure that your shares are voted if you later find you cannot attend the shareholders' meeting. Q: What do I do if I want to change my vote? A: You may change your vote: . by sending a written notice to the President of Desert prior to the shareholders' meeting stating that you would like to revoke your proxy; . by signing a later-dated proxy card and returning it by mail prior to the shareholders' meeting, no later than July 15, 2003; or . by attending the shareholders' meeting and voting in person. Q: What vote is required to approve the exchange? A: In order to complete the exchange, holders of a majority of the shares of Desert common stock (other than Capitol) must approve the Plan of Share Exchange. If you do not vote your Desert shares, the effect will be a vote against the Plan of Share Exchange. Q: Should I send in my stock certificates at this time? A: No. After the exchange is approved, Capitol or Capitol's stock transfer agent will send Desert shareholders written instructions for exchanging their stock certificates. 5 Q: When do you expect to complete the exchange? A: As quickly as possible after July 25, 2003. Approval by Desert's shareholders at the shareholders' meeting must be obtained first. It is anticipated the exchange will be completed by August 31, 2003. Q: Where can I find more information about Capitol? A: This document incorporates important business and financial information about Capitol from documents filed with the SEC that have not been delivered or included with this document. This information is available to you without charge upon written or oral request. You can obtain the documents incorporated by reference in this proxy statement/prospectus through the Securities and Exchange Commission website at WWW.SEC.GOV or by requesting them in writing or by telephone from Capitol at the following address: Capitol Bancorp Limited Capitol Bancorp Center 200 Washington Square North, Fourth Floor Lansing, Michigan 48933 Attention: General Counsel Telephone Number: (517) 487-6555 IN ORDER TO RECEIVE TIMELY DELIVERY OF THE DOCUMENTS IN ADVANCE OF THE SHAREHOLDERS' MEETING, YOU SHOULD MAKE YOUR REQUEST NO LATER THAN JULY 15, 2003. For more information on the matters incorporated by reference in this document, see "Where You Can Find More Information". 6 WHO CAN ANSWER YOUR QUESTIONS? If you have additional questions, you should contact: Desert Community Bank 3740 South Pecos-McLeod Las Vegas, Nevada 89121 (702) 938-0500 Attention: James W. Howard President or Capitol Bancorp Limited Capitol Bancorp Center 200 Washington Square North, Fourth Floor Lansing, Michigan 48933 (517) 487-6555 Attention: Brian K. English General Counsel If you would like additional copies of this proxy statement/prospectus you should contact: Capitol Bancorp Ltd. at the above address and phone number. 7 SUMMARY THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS PROXY STATEMENT/PROSPECTUS. IT DOES NOT CONTAIN ALL OF THE INFORMATION THAT MAY BE IMPORTANT TO YOU. TO UNDERSTAND THE PROPOSED EXCHANGE FULLY AND THE CONSEQUENCES TO YOU, YOU SHOULD READ CAREFULLY THE ENTIRE PROXY STATEMENT/PROSPECTUS AND THE DOCUMENTS REFERRED TO IN THIS DOCUMENT. SEE "WHERE YOU CAN FIND MORE INFORMATION". Capitol Bancorp Limited is a bank holding company with headquarters located at the Capitol Bancorp Center, 200 Washington Square North, Fourth Floor, Lansing, Michigan 48933. Capitol's telephone number is (517) 487-6555. Additionally, Capitol has its Western Region headquarters located at 2777 East Camelback Road, Suite 375, Phoenix, Arizona 85016. Capitol's telephone number at its Western Region headquarters is (602) 955-6100. Capitol is a uniquely structured affiliation of community banks. It currently has 29 wholly or majority-owned bank subsidiaries, including Desert Community Bank. Each bank is viewed by management as being a separate business from the perspective of monitoring performance and allocation of financial resources. Capitol uses a unique strategy of bank ownership and development through a tiered structure. Capitol's operating strategy is to provide transactional, processing and administrative support and mentoring to aid in the effective growth and development of its banks. It provides access to support services and management with significant experience in community banking. These administrative and operational support services do not require a direct interface with the bank customer and therefore can be consolidated more efficiently without affecting the bank customer relationship. Subsidiary banks have full decision-making authority in structuring and approving loans and in the delivery and pricing of other banking services. Desert Community Bank is a commercial bank with its headquarters at 3740 South Pecos-McLeod, Las Vegas, Nevada 89121. Desert's telephone number is (702) 938-0500. Desert has been, since it commenced business, an affiliate and controlled subsidiary of Capitol. Desert commenced the business of banking in August 1999. Desert offers a full range of commercial banking services. For periods from its inception through December 31, 2002, Desert was a majority-owned subsidiary of Nevada Community Bancorp Limited. Nevada was previously a 54% owned subsidiary of Capitol Bancorp Limited. In January 2003, Nevada became a wholly-owned subsidiary of Capitol as of the result of a share exchange transaction and was merged into Capitol. REASONS FOR THE EXCHANGE (PAGE 31) It is believed that the exchange will provide you with greater liquidity and flexibility because Capitol's common stock is publicly traded. The exchange will also provide you with greater diversification, since Capitol is active in more than one geographic area and across a broader customer base. THE SHAREHOLDERS' MEETING (PAGE 41) The meeting of Desert shareholders will be held on July 25, 2003 at 11:00 a.m., local time, at Desert Community Bank at 3740 South Pecos-McLeod, Las Vegas, Nevada 89121. At the shareholders' meeting, you will elect Desert's Board of Directors and be asked to approve the Plan of Share Exchange. RECOMMENDATION TO SHAREHOLDERS (PAGE 31) The Desert board believes that the exchange is fair to you and in the best interests of both you and Desert and recommends that you vote FOR approval of the share exchange. 8 VOTES REQUIRED (PAGE 41) Approval of the Plan of Share Exchange requires the favorable vote of a majority of the outstanding shares of Desert common stock excluding the shares held by Capitol. This is more than the vote required by law, but Desert's board has set the vote requirement to be sure the exchange is what you, the shareholders of Desert, want. Capitol holds 51% of the outstanding shares of Desert common stock. Desert's Board of Directors and officers hold 6.07% of the outstanding shares of Desert common stock, or 12.39% of all shares not held by Capitol. The majority of the Board of Directors have agreed to vote their shares FOR approval of the Plan of Share Exchange. RECORD DATE; VOTING POWER (PAGE 41) Desert shareholders may vote at the shareholders' meeting if they owned shares of common stock at the close of business on May 15, 2003. At the close of business on March 31, 2003, 245,000 shares of Desert common stock were outstanding (excluding shares held by Capitol). For each share of Desert common stock that you owned as of the close of business on that date, you will have one vote in the vote of common shareholders at the shareholders' meeting on the proposal to approve the Plan of Share Exchange. WHAT SHAREHOLDERS WILL RECEIVE IN THE EXCHANGE (PAGE 31) In the exchange, each outstanding share of Desert common stock will be automatically converted into the right to receive Capitol common stock, according to an "exchange ratio". The exchange ratio is fixed, and if the exchange is approved, each shareholder of Desert would receive in the exchange ..658117 shares of Capitol common stock for each share of Desert common stock. The exchange ratio is determined by dividing the Desert Share Value by the Capitol Share Value, where: DESERT SHARE VALUE. The value of each share of Desert common stock shall be $13.765183. CAPITOL SHARE VALUE. The share value of each share of Capitol common stock shall be $20.916, the average of the closing prices of Capitol common stock for the month ended March 31, 2003, as reported by the Nasdaq Stock Market, Inc. The Desert Share Value of $13.765183 compares to the book value per Desert share of $10.51 as of March 31, 2003. Based on the fixed exchange ratio, and if the exchange is approved, each shareholder would receive .658117 shares of Capitol common stock for each share of Desert common stock. Each Desert shareholder (except Capitol) will receive shares of Capitol common stock in exchange for his, her or their Desert common stock calculated by multiplying the number of shares of Desert common stock held by the shareholder by the exchange ratio. Any fractional shares will be paid in cash. ACCOUNTING TREATMENT (PAGE 32) Capitol's acquisition of the minority interest of Desert will be accounted for under the purchase method of accounting. After the exchange, all of Desert's results from operations will be included in Capitol's income statement, as opposed to only a portion, which is currently reported. 9 TAX CONSEQUENCES OF THE EXCHANGE TO DESERT SHAREHOLDERS (PAGE 32) Capitol's tax counsel has rendered its opinion that the exchange should be treated as a reorganization for United States federal income tax purposes. Accordingly, Desert shareholders generally will not recognize any gain or loss for United States federal income tax purposes on the exchange of their Desert shares for shares of Capitol's common stock in the exchange, except for any gain or loss recognized in connection with the receipt of cash instead of a fractional share of Capitol's common stock. Tax counsel's opinion is attached as Annex C to this proxy statement/prospectus. Tax counsel's opinion is subject to certain assumptions which may limit its application in particular instances. Tax matters are very complicated, and the tax consequences of the exchange to each Desert shareholder will depend on the facts of that shareholder's situation. You are urged to consult your tax advisor for a full understanding of the tax consequences of the exchange to you. DISSENTERS' RIGHTS (PAGE 34) Under Nevada law, shareholders of Desert are entitled to dissent from and obtain fair value for their shares in connection with the Plan of Share Exchange. OPINION OF FINANCIAL ADVISOR (PAGE 36) Desert retained JMP Financial, Inc. as its financial advisor and agent in connection with the exchange to render a financial fairness opinion to the Desert shareholders. In deciding to approve the exchange, the Desert board considered this opinion, which stated that as of its date and subject to the considerations described in it, the consideration to be received in the exchange by holders of Desert common stock is fair from a financial point of view. The opinion is attached as Annex B to this proxy statement/prospectus. THE PLAN OF SHARE EXCHANGE (PAGE 30) The Plan of Share Exchange is attached as Annex A to this proxy statement/prospectus. You are encouraged to read the Plan of Share Exchange because it is the legal document that governs the exchange. TERMINATION OF THE EXCHANGE (PAGE 40) Desert and Capitol can jointly agree to terminate the plan of exchange at any time without completing the exchange. Desert can terminate the exchange if a majority of Desert's shareholders (other than Capitol) fail to approve the exchange at the shareholders' meeting; or a governmental authority prohibits the exchange. YOUR RIGHTS AS A SHAREHOLDER WILL CHANGE (PAGE 43) Your rights as a Desert shareholder are determined by Nevada's banking law and by Desert's articles of incorporation and by-laws. When the exchange is completed, your rights as a Capitol stockholder will be determined by Michigan law relating to business corporations (not the banking law) and by Capitol's articles of incorporation and by-laws. See "Comparison of Shareholders Rights". 10 SELECTED CONSOLIDATED FINANCIAL DATA The consolidated financial data below summarizes historical consolidated financial information for the periods indicated and should be read in conjunction with the financial statements and other information included in Capitol's Annual Report on Form 10-K for the year ended December 31, 2002, which is incorporated herein by reference. The consolidated financial data below for the interim periods indicated has been derived from, and should be read in conjunction with, Capitol's Quarterly Report on Form 10-Q for the period ended March 31, 2003, which is incorporated herein by reference. See "Where You Can Find More Information". The interim results include all adjustments of a normal recurring nature that are, in the opinion of management, considered necessary for a fair presentation. Interim results for the three months ended March 31, 2003 are not necessarily indicative of results which may be expected in future periods, including the year ending December 31, 2003. BECAUSE OF THE NUMBER OF BANKS ADDED THROUGHOUT THE PERIOD OF CAPITOL'S EXISTENCE, AND BECAUSE OF THE DIFFERING OWNERSHIP PERCENTAGE OF BANKS INCLUDED IN THE CONSOLIDATED AMOUNTS, HISTORICAL OPERATING RESULTS ARE OF LIMITED RELEVANCE IN COMPARING FINANCIAL PERFORMANCE AND PREDICTING CAPITOL'S FUTURE OPERATING RESULTS. Capitol's consolidated balance sheets as of December 31, 2002 and 2001, and the related consolidated statements of income, changes in stockholders' equity and cash flows for the years ended December 31, 2002, 2001 and 2000 are incorporated herein by reference. The selected financial data provided below as of March 31, 2003 and for the three months ended March 31, 2003 and 2002 have been derived from Capitol's consolidated financial statements which are incorporated herein by reference. Selected balance sheet data as of March 31, 2002 and December 31, 2000, 1999 and 1998 and results of operations data for the years ended December 31, 1999 and 1998 were derived from consolidated financial statements which are not incorporated in this proxy statement/prospectus. Under current accounting rules, entities which are more than 50% owned by another are consolidated or combined for financial reporting purposes. This means that all of the assets and liabilities of subsidiaries (including Desert) are included in Capitol's consolidated balance sheet. Capitol's consolidated net income, however, only includes its subsidiaries' (including Desert) net income or net loss to the extent of its ownership percentage. This means that when a newly formed bank incurs early start-up losses, Capitol will only reflect that loss based on its ownership percentage. Conversely, when banks generate income, Capitol will only reflect that income based on its ownership percentage.
CAPITOL BANCORP LIMITED -------------------------------------------------------------------------------------------- AS OF AND FOR THE THREE MONTHS ENDED AS OF AND FOR THE MARCH 31 YEARS ENDED DECEMBER 31 ----------------------- ----------------------------------------------------------------- 2003 2002 2002 2001 2000 1999 1998 ---------- ---------- ---------- ---------- ---------- ---------- ---------- (DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA) SELECTED RESULTS OF OPERATIONS DATA: Interest income $ 39,986 $ 37,255 $ 156,454 $ 153,797 $ 132,311 $ 93,602 $ 69,668 Interest expense 12,999 14,432 55,860 73,292 65,912 46,237 36,670 Net interest income 26,987 22,823 100,594 80,505 66,399 47,365 32,998 Provision for loan losses 1,890 2,090 12,676 8,167 7,216 4,710 3,523 Net interest income after provision for loan losses 25,097 20,733 87,918 72,338 59,183 42,655 29,475 Noninterest income 4,529 2,798 14,982 9,585 6,137 4,714 3,558 Noninterest expense 21,156 18,793 77,151 64,136 52,846 40,257 26,325 Income before income tax expense, minority interest and cumulative effect of change in accounting principle 8,470 4,738 25,749 17,787 12,474 7,112 6,708 Income tax expense 2,944 1,543 8,701 5,824 4,289 3,213 2,584 Income before minority interest and cumulative effect of change in accounting principle 5,526 3,195 17,048 11,963 8,185 3,899 4,124 Minority interest in net losses (income) of consolidated subsidiaries (213) (151) (395) (1,245) (150) 1,707 504 Income before cumulative effect of change in accounting principle 5,313 3,044 16,653 10,718 8,035 5,606 4,628 Cumulative effect of change in accounting principle (1) (197) Net income 5,313 3,044 16,653 10,718 8,035 5,409 4,628
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CAPITOL BANCORP LIMITED -------------------------------------------------------------------------------------------- AS OF AND FOR THE THREE MONTHS ENDED AS OF AND FOR THE MARCH 31 YEARS ENDED DECEMBER 31 ----------------------- ----------------------------------------------------------------- 2003 2002 2002 2001 2000 1999 1998 ---------- ---------- ---------- ---------- ---------- ---------- ---------- (DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA) PER SHARE DATA: Net income per common share: Before cumulative effect of change in accounting principle (1): Basic $ 0.45 $ 0.39 $ 1.64 $ 1.38 $ 1.14 $ 0.87 $ 0.74 Diluted 0.44 0.38 1.57 1.35 1.13 0.86 0.72 After cumulative effect of change in accounting principle (1): Basic 0.45 0.39 1.64 1.38 1.14 0.84 0.74 Diluted 0.44 0.38 1.57 1.35 1.13 0.83 0.72 Cash dividends declared 0.12 0.10 0.44 0.40 0.36 0.36 0.33 Book value 14.01 11.88 13.72 10.24 9.18 8.08 7.77 Pro forma equivalent book value (2) 14.11 N/A N/A N/A N/A N/A N/A Dividend payout ratio 26.67% 25.64% 26.83% 28.99% 31.58% 42.86% 43.63% Weighted average number of common shares outstanding 11,698 7,901 10,139 7,784 7,065 6,455 6,284 SELECTED BALANCE SHEET DATA: Total assets $2,540,289 $2,174,334 $2,409,288 $2,044,006 $1,630,076 $1,305,987 $1,024,444 Investment securities 40,517 44,144 34,139 43,687 68,926 107,145 86,464 Portfolio loans 2,052,157 1,794,207 1,991,372 1,734,589 1,355,798 1,049,204 724,280 Allowance for loan losses (30,034) (24,744) (28,953) (23,238) (17,449) (12,639) (8,817) Deposits 2,181,440 1,853,343 2,062,072 1,740,385 1,400,899 1,112,793 890,890 Debt obligations 84,348 89,361 93,398 89,911 58,150 47,400 23,600 Minority interests in consolidated subsidiaries 31,808 40,320 28,016 70,673 62,575 54,593 27,576 Trust preferred securities 61,299 48,636 51,583 48,621 24,327 24,291 24,255 Stockholders' equity 164,471 126,364 160,037 80,172 70,404 54,668 49,292 PERFORMANCE RATIOS: (3) Return on average equity 13.09% 14.80% 13.33% 15.22% 13.78% 10.66% 10.19% Return on average assets 0.87% 0.58% 0.75% 0.58% 0.55% 0.47% 0.55% Net interest margin (fully taxable equivalent) 4.76% 4.69% 4.80% 4.60% 4.80% 4.44% 4.15% Efficiency ratio (4) 67.13% 73.35% 66.75% 71.19% 72.85% 77.30% 70.63% ASSET QUALITY: Non-performing loans (5) $ 25,981 $ 22,304 $ 22,890 $ 17,238 $ 6,757 $ 4,124 $ 7,242 Allowance for loan losses to non-performing loans 115.60% 110.94% 126.49% 134.81% 258.24% 306.47% 121.75% Allowance for loan losses to portfolio loans 1.46% 1.38% 1.45% 1.34% 1.29% 1.20% 1.22% Non-performing loans to total portfolio loans 1.27% 1.24% 1.15% 0.99% 0.50% 0.39% 1.00% Net loan losses to average portfolio loans 0.16% 0.13% 0.37% 0.15% 0.20% 0.10% 0.15% CAPITAL RATIOS: Average equity to average assets 6.64% 3.84% 5.59% 3.78% 4.26% 4.46% 5.36% Tier 1 risk-based capital ratio 10.68% 10.74% 10.52% 10.54% 11.10% 10.78% 13.42% Total risk-based capital ratio 12.12% 11.99% 11.77% 11.85% 12.35% 11.62% 14.60% Leverage ratio 6.47% 5.81% 6.64% 3.92% 4.32% 4.35% 4.88%
- ---------- (1) Accounting change relates to new accounting standard which required write-off of previously capitalized start-up costs as of January 1, 1999. (2) Based on the exchange ratio of .658117 shares of Capitol for each share of Desert. Excludes the pro forma effect of other share exchange transactions or proposals of Capitol (see "Recent Developments"). (3) These ratios are annualized for the periods indicated. (4) Efficiency ratio is computed by dividing noninterest expense by the sum of net interest income and noninterest income. (5) Nonperforming loans consist of loans on nonaccrual status and loans more than 90 days delinquent. 12 RISK FACTORS THE SHARES OF COMMON STOCK THAT ARE BEING OFFERED ARE NOT SAVINGS ACCOUNTS OR DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY. INVESTING IN CAPITOL'S COMMON STOCK WILL PROVIDE YOU WITH AN EQUITY OWNERSHIP INTEREST IN CAPITOL. AS A CAPITOL SHAREHOLDER, YOUR INVESTMENT MAY BE IMPACTED BY RISKS INHERENT IN ITS BUSINESS. YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS, AS WELL AS OTHER INFORMATION CONTAINED IN THIS PROSPECTUS, BEFORE DECIDING TO VOTE TO EXCHANGE YOUR DESERT COMMON STOCK FOR CAPITOL'S COMMON STOCK. THIS PROXY STATEMENT/PROSPECTUS ALSO CONTAINS CERTAIN FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES. THESE STATEMENTS RELATE TO CAPITOL'S FUTURE PLANS, OBJECTIVES, EXPECTATIONS AND INTENTIONS. THESE STATEMENTS MAY BE IDENTIFIED BY THE USE OF WORDS SUCH AS "BELIEVES," "EXPECTS," "MAY," "WILL," "SHOULD," "SEEKS," "PRO FORMA," "ANTICIPATES," AND SIMILAR EXPRESSIONS. ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE DISCUSSED IN THESE STATEMENTS. FACTORS THAT COULD CONTRIBUTE TO THESE DIFFERENCES INCLUDE THOSE DISCUSSED BELOW AND ELSEWHERE IN THIS PROSPECTUS. INHERENT CONFLICTS OF INTEREST IN THE PROPOSED SHARE EXCHANGE. Desert is already a majority-owned and controlled subsidiary of Capitol. By virtue of the existing relationship between Desert and Capitol, the proposed share exchange presents inherent conflicts of interest. For example, no other share exchanges are being considered and, if there were any, Capitol would likely vote its Desert shares against any other share exchange proposals. Capitol's proposal to value Desert shares at $13.765183 in the proposed share exchange is based solely on its judgment in making such proposal. Accordingly, the Desert Share Value and related exchange ratio have not been determined absent the inherent conflicts of interest between Capitol and Desert. It is unknown what exchange ratio or Desert Share Value, if any, that might be negotiated between Desert and unaffiliated entities. NEWLY FORMED BANKS ARE LIKELY TO INCUR SIGNIFICANT OPERATING LOSSES THAT COULD NEGATIVELY AFFECT THE AVAILABILITY OF EARNINGS TO SUPPORT FUTURE GROWTH. Several of Capitol's bank subsidiaries are less than three years old and Capitol's oldest bank is twenty years old. Newly formed banks are expected to incur operating losses in their early periods of operation because of an inability to generate sufficient net interest income to cover operating costs. Newly formed banks may never become profitable. Current accounting rules require immediate write-off, rather than capitalization, of start-up costs and, as a result, future newly formed banks are expected to report larger early period operating losses. Those operating losses can be significant and can occur for longer periods than planned depending upon the ability to control operating expenses and generate net interest income, which could affect the availability of earnings retained to support future growth. IF CAPITOL IS UNABLE TO MANAGE ITS GROWTH, ITS ABILITY TO PROVIDE QUALITY SERVICES TO CUSTOMERS COULD BE IMPAIRED AND CAUSE ITS CUSTOMER AND EMPLOYEE RELATIONS TO SUFFER. Capitol has rapidly and significantly expanded its operations and anticipates that further expansion will be required to realize its growth strategy. Capitol's rapid growth has placed significant demands on its management and other resources which, given its expected future growth rate, are likely to continue. To manage future growth, Capitol will need to attract, hire and retain highly skilled and motivated officers and employees and improve existing systems and/or implement new systems for: - transaction processing; - operational and financial management; and - training, integrating and managing Capitol's growing employee base. 13 FAVORABLE ENVIRONMENT FOR FORMATION OF NEW BANKS COULD CHANGE ADVERSELY, WHICH COULD SEVERELY LIMIT CAPITOL'S EXPANSION OPPORTUNITIES. Capitol's growth strategy includes the addition of new banks. Thus far, Capitol has experienced favorable business conditions for the formation of its small, community and customer-focused banks. Those favorable conditions could change suddenly or over an extended period of time. A change in the availability of financial capital, human resources or general economic conditions could eliminate or severely limit expansion opportunities. To the extent Capitol is unable to effectively attract personnel and deploy its capital in new or existing banks, this could adversely affect future asset growth, earnings and the value of Capitol's common stock. CAPITOL'S BANK'S SMALL SIZE MAY MAKE IT DIFFICULT TO COMPETE WITH LARGER INSTITUTIONS BECAUSE CAPITOL IS NOT ABLE TO COMPETE WITH LARGE BANKS IN THE OFFERING OF SIGNIFICANTLY LARGER LOANS. Capitol endeavors to capitalize its newly formed banks with the lowest dollar amount permitted by regulatory agencies. As a result, the legal lending limits of Capitol's banks severely constrain the size of loans that those banks can make. In addition, many of the banks' competitors have significantly larger capitalization and, hence, an ability to make significantly larger loans. The inability to offer larger loans limits the revenues that can be earned from interest amounts charged on larger loan balances. Capitol's banks are intended to be small in size. They each generally operate from single locations. They are very small relative to the dynamic markets in which they operate. Each of those markets has a variety of large and small competitors that have resources far beyond those of Capitol's banks. While it is the intention of Capitol's banks to operate as niche players within their geographic markets, their continued existence is dependent upon being able to attract and retain loan customers in those large markets that are dominated by substantially larger regulated and unregulated financial institutions. IF CAPITOL CANNOT RECRUIT ADDITIONAL HIGHLY QUALIFIED PERSONNEL, CAPITOL'S CUSTOMER SERVICE COULD SUFFER, CAUSING ITS CUSTOMER BASE TO DECLINE. Capitol's strategy is also dependent upon its continuing ability to attract and retain other highly qualified personnel. Competition for such employees among financial institutions is intense. Availability of personnel with appropriate community banking experience varies. If Capitol does not succeed in attracting new employees or retaining and motivating current and future employees, Capitol's business could suffer significantly. CAPITOL AND ITS BANKS OPERATE IN AN ENVIRONMENT HIGHLY REGULATED BY STATE AND FEDERAL GOVERNMENT; CHANGES IN FEDERAL AND STATE BANKING LAWS AND REGULATIONS COULD HAVE A NEGATIVE IMPACT ON CAPITOL'S BUSINESS. As a bank holding company, Capitol is regulated primarily by the Federal Reserve Board. Capitol's current bank affiliates are regulated primarily by the state banking regulators and the FDIC and, in the case of one national bank, the Office of the Comptroller of the Currency (OCC). Federal and the various state laws and regulations govern numerous aspects of the banks' operations, including: - adequate capital and financial condition; - permissible types and amounts of extensions of credit and investments; - permissible nonbanking activities; and - restrictions on dividend payments. 14 Federal and state regulatory agencies have extensive discretion and power to prevent or remedy unsafe or unsound practices or violations of law by banks and bank holding companies. Capitol and its banks also undergo periodic examinations by one or more regulatory agencies. Following such examinations, Capitol may be required, among other things, to change its asset valuations or the amounts of required loan loss allowances or to restrict its operations. Those actions would result from the regulators' judgments based on information available to them at the time of their examination. The banks' operations are required to follow a wide variety of state and federal consumer protection and similar statutes and regulations. Federal and state regulatory restrictions limit the manner in which Capitol and its banks may conduct business and obtain financing. Those laws and regulations can and do change significantly from time to time, and any such change could adversely affect Capitol. REGULATORY ACTION COULD SEVERELY LIMIT FUTURE EXPANSION PLANS. To carry out some of its expansion plans, Capitol is required to obtain permission from the Federal Reserve Board. Applications for the formation of new banks are submitted to the state and federal bank regulatory agencies for their approval. While Capitol's prior experience with the regulatory application process has been favorable, the future climate for regulatory approval is impossible to predict. Regulatory agencies could prohibit or otherwise significantly restrict the expansion plans of Capitol, its current bank subsidiaries and future new start-up banks. THE BANKS' ALLOWANCES FOR LOAN LOSSES MAY PROVE INADEQUATE TO ABSORB ACTUAL LOAN LOSSES, WHICH MAY ADVERSELY IMPACT NET INCOME OR INCREASE OPERATING LOSSES. Capitol believes that its consolidated allowance for loan losses is maintained at a level adequate to absorb any inherent losses in the loan portfolios at the balance sheet date. Management's estimates are used to determine the allowance and are based on historical loan loss experience, specific problem loans, value of underlying collateral and other relevant factors. These estimates are subjective and their accuracy depends on the outcome of future events. Actual losses may differ from current estimates. Depending on changes in economic, operating and other conditions, including changes in interest rates, that are generally beyond Capitol's control, actual loan losses could increase significantly. As a result, such losses could exceed current allowance estimates. No assurance can be provided that the allowance will be sufficient to cover actual future loan losses should such losses be realized. Loan loss experience, which is helpful in estimating the requirements for the allowance for loan losses at any given balance sheet date, has been minimal at many of Capitol's banks. Because many of Capitol's banks are young, they do not have seasoned loan portfolios, and it is likely that the ratio of the allowance for loan losses to total loans may need to be increased in future periods as the loan portfolios become more mature and loss experience evolves. If it becomes necessary to increase the ratio of the allowance for loan losses to total loans, such increases would be accomplished through higher provisions for loan losses, which may adversely impact net income or increase operating losses. Widespread media reports of concerns about the health of the domestic economy have continued in 2003. Capitol's loan losses in 2002 increased. Further, nonperforming loans have increased and it is anticipated that levels of nonperforming loans and related loan losses may increase as economic conditions, locally and nationally, evolve. In addition, bank regulatory agencies, as an integral part of their supervisory functions, periodically review the adequacy of the allowance for loan losses. Regulatory agencies may require Capitol or its banks to increase their provision for loan losses or to recognize further loan charge-offs based upon judgments different from those of management. Any increase in the allowance required by regulatory agencies could have a negative impact on Capitol's operating results. 15 CAPITOL'S COMMERCIAL LOAN CONCENTRATION TO SMALL BUSINESSES INCREASES THE RISK OF DEFAULTS BY BORROWERS AND SUBSTANTIAL CREDIT LOSSES COULD RESULT, CAUSING SHAREHOLDERS TO LOSE THEIR INVESTMENT IN CAPITOL'S COMMON STOCK. Capitol's banks make various types of loans, including commercial, consumer, residential mortgage and construction loans. Capitol's strategy emphasizes lending to small businesses and other commercial enterprises. Loans to small and medium-sized businesses are generally riskier than single-family mortgage loans. Typically, the success of a small or medium-sized business depends on the management talents and efforts of one or two persons or a small group of persons, and the death, disability or resignation of one or more of these persons could have a material adverse impact on the business. In addition, small and medium-sized businesses frequently have smaller market shares than their competition, may be more vulnerable to economic downturns, often need substantial additional capital to expand or compete and may experience substantial variations in operating results, any of which may impair a borrower's ability to repay a loan. Substantial credit losses could result, causing shareholders to lose their entire investment in Capitol's common stock. THE OPEN MARKET COMMITTEE OF THE FEDERAL RESERVE BOARD (FRBOMC) HAS TAKEN UNPRECEDENTED ACTIONS TO SIGNIFICANTLY REDUCE INTEREST RATES AND DECREASES IN INTEREST RATES MAY ADVERSELY AFFECT CAPITOL'S NET INTEREST INCOME. CHANGES IN NET INTEREST INCOME. Capitol's profitability is significantly dependent on net interest income. Net interest income is the difference between interest income on interest-earning assets, such as loans, and interest expense on interest-bearing liabilities, such as deposits. Therefore, any change in general market interest rates, whether as a result of changes in monetary policies of the Federal Reserve Board or otherwise, can have a significant effect on net interest income. Capitol's assets and liabilities may react differently to changes in overall market rates or conditions because there may be mismatches between the repricing or maturity characteristic of assets and liabilities. As a result, changes in interest rates can affect net interest income in either a positive or negative way. In 2001, the FRBOMC decreased interbank interest rates 11 times, which was an unprecedented action to reduce rates 475 basis points within a year. Interest rates have remained relatively stable in 2002 with only one rate change from FRBOMC. Through June 24, 2003 there have been no interest rate changes initiated by FRBOMC. Future stability of interest rates and FRBOMC policy are uncertain. CHANGES IN THE YIELD CURVE. Changes in the difference between short and long-term interest rates, commonly known as the yield curve, may also harm Capitol's business. For example, short-term deposits may be used to fund longer-term loans. When differences between short-term and long-term interest rates shrink or disappear, the spread between rates paid on deposits and received on loans could narrow significantly, decreasing net interest income. EXISTING SUBSIDIARIES OF CAPITOL MAY NEED ADDITIONAL FUNDS TO AID IN THEIR GROWTH OR TO MEET OTHER ANTICIPATED NEEDS WHICH COULD REDUCE CAPITOL'S FUNDS AVAILABLE FOR NEW BANK DEVELOPMENT OR OTHER CORPORATE PURPOSES. Future growth of existing banks may require additional capital infusions or other investment by Capitol to maintain compliance with regulatory capital requirements or to meet growth opportunities. Such capital infusions could reduce funds available for development of new banks, or other corporate purposes. 16 CAPITOL HAS DEBT SECURITIES OUTSTANDING WHICH MAY PROHIBIT FUTURE CASH DIVIDENDS ON CAPITOL'S COMMON STOCK OR OTHERWISE ADVERSELY AFFECT REGULATORY CAPITAL COMPLIANCE. As of March 31, 2003, Capitol had notes payable to an unaffiliated bank outstanding in the amount of approximately $4 million. Under this credit facility, borrowings of up to $25 million are permitted, subject to certain conditions. Capitol is reliant upon its bank subsidiaries' earnings and dividends to service this debt obligation which may be inadequate to service the obligations. In the event of violation of the covenants relating to the credit facility, or due to failure to make timely payments of interest and debt principal, the lender may terminate the credit facility. In addition, upon such occurrences, dividends on Capitol's common stock may be prohibited or Capitol may be otherwise unable to make future dividends payments or obtain replacement credit facilities. Capitol also has several series of trust-preferred securities outstanding, totaling about $61 million, which are treated as capital for regulatory ratio compliance purposes. Although these securities are viewed as capital for regulatory purposes, they are debt securities which have numerous covenants and other provisions which, in the event of noncompliance, could have an adverse effect on Capitol. For example, these securities permit Capitol to defer the periodic payment of interest for various periods, however, if such payments are deferred, Capitol is prohibited from paying cash dividends on its common stock during deferral periods and until deferred interest is paid. Future payment of interest is dependent upon Capitol's bank subsidiaries' earnings and dividends which may be inadequate to service the obligations. Continued classification of these securities as elements of capital for regulatory purposes is subject to future changes in regulatory rules and regulations and the actions of regulatory agencies, all of which is beyond the control or influence of Capitol. POSSIBLE VOLATILITY OF STOCK PRICE. The market price of Capitol's common stock may fluctuate in response to numerous factors, including variations in the annual or quarterly financial results of Capitol, or its competitors; changes by financial research analysts in their estimates of the earnings of Capitol or its competitors or the failure of Capitol or its competitors to meet such estimates; conditions in the economy in general or the banking industry in particular; or unfavorable publicity affecting Capitol, its banks, or the industry. In addition, equity markets have, on occasion, experienced significant price and volume fluctuations that have affected the market price for many companies' securities which have been unrelated to the operating performance of those companies. Any fluctuation may adversely affect the prevailing market price of Capitol's common stock. CAPITOL'S BANK SUBSIDIARIES HAVE DECENTRALIZED MANAGEMENT WHICH COULD HAVE A NEGATIVE IMPACT ON THE RATE OF GROWTH AND PROFITABILITY OF CAPITOL AND ITS BANK SUBSIDIARIES. Capitol's bank subsidiaries have independent boards of directors and management teams. This decentralized structure gives the banks control over the day-to-day management of the institution including the selection of management teams, the pricing of loans and deposits, marketing decisions and the strategy in handling problem loans. This decentralized structure may impact Capitol's ability to uniformly implement holding company strategy at the bank level. It may slow Capitol's ability to react to changes in strategic direction due to outside factors such as rate changes and changing economic conditions. The structure may cause additional management time to be spent on internal issues and could negatively impact the growth and profitability of the banks individually and the holding company. 17 RECENT DEVELOPMENTS In April 2003, Capitol announced the completion of an $11 million private placement of its common stock to select institutional investors and the issuance of approximately 550,000 shares of previously unissued common stock. Proceeds from the offering have been used to reduce borrowings from an unaffiliated bank and investment in short-term investments. In addition to the proposed Desert share exchange, Capitol has proposed share exchange transactions regarding Red Rock Community Bank ("Red Rock"), Black Mountain Community Bank ("Black Mountain") and Elkhart Community Bank ("Elkhart"), which are majority-owned subsidiaries of Capitol, subject to the approval of their shareholders (other than Capitol). If the Red Rock share exchange is approved, Capitol estimates issuing approximately 295,000 shares of Capitol common stock. If the Black Mountain share exchange is approved, Capitol estimates issuing approximately 172,000 shares of Capitol common stock. If the Elkhart share exchange is approved, Capitol estimates issuing approximately 169,000 shares of Capitol common stock. On May 15, 2003, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 150, ACCOUNTING FOR CERTAIN FINANCIAL INSTRUMENTS WITH CHARACTERISTICS OF BOTH LIABILITIES AND Equity. Management has not completed its analysis of this very recently issued standard which becomes effective for Capitol's financial statements for periods beginning July 1, 2003. Based on management's preliminary analysis of this new standard, the primary impact of it on Capitol's consolidated financial statements will be the reclassification of trust-preferred securities as liabilities from their prior mezzanine capital treatment, although those securities will continue to be treated as qualifying capital for regulatory purposes. Bank development efforts are currently under consideration at June 24, 2003 in several states including pre-development exploratory discussions, lease and employment negotiations and preparation of preliminary regulatory applications for formation and/or acquisition of community banks. In early May 2003, Capitol filed an application with the New York Stock Exchange (NYSE) for the listing of its common stock. On June 24, 2003, Capitol's common stock began trading on the NYSE under the symbol "CBC" and its listing on the Nasdaq Stock Market was terminated. 18 COMPARATIVE HISTORICAL, PRO FORMA AND PRO FORMA EQUIVALENT PER SHARE INFORMATION The following table, which should be read in conjunction with the unaudited pro forma condensed consolidated balance sheet, pro forma condensed statements of operations and related notes to the pro forma financial statements, which appear elsewhere herein, summarizes per share information:
As of and for the Three Months Ended For the Year Ended March 31, 2003 December 31, 2002 -------------- ----------------- Capitol common stock: Net income per share: Basic: Historical $ 0.45 $ 1.64 Pro forma consolidated(1) 0.45 1.63 Diluted: Historical 0.44 1.57 Pro forma consolidated(1) 0.44 1.56 Cash dividends per share: Historical 0.12 0.44 Pro forma consolidated(2) 0.12 $ 0.44 Book value per share at March 31, 2003: Historical 14.01 Pro forma consolidated(1) $14.11 Desert common stock: Net income per share: Basic: Historical $ 0.24 $ 0.42 Pro forma equivalent(3) 0.30 1.07 Diluted: Historical 0.24 0.42 Pro forma equivalent(3) 0.29 1.03 Cash dividends per share: Historical -- -- Pro forma equivalent(3) 0.08 $ 0.29 Book value per share at March 31, 2003: Historical 10.51 Pro forma equivalent(3) $ 9.29
1--Assumes completion of proposed Desert exchange and excludes the pro forma effect of other pending share exchange transactions or proposals of Capitol (see "Recent Developments"). 2--The Capitol pro forma consolidated dividends per share represent historical dividends per share. 3--The Desert pro forma equivalent per share amounts are calculated by multiplying Capitol pro forma consolidated per share amounts by the exchange ratio of .658117. 19 CAPITALIZATION The table presented below shows Capitol's actual total capitalization as of March 31, 2003, and the proposed exchange of Capitol's common stock for Desert's common stock as described in this proxy statement/prospectus and pending share exchanges regarding three other subsidiaries of Capitol (as described below).
AS OF MARCH 31, 2003 --------------------------------------------------------------- AS ADJUSTED FOR THE PROPOSED DESERT EXCHANGE(4) AND AS ADJUSTED FOR THE PENDING RED ROCK, BLACK PROPOSED DESERT MOUNTAIN AND ELKHART ACTUAL EXCHANGE(4) EXCHANGES(5) --------- --------- --------- DEBT OBLIGATIONS ................................ $ 84,348 $ 84,348 $ 84,348 ========= ========= ========= TRUST-PREFERRED SECURITIES ...................... $ 61,299 $ 61,299 $ 61,299 MINORITY INTERESTS IN CONSOLIDATED SUBSIDIARIES.. 31,808 29,442 20,115 STOCKHOLDERS' EQUITY(1): Common stock, no par value; 25,000,000 shares authorized; issued, and outstanding: Actual - 11,737,860 shares ................. 134,211 00 00 As adjusted for the proposed Desert exchange - 11,899,099 shares(4) .......... 00 137,583 00 As adjusted for proposed Desert(4) and pending Red Rock, Black Mountain and Elkhart exchanges - 12,535,310 shares(5) . 00 00 150,890 Retained earnings ............................ 30,228 30,228 30,228 Market value adjustment for available-for-sale securities (net of tax effect) ..................................... 177 177 177 Less unallocated ESOP shares .................. (145) (145) (145) --------- --------- --------- Total stockholders' equity ................ $ 164,471 $ 167,843 $ 181,150 ========= ========= ========= Book value per share of common stock .......... $ 14.01 $ 14.11 $ 14.45 ========= ========= ========= TOTAL CAPITALIZATION(2) ......................... $ 196,279 $ 197,285 $ 201,265 ========= ========= ========= TOTAL CAPITAL FUNDS(3) .......................... $ 257,578 $ 258,584 $ 262,564 ========= ========= ========= CAPITAL RATIOS: Stockholders' equity to total assets ......... 6.47% 6.60% 7.12% Total capitalization to total assets ......... 7.28% 7.76% 7.91% Total capital funds to total assets .......... 10.14% 10.18% 10.32%
Footnotes regarding the above presentation appear on the following page. 20 FOOTNOTES TO CAPITALIZATION TABLE (1) Does not include approximately 2.4 million shares of common stock issuable upon exercise of stock options. (2) Total capitalization includes stockholders' equity and minority interests in consolidated subsidiaries. (3) Total capital funds include stockholders' equity, minority interests in consolidated subsidiaries and trust-preferred securities. (4) Assumes issuance of 161,239 shares of Capitol common stock upon completion of the proposed Desert exchange. See "Unaudited Pro Forma Consolidated Financial Information." (5) Assumes issuance of Capitol common stock upon completion of proposed Desert share exchange. Also assumes issuance of approximately 636,000 shares of Capitol's common stock which may be issued upon completion of the pending share exchange transactions regarding Red Rock Community Bank, Black Mountain Community Bank and Elkhart Community Bank. The pending Red Rock, Black Mountain and Elkhart share exchanges are subject to the approval of those respective banks' shareholders other than Capitol. [The remainder of this page intentionally left blank] 21 DIVIDENDS AND MARKET FOR COMMON STOCK Capitol's common stock was listed on the Nasdaq National Market under the symbol "CBCL" through June 23, 2003. On June 24, 2003, Capitol's common stock began trading on the New York Stock Exchange (NYSE) under the symbol "CBC". The following table shows the high and low sale prices per share of common stock as reported on the Nasdaq National Market. The table reflects inter-dealer prices, without retail mark-up, mark-down or commission, and may not represent actual transactions. The last reported sale price of Capitol's common stock was $25.950 on June 24, 2003. Cash Dividends 2001 High Low Paid - ---- ---- --- ---- Quarter ended March 31 $ 14.250 $ 9.688 $ 0.10 Quarter ended June 30 15.660 12.000 0.10 Quarter ended September 30 17.500 12.250 0.10 Quarter ended December 31 15.200 12.800 0.10 2002 - ---- Quarter ended March 31 16.820 13.300 0.10 Quarter ended June 30 23.860 16.450 0.10 Quarter ended September 30 24.250 15.810 0.12 Quarter ended December 31 23.780 15.130 0.12 2003 - ---- Quarter ended March 31 24.250 19.000 0.12 Quarter ended June 30 (through June 24) $27.880 $20.000 $0.12 As of March 17, 2003, there were 5,228 beneficial holders of Capitol's common stock based on information supplied by its stock transfer agent and other sources. Holders of common stock are entitled to receive dividends when, as and if declared by Capitol's Board of Directors out of funds legally available. Although Capitol has paid dividends on its common stock for the preceding five years, there is no assurance that dividends will be paid in the future. The declaration and payment of dividends on Capitol's common stock depends upon the earnings and financial condition of Capitol, liquidity and capital requirements, the general economic and regulatory climate, Capitol's ability to service debt obligations senior to the common stock and other factors deemed relevant by Capitol's Board of Directors. Regulatory authorities impose limitations on the ability of banks to pay dividends to Capitol and the ability of Capitol to pay dividends to its shareholders. There is no market for Desert's common stock. Any transfers have been made privately and are not reported. Desert has never paid a dividend on its common stock. 22 CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS This proxy statement/prospectus includes forward-looking statements. Capitol has based these forward-looking statements on its current expectations and projections about future events. These forward-looking statements may be impacted by risks, uncertainties and assumptions. Examples of some of the risks, uncertainties or assumptions that may impact the forward-looking statements are: - the results of management's efforts to implement Capitol's business strategy including planned expansion into new markets; - adverse changes in the banks' loan portfolios and the resulting credit risk-related losses and expenses; - adverse changes in the economy of the banks' market areas that could increase credit-related losses and expenses; - adverse changes in real estate market conditions that could also negatively affect credit risk; - the possibility of increased competition for financial services in Capitol's markets; - fluctuations in interest rates and market prices, which could negatively affect net interest margins, asset valuations and expense expectations; and - other factors described in "Risk Factors". 23 INFORMATION ABOUT CAPITOL This proxy statement/prospectus is accompanied by a copy of the following documents as indicated in Annex E: - Report on Form 10-Q for period ended March 31, 2003 - Annual Report to Shareholders for year ended December 31, 2002 - Annual Report on Form 10-K for year ended December 31, 2002 - Proxy statement for Capitol's Annual Meeting of Shareholders held on May 8, 2003 INFORMATION ABOUT DESERT MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. Management's discussion and analysis of financial condition and results of operations for the periods ended March 31, 2003 and December 31, 2002 are included in this proxy statement/prospectus as part of Annex D. FINANCIAL STATEMENTS. Unaudited interim condensed financial statements of Desert as of March 31, 2003 and for the three months ended March 31, 2003 and 2002 are included in this proxy statement/prospectus as part of Annex D. Audited financial statements of Desert as of and for the periods ended December 31, 2002, 2001 and 2000 are included in this proxy statement/prospectus as part of Annex D. [The remainder of this page intentionally left blank] 24 THE ELECTION OF DIRECTORS Desert's Articles of Incorporation and By-Laws provide that the number of Directors, as determined from time to time by the Board of Directors, shall be no less than (5) and no more than (25). The Board of Directors has presently fixed the number of Directors at thirteen. The Board of Directors has nominated the thirteen (13) directors named below for a one-year term. All nominees are willing to be elected and to serve in such capacity for one year and until the election and qualification of their successors. All of the nominees for election to the Board of Directors are currently members of Desert's Board of Directors. The proposed nominees for election as Directors are willing to be elected and serve but in the event that any nominee at the time of election to serve or is otherwise unavailable for election, the Board of Directors may select a substitute nominee, and in that event the persons named in the enclosed proxy intend to vote such proxy for the person selected. The affirmative vote of a plurality of the votes cast at the meeting is required for the nominees to be elected. The table following sets for information regarding Desert's Directors based on the date furnished by them: NAME, PROFESSIONAL POSITIONS & POSITIONS HELD WITH DESERT - --------------------------------------------------------- Robert J. Andrews, CFO & Director of Operations, IGT Lottery Division; Director Tracy R. Brouchard, President, National Title Company; Director Michael J. Devine, Attorney at Law; Director Rosa M. K. Dominguez, President, Discovery Travel; Director Tom R. Grimmett, Owner, Grimmett & Company; Director Garry L. Hayes, President, Law Office of Garry L. Hayes; Director James W. Howard, President, Desert Community Bank; Director Charles L. Lasky, President, Lasky, Fifarek & Hogan, P.C.; Director John S. Lewis, President - Western Regions, Capitol Bancorp Limited; Director Thomas C. Mangione, Chairman, President & CEO, Red Rock Community Bank; Director Leland D. Pace, Managing Partner, Stewart, Archibald & Barney, P.C.; Director Joseph D. Reid III, Corporate Counsel, Capitol Bancorp Limited; Director Stephen D. Stiver, Retired; Director 25 VOTING SECURITIES AND PRINCIPAL HOLDERS. The following table shows the share holdings of entities and/or individuals owning 5% or more of Desert's common stock and the shares of Desert owned by each director and officer of Desert and all directors and officers as a group. Where applicable, the table includes shares held by members of their immediate families.
Desert shares beneficially owned ------------------------------------------------------ Percentage of all Desert shares Percentage of all excluding Desert Name of Beneficial owner Number Desert Shares shares owned by Capitol - ------------------------ ------ ------------- ----------------------- Entities and/or individuals owning 5% or more of Desert's common stock: Capitol Bancorp Limited 255,000 51.00% N/A ======= ===== ===== John and Eloise DeJoria 25,000 5.00% 10.20% ======= ===== ===== Lewis D. Johns 36,500 7.30% 14.90% ======= ===== ===== Desert's Directors and Officers: Robert J. Andrews 1,500 0.30% 0.61% Tracy R. Bouchara 0 -- -- Michael J. Devine 200 0.04% 0.08% Rose M.K. Dominquez 1,000 0.20% 0.41% Tom Grimmett 2,500 0.50% 1.02% Garry L. Hayes 900 0.18% 0.37% James W. Howard 10,000 2.00% 4.08% Charles L. Lasky 2,000 0.40% 0.82% Thomas C. Mangione 1,000 0.20% 0.41% Gregory J. McKinley 3,000 0.60% 1.22% Leland D. Pace 1,950 0.39% 0.80% Joseph D. Reid III 500 0.10% 0.20% Stephen D. Stiver 3,000 0.60% 1.22% Al G. Gourrier II 0 -- -- Rodney K. Chaney 200 0.04% 0.08% Cheryl A. Fricker 100 0.02% 0.04% Eileen S. Hagler 2,500 0.50% 1.02% ------- ----- ----- Total of Directors and Officers 30,350 6.07% 12.39% ======= ===== =====
Other than those entities and/or individuals indicated above, no individual owns greater than 5% of the outstanding shares of Desert. 26 PRO FORMA CONSOLIDATED FINANCIAL INFORMATION Desert is already included in Capitol's consolidated financial statements. Unaudited pro forma consolidated financial information follow, adjusted for the proposed Desert exchange, which will be accounted for under the purchase method of accounting (if consummated), as if it had occurred effective March 31, 2003 (shown on page 28) and at the beginning of 2002 (shown on page 29). The accompanying notes to the unaudited pro forma consolidated financial statements are an integral part of the unaudited pro forma financial information. The unaudited pro forma results of operations for the period ended March 31, 2003 are not necessarily indicative of results for the year ending December 31, 2003 or any subsequent period thereafter. The unaudited pro forma results of operations do not give effect to any potential cost savings or other synergies that could result from the share exchange. [The remainder of this page intentionally left blank] 27 Unaudited Pro Forma Condensed Consolidated Balance Sheet Capitol Bancorp Ltd. And Subsidiaries March 31, 2003
(in $1,000s, except share and per-share data) Pro Forma Pro Forma Adjustments Amounts Regarding After Historical Proposed Proposed Amounts Share Share ASSETS As Reported Exchange Exchanges ------------ ------------ ------------ Cash and cash equivalents $ 323,945 $ 323,945 Loans held for resale 65,465 65,465 Investment securities 40,517 40,517 Portfolio loans 2,052,157 2,052,157 Less allowance for loan losses (30,034) (30,034) ------------ ------------ Net portfolio loans 2,022,123 2,022,123 Premises and equipment, net 20,565 20,565 Goodwill and other intangibles 24,606 $ 1,006 A 25,612 Other assets 43,068 43,068 ------------ ------------ ------------ TOTAL ASSETS $ 2,540,289 $ 1,006 $ 2,541,295 ============ ============ ============ LIABILITIES AND STOCKHOLDERS' EQUITY Liabilities: Deposits $ 2,181,440 $ 2,181,440 Debt obligations 84,348 84,348 Other liabilities 16,923 16,923 ------------ ------------ ------------ Total liabilities 2,282,711 -- 2,282,711 Trust-preferred securities 61,299 61,299 Minority interests in consolidated subsidiaries 31,808 $ (2,366) B 29,442 Stockholders' equity: Common stock 134,211 3,372 C 137,583 Retained earnings 30,228 30,228 Other, net 32 32 ------------ ------------ ------------ Total stockholders' equity 164,471 3,372 167,843 ------------ ------------ ------------ TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 2,540,289 $ 1,006 $ 2,541,295 ============ ============ ============ Number of common shares issued and outstanding 11,737,860 161,239 11,899,099 ============ ============ ============ Book value per Capitol share $ 14.01 $ 14.11 ============ ============
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET: A--Goodwill arising from proposed share exchange. Based on current estimates, there are no material identifiable intangible assets regarding the proposed share exchange. The net carrying values of the Bank's assets and liabilities approximate fair value. No deposit core intangible asset has been estimated due to the brief period of Bank's operation. B--Elimination of minority interests associated with Bank's shareholders other than Capitol. C--Estimated net proceeds applicable to proposed share exchanges with Bank's shareholders other than Capitol. 28 Unaudited Pro Forma Condensed Consolidated Statements of Operations Capitol Bancorp Ltd. And Subsidiaries
(in $1,000s, except share and per-share data) Three Months Ended March 31, 2003 ----------------------------------------------- Historical Pro Forma Pro Forma Amounts Adjustments Amounts ------------ ------------ ------------ Interest income $ 39,986 $ 39,986 Interest expense 12,999 12,999 ------------ ------------ Net interest income 26,987 26,987 Provision for loan losses 1,890 1,890 ------------ ------------ Net interest income after provision for loan losses 25,097 25,097 Noninterest income 4,529 4,529 Noninterest expense 21,156 21,156 ------------ ------------ Income before federal income taxes and minority interest 8,470 8,470 Federal income taxes 2,944 2,944 ------------ ------------ Income before minority interest 5,526 5,526 Minority interest in net income of consolidated subsidiaries (213) $ 59 A (154) ------------ ------------ ------------ NET INCOME $ 5,313 $ 59 $ 5,372 ============ ============ ============ NET INCOME PER SHARE: Basic $ 0.45 $ 0.45 ============ ============ Diluted $ 0.44 $ 0.44 ============ ============ Average number of common shares outstanding for purposes of computing basic net income per share--denominator for basic net income per share 11,697,756 161,239 B 11,858,995 Effect of dilutive securities--stock options and warrants 438,359 438,359 ------------ ------------ ------------ Average number of common shares and dilutive securities for purposes of computing diluted net income per share-- denominator for diluted net income per share 12,136,115 161,239 12,297,354 ============ ============ ============ (in $1,000s, except share and per-share data) Year Ended December 31, 2002 ----------------------------------------------- Historical Pro Forma Pro Forma Amounts Adjustments Amounts ------------ ------------ ------------ Interest income $ 156,454 $ 156,454 Interest expense 55,860 55,860 ------------ ------------ Net interest income 100,594 100,594 Provision for loan losses 12,676 12,676 ------------ ------------ Net interest income after provision for loan losses 87,918 87,918 Noninterest income 14,982 14,982 Noninterest expense 77,151 77,151 ------------ ------------ Income before federal income taxes and minority interest 25,749 25,749 Federal income taxes 8,701 8,701 ------------ ------------ Income before minority interest 17,048 17,048 Minority interest in net income of consolidated subsidiaries (395) $ 102 A (293) ------------ ------------ ------------ NET INCOME $ 16,653 $ 102 $ 16,755 ============ ============ ============ NET INCOME PER SHARE: Basic $ 1.64 $ 1.63 ============ ============ Diluted $ 1.57 $ 1.56 ============ ============ Average number of common shares outstanding for purposes of computing basic net income per share--denominator for basic net income per share 10,139,000 161,239 B 10,300,239 Effect of dilutive securities--stock options and warrants 461,000 461,000 ------------ ------------ ------------ Average number of common shares and dilutive securities for purposes of computing diluted net income per share-- denominator for diluted net income per share 10,600,000 161,239 10,761,239 ============ ============ ============
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS: A--Amount represents improvement in operating results attributable to minority interest due to proposed share exchange regarding Desert Community Bank. B--Assumes issuance of 161,239 shares of Capitol common stock in the proposed share exchange described in Note A above. 29 THE EXCHANGE GENERAL The Desert Board of Directors is using this proxy statement/prospectus to solicit proxies from the holders of Desert common stock for use at the annual shareholders' meeting. At the annual shareholders' meeting to be held on July 25, 2003, Desert common shareholders will be asked to approve the exchange. The Plan of Share Exchange provides for Desert's minority shareholders to exchange the 49% of the common stock of Desert not owned by Capitol for Capitol common stock. Upon consummation of the exchange, Desert will become a wholly-owned subsidiary of Capitol. In the exchange, Desert shareholders will receive shares of Capitol's common stock. BACKGROUND OF THE EXCHANGE The concept of a potential share exchange transaction with Capitol has been discussed informally from time to time from the beginning of Desert's operations. Capitol, through its CEO, expressed a willingness to extend an offer of an exchange around the Bank's 36th month of operation. These discussions, between the bank's board, and Capitol's CEO and other executive officers of Capitol, occurred at various Desert board meetings during that period. The objectives of the potential exchange would be to enable shareholders of Desert to achieve liquidity in their investment, a reasonable return on their investment in the form of a `premium' and to accomplish such an exchange on a tax-free basis. Without the exchange, shareholders of Desert will continue to hold Desert stock which has no market and is illiquid. Desert's board of directors has not solicited or received any other proposals for the potential exchange or sale of Desert's shares of common stock which are not owned by Capitol. If other proposals were under consideration for sale or exchange of Desert's shares to an entity other than Capitol, Capitol would be permitted to vote its shares of Desert. By virtue of Capitol's majority ownership of Desert, it is likely that Capitol would not vote its shares of Desert in favor of any other proposals regarding a share exchange or sale of the minority interest in Desert with another party. In addition, Capitol currently has no intentions of selling its majority interest in Desert. Hence, the only proposal under consideration is Capitol's proposal. Capitol based its proposal on its prior transactions, whereby it has acquired the minority interest in banks it controls. In those prior transactions, Capitol has offered those minority shareholders an opportunity to exchange their bank shares for Capitol common stock on or about the 36th month of the bank's operations. Although Capitol is under no contractual obligation to make such an offer to acquire the minority interests in any of its present bank subsidiaries, it has made this proposal to Desert's board of directors consistent with its informal discussions with Desert's board during the past three years. As in other share exchange transactions, Capitol based its proposal at some premium over the book value of the bank's common stock. However, Capitol's determination of the share value of Desert, for purposes of the proposed exchange, is solely based on its arbitrary valuation as offered by Capitol. Consensus between Capitol and Desert's directors who are not employees or officers of Capitol was reached in May 2003, to approve the proposed exchange subject only to: - obtaining an independent opinion that the proposed share exchange is fair to Desert's shareholders from a financial point of view; and - obtaining approval for the proposed exchange by a majority of Desert's shares not already owned by Capitol. In May 2003, the Desert board approved the Plan of Share Exchange and agreed to call a shareholder meeting for a shareholder vote to approve the Plan of Share Exchange. 30 DESERT'S REASONS FOR THE EXCHANGE. Desert's reasons for the exchange are that the shareholders of Desert will be best served by the exchange in order to maximize their shareholder value and to provide them: . better protection through diversification geographically and by customer base through Capitol's subsidiary banks rather than dependence upon the resources of a single bank. . the Desert shareholders will receive publicly traded shares, providing them liquidity as opposed to the Desert common stock for which there is no public market. Desert shareholders who choose to do so may continue to hold the Capitol stock they receive in the exchange without being forced to have their investment reduced by the immediate recognition of a capital gains tax. CAPITOL'S REASONS FOR THE EXCHANGE Capitol believes that Desert's profitability will increase. As noted elsewhere in this proxy statement/prospectus, while Desert's assets are reported as part of Capitol's assets for purposes of its consolidated financial statements, Desert's income is attributed to Capitol only in the percentage which Capitol owns of Desert common stock. Capitol desires to acquire the remainder of Desert's common stock so that Capitol can include 100% of Desert's income in Capitol's consolidated income statement. TERMS OF THE EXCHANGE Terms of the exchange are set forth in the Plan of Share Exchange. The Plan of Share Exchange is included as Annex A to this proxy statement/prospectus. You should review the Plan of Share Exchange in its entirety. The terms of the exchange can be summarized as follows: Upon approval of the exchange by a majority of the 49% of the shares of Desert held by shareholders other than Capitol, each share of Desert common stock will be exchanged for shares of Capitol common stock according to a fixed exchange ratio. The exchange ratio is determined by dividing the Desert share value by the Capitol share value. The Desert share value shall be $13.765183 per share. The share value of each share of Capitol common stock shall be $20.916, the average of the closing prices of Capitol common stock for the month ended March 31, 2003, as reported by the Nasdaq Stock Market, Inc. The exchange ratio is determined by dividing the Desert share value by the Capitol share value. Each Desert shareholder (except Capitol) will receive shares of Capitol common stock in exchange for his, her or their Desert common stock calculated by multiplying the number of shares in Desert common stock held by the shareholder by the exchange ratio. Any fractional shares will be paid in cash. DESERT BOARD RECOMMENDATION In determining whether to recommend the proposed share exchange to Desert's shareholders, Desert's board considered the matters discussed in "Desert's Reasons for the Exchange". In addition, Desert's board considered: . no other exchange proposals would be offered either by Capitol or unaffiliated parties; . Capitol already has a majority ownership of Desert; 31 . there is no assurance Capitol would repeat or improve its share exchange proposal at any time in the future; . absent any potential alternatives other than rejecting Capitol's proposal, which could result in Desert's minority shareholders having no future opportunities to exchange, sell or otherwise dispose of their Desert shares; and . Desert's board obtained an opinion from its financial advisor that the exchange would be fair to the shareholders of Desert from a financial point of view. THE DESERT BOARD HAS DETERMINED THAT THE EXCHANGE IS FAIR TO AND IN THE BEST INTERESTS OF THE DESERT SHAREHOLDERS, HAS APPROVED THE PLAN OF SHARE EXCHANGE AND RECOMMENDS THAT THE SHAREHOLDERS VOTE "FOR" APPROVAL OF THE PLAN OF SHARE EXCHANGE. ACCOUNTING TREATMENT Capitol expects the exchange to be treated as the acquisition of a minority interest using the purchase method of accounting. PRO FORMA DATA Because Desert is already a controlled subsidiary of Capitol, it is already included in Capitol's consolidated financial statements. Unaudited pro forma consolidated financial information is presented in this document, adjusted for the proposed Desert exchange, which will be accounted for under the purchase method of accounting (if consummated), as if it had occurred effective March 31, 2003 (shown on page 28) and at the beginning of 2002 (shown on page 29). The accompanying notes to the unaudited pro forma consolidated financial statements are an integral part of the unaudited pro forma financial information. The unaudited pro forma results of operations for the period ended March 31, 2003 are not necessarily indicative of results for the year ending December 31, 2003 or any subsequent period thereafter. The unaudited pro forma results of operations do not give effect to any potential cost savings or other synergies that could result from the share exchange. MATERIAL FEDERAL INCOME TAX CONSEQUENCES The income tax discussion below represents the opinion of Miller, Canfield, Paddock and Stone, PLC, tax counsel to Capitol, on the material federal income tax consequences of the exchange. This discussion is not a comprehensive description of all of the tax consequences that may be relevant to you. For example, counsel did not address tax consequences that arise from rules that apply generally to all taxpayers or to some classes of taxpayers, or tax consequences that are generally assumed to be known by investors. This discussion is based upon the Internal Revenue Code, the regulations of the U.S. Treasury Department, and court and administrative rulings and decisions in effect on the date of this proxy statement/prospectus. These laws may change, possibly retroactively, and any change could affect the continuing validity of this discussion. This discussion also is based upon certain representations made by Desert and Capitol. You should read carefully the full text of the tax opinion of Miller, Canfield, Paddock and Stone, PLC. The opinion is included in this proxy statement/prospectus as Annex C. This discussion also assumes that the exchange will be effected pursuant to applicable state law and otherwise completed according to the terms of the Plan of Share Exchange. You should not rely upon this discussion if any of these factual assumptions or representations is, or later becomes, inaccurate. 32 This discussion also assumes that shareholders hold their shares of Desert common stock as a capital asset and does not address the tax consequences that may be relevant to a particular shareholder receiving special treatment under some federal income tax laws. Shareholders receiving special treatment include: . banks; . tax-exempt organizations; . insurance companies; . dealers in securities or foreign currencies; . Desert shareholders who received their Desert common stock through the exercise of employee stock options or otherwise as compensation; . Desert shareholders who are not U.S. persons; and . Desert shareholders who hold Desert common stock as part of a hedge, straddle or conversion transaction. The discussion also does not address any consequences arising under the laws of any state, locality or foreign jurisdiction. No rulings have been or will be sought from the Internal Revenue Service regarding any matters relating to the exchange. Based on the assumptions and representations above, it is the opinion of Miller, Canfield, Paddock and Stone, PLC, tax counsel to Capitol, that: o the exchange will qualify as a reorganization within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code; o no gain or loss will be recognized by the shareholders of Desert who exchange their Desert common stock solely for Capitol common stock (except with respect to cash received instead of a fractional share of Capitol common stock); o the aggregate tax basis of the Capitol common stock received by Desert shareholders who exchange all of their Desert common stock for Capitol common stock in the exchange will be the same as the aggregate tax basis of the Desert common stock surrendered in exchange (reduced by any amount allocable to a fractional share of Capitol common stock for which cash is received); o the holding period of the Capitol common stock received will include the holding period of shares of Desert common stock surrendered in exchange; and o a holder of Desert common stock that receives cash instead of a fractional share of Capitol common stock will, in general, provided the redemption is not essentially equivalent to a dividend under Section 302(b)(1) of the Internal Revenue Code, recognize capital gain or loss equal to the difference between the cash amount received and the portion of the holder's tax basis in shares of Desert common stock allocable to the fractional share; this gain or loss will be long-term capital gain or loss for federal income tax purposes if the holder's holding period in the Desert common stock exchanged for the fractional share of Capitol common stock satisfies the long-term holding period requirement. 33 The tax opinion of Miller, Canfield, Paddock and Stone, PLC is not binding upon the Internal Revenue Service or the courts. TAX MATTERS ARE VERY COMPLICATED, AND THE TAX CONSEQUENCES OF THE EXCHANGE TO YOU WILL DEPEND ON YOUR PARTICULAR SITUATION. YOU ARE ENCOURAGED TO CONSULT YOUR OWN TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES OF THE EXCHANGE, INCLUDING TAX RETURN REPORTING REQUIREMENTS, THE APPLICABILITY OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS AND THE EFFECT OF ANY PROPOSED CHANGE IN THE TAX LAWS. REGULATORY MATTERS As a bank holding company, Capitol is subject to regulation by the Federal Reserve Board. Federal Reserve Board rules require Capitol to obtain the Federal Reserve Board's permission to acquire at least 51% of a subsidiary bank. The rules of the Federal Reserve Board do not differentiate between ownership of 51% and ownership of 100% of the stock of the subsidiary bank. Of course, Capitol received permission to acquire 51% or more ownership of Desert prior to Desert commencing the business of banking. Accordingly, Capitol will not be required to seek any further approval from the Federal Reserve Board for the exchange. It is a condition of the exchange that the shares of Capitol stock to be issued pursuant to the Plan of Share Exchange be approved for listing on the Nasdaq Stock Market, Inc. or the New York Stock Exchange, as the case may be (see "Recent Developments"), subject to official notice of issuance. An application will be filed to list Capitol's shares. Accordingly, the shares of Capitol common stock to be issued in exchange for the Desert common stock will be publicly tradable upon consummation of the exchange. There will be no restriction on the ability of a former Desert shareholder to sell in the open market the Capitol common stock received (unless the Desert shareholder is also an officer, director or affiliate of either Desert or Capitol, in which case Rule 144 and Rule 145 issued by the SEC do impose certain restrictions on the sale of Capitol common stock). DISSENTERS' RIGHTS By following the specific procedures set forth in the NRS 92A.300 to 92A.500 ("Statutes"), Desert shareholders have a statutory right to dissent from the Plan of Share Exchange. If the Plan of Share Exchange is approved and consummated, any Desert shareholder who properly perfects his dissenters' rights will be entitled, upon consummation of the Plan of Share Exchange, to receive an amount of cash equal to the fair value of his shares of Desert common stock rather than receiving the consideration set forth in the Plan of Share Exchange. The following summary is not a complete statement of statutory dissenters' rights of appraisal, and such summary is qualified by reference to the applicable provisions of the Nevada Revised Statutes, which are reproduced in full in Annex E to this Proxy Statement/Prospectus. A shareholder must complete each step in the precise order prescribed by the statute to perfect his, her or its dissenter's rights of appraisal. Any holder of Desert common stock electing to exercise his, her or its right of dissent (a "Dissenting Shareholder") shall file with Desert, prior to or at the shareholders meeting, a written notice of intent to demand payment for shares if the exchange is effectuated. If the Plan of Share Exchange is approved by the required vote and the Dissenting Shareholder has not voted in favor thereof, the Dissenting Shareholder may make written demand on Desert for payment of the fair value of the Dissenting Shareholder's shares. If the Plan of Share Exchange is effected, Desert shall pay to the Dissenting Shareholder, upon the determination of the fair value, and, in the case of shares represented by certificates, the surrender of such certificates, the fair value thereof. Any Dissenting Shareholder making such demand shall thereafter be entitled only to payment and shall not be entitled to vote or to exercise any other rights of a shareholder. Within ten days after the Plan of Share Exchange is effected, Desert shall give written notice thereof to each Dissenting Shareholder who has made demand as provided in the Nevada Revised Statutes and shall include in such written notice the place where the demand for payment must be sent and where and when certificates for shares must be deposited; supply a form for demanding payment; set a date by which the demand must be received which is not less than thirty days nor more than sixty days after delivery of the notice. 34 Within thirty days after receipt of a demand for payment, Desert shall pay to each dissenter who complied with NRS 92A.440 the amount Desert estimates to be the fair value of the shares plus accrued interest. The Dissenting Shareholder may notify Desert in writing of its own estimate of the fair value of its shares if it believes that the amount paid pursuant to NRS 92A.460 is less than the fair value or incorrectly calculated. If the demand for payment remains unsettled, Desert shall commence a proceeding within sixty days after receipt of the demand petitioning the court to determine the fair value. If a petition is not filed within sixty days, Desert shall pay to each dissenter the amount demanded. The assessment of the cost of the proceedings will be assessed against Desert unless the court finds the dissenters acted arbitrarily, vexatiously or not in good faith in demanding payment. FEDERAL SECURITIES LAWS CONSEQUENCES; STOCK TRANSFER RESTRICTIONS This proxy statement/prospectus does not cover any resales of the Capitol common stock you will receive in the exchange, and no person is authorized to make any use of this proxy statement/prospectus in connection with any such resale. All shares of Capitol common stock you will receive in the exchange will be freely transferable, except that if you are deemed to be an "affiliate" of Desert under the Securities Act of 1933 at the time of the annual shareholders' meeting, you may resell those shares only in transactions permitted by Rule 145 under the Securities Act or as otherwise permitted under the Securities Act. Persons who may be affiliates of Desert for those purposes generally include individuals or entities that control, are controlled by, or are under common control with, Desert, and would not include shareholders who are not officers, directors or principal shareholders of Desert. The affiliates of Desert may not offer, sell or otherwise dispose of any of the shares of Capitol common stock issued to that affiliate in the exchange or otherwise owned or acquired by that affiliate: (1) for a period beginning 30 days prior to the exchange and continuing until financial results covering at least 30 days of post-exchange combined operations of Capitol and Desert have been publicly filed by Capitol; or (2) in violation of the Securities Act. 35 OPINION OF FINANCIAL ADVISOR Desert has retained JMP Financial, Inc. to provide a financial fairness opinion in connection with the exchange. The Desert board selected JMP Financial, Inc. to act as Desert's financial advisor based on its qualifications, expertise and reputation. JMP Financial, Inc. has rendered its opinion, in writing, that, based upon and subject to the various considerations set forth in the opinion, the consideration to be received pursuant to the exchange by the holders of Desert common stock is fair from a financial point of view. The full text of the written opinion of JMP Financial, Inc. is attached as Annex B to this proxy statement/prospectus and sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the scope of the review undertaken by JMP Financial, Inc. in rendering its opinion. Desert shareholders are urged to, and should, read the opinion carefully and in its entirety. The opinion is directed to the Desert board and addresses only the fairness from a financial point of view of the consideration received pursuant to the exchange as of the date of the opinion. It does not address any other aspect of the exchange and does not constitute a recommendation to any holder of Desert common stock as to how to vote at the annual shareholders' meeting. The summary of the opinion of JMP Financial, Inc. set forth in this document is qualified in its entirety by reference to the full text of the opinion. In connection with rendering its opinion, JMP Financial, Inc. among other things: . reviewed audited financial statements and unaudited financial statements of Desert as set forth in Annex D; . discussed the past and current operations and financial condition and the prospects of Desert with senior executives of Desert; . reviewed certain publicly available financial statements and other information of Capitol; . discussed the past and current operations and financial condition and the prospects of Capitol with senior executives of Capitol; . reviewed the reported prices and trading activity for Capitol common stock; . compared the financial performance of Desert and Capitol and the prices and trading activity of Capitol common stock with that of certain other comparable publicly traded companies and their securities; . reviewed the financial terms, to the extent publicly available, of certain comparable transactions; . reviewed the Plan of Share Exchange; and . performed such other analyses and considered such other factors as JMP Financial, Inc. deemed appropriate. In rendering its opinion, JMP Financial, Inc. performed the following analyses: (1) CBCL SHARE MULTIPLES. In order to evaluate the value of CBCL share price, JMP Financial, Inc. reviewed the price-to-book value and price-to-earnings ratios ("Multiples") and performance data of publicly traded stocks of all Michigan banks, all publicly traded U.S. banks, Midwest banks of similar size to CBCL ($1 billion to $5 billion in assets) and all publicly traded banks in the nation in the $1 billion to $5 billion range. No bank or bank holding company was identical to Capitol. JMP Financial, Inc. did, however, note that the Capitol share value Multiples were generally within the range of, or below, the Multiples of comparable size banks and bank holding companies. The summary data for this analysis is presented below and demonstrates that CBCL common stock price sells at Multiples just below the aggregate averages of the various Comparable Groups. Accordingly, there is a presumption that CBCL was fairly priced in the securities market at the time of evaluation. 36 COMPARABLE GROUP COUNT P/BV P/E $1b-$5b Assets in MW 40 182.5 15.1 $1b-$5b Assets Natl 85 189.6 14.9 All Natl 453 184.9 15.6 All MI 16 163.8 17.8 ------ ----- Average 180.1 15.8 CBCL 171.2 14.6 P/BV AND P/E FIGURES COMPARABLE GROUPS ARE THE AVERAGE OF THE AVERAGE AND MEDIAN FOR THE ENTIRE GROUP. (2) CHANGE-OF-CONTROL MULTIPLES. JMP Financial, Inc. reviewed the pricing ratios in those mergers and acquisitions of banks and bank holding companies completed during the past six months for which public information was available. JMP Financial, Inc. found that the premium to book value ratios offered to selling shareholders generally ranged from 71 percent to 431 percent, with both median and average premium to book values falling between 177 percent and 193 percent. All of these transactions involved the transfer of control to the acquiring institution. (3) DESERT SHARE MULTIPLES. JMP Financial, Inc. also consulted a private database to construct several groups of banks and bank holding companies it deemed to be similar to Desert, considering, but not limiting its analysis to, such factors as size, financial condition and performance, geography and market performance. JMP Financial, Inc. compared the price-to-book value and price-to-earnings ratios of these comparative groups to the acquisition Multiples applicable to the proposed Desert exchange. There are no publicly traded banks in Nevada, no publicly traded banks in the entire southwest region with less than $250 million in assets, and only one publicly traded bank in the entire southwest region with assets below $500 million. The price-to-book multiple value to be paid to Desert is greater than that paid to the average or median of the aggregate groups of publicly traded banks throughout the country with assets less than $250 million. The trailing twelve month P/E multiple for Desert, as well as the latest quarterly P/E adjusted for loan loss provisions, are both approximately 30x, compared to 20x for publicly traded banks throughout the country with assets less than $250 million and nearly double that of other Comparative Group averages. COUNT P/BV P/E All National 453 184.9 15.6 All Southwest 71 190.7 14.3 All National < $250m assets 39 132.8 20.2 ------ ----- Average 169.5 16.7 Desert 143.3 30.5 P/BV AND P/E FIGURES COMPARABLE GROUPS ARE THE AVERAGE OF THE AVERAGE AND MEDIAN FOR THE ENTIRE GROUP. (4) ILLIQUDITY. On an individual basis there are substantial differences between the financial and market condition and performance of Desert stock and most other institutions. In the aggregate, the most striking difference between Desert and the various comparative groups was liquidity. All of the publicly traded banks which JMP Financial, Inc. reviewed and which it defined as "small publicly traded banks" were listed on the Nasdaq National Market System. The average weekly trading volume 37 of these institutions was about 2/5 of one percent of their outstanding stock. In other words, these institutions provided minority shareholders with reasonable liquidity. Desert stock, on the other hand, was not publicly traded and was virtually, illiquid. A number of historical studies and valuation practices estimate liquidity discounts in a range from 10 to 30 percent, suggesting that, ceteras paribus, the Multiples paid for Desert should be lower than those of comparable institutions by that margin. (5) NOT AN "ACQUISITION" PREMIUM. The transaction at issue may be characterized, at least casually, as an "acquisition". There is a tendency to compare the acquisition Multiples paid to Desert in this transaction to "acquisition" Multiples for other commercial banks as reported in the media and private database. It is important to note, however, that the "acquisition" Multiples reported in the media are for change-of-control transactions, generally for 100 percent of the acquisition stock. In this case, Desert is now and has been since it commenced business, an affiliate and controlled subsidiary of Capitol. CBCL was acquiring less than 50 percent of the Desert stock. Given that the transaction thus represented purchase of a minority position, direct comparison to change-of-control premiums, is misleading. (6) A MINORITY SALE. In fact, the transaction bears more of a resemblance to the sale of a minority block of stock then to a change-of-control acquisition. The most dramatic difference, as discussed above, between the exchange of minority shares and an acquisition of all of the stock of an entire institution is the "change of control". In the latter transaction, control of the acquired institution changes hands, for which the acquiring institution may pay a significant premium. In the present transaction, JMP Financial, Inc. noted that Capitol has had control of Desert from the outset and would not be expected to pay a "premium" for control, since it already owns control of Desert. Accordingly, and especially in light of the fact that the aggregate block to-be-acquired by CBCL from outsiders is only approximately 43 percent and comprised primarily of numerous very small blocks, JMP Financial, Inc. would expect that the premium over book value to be paid by CBCL would be closer to the price paid in the sale of a minority block of stock in a small publicly traded bank. In other words, one would expect Desert shareholders to be paid Multiples much more similar to those paid for minority shares in Comparative Group institutions then the Multiples paid in change-of-control transactions. (7) JMP Financial, Inc. therefore concluded that the exchange was fair to the shareholders of Desert from a financial point of view. The opinion and presentation of JMP Financial, Inc. to the Desert board was one of many factors taken into consideration by Desert's board in making its decision to approve the exchange. The analyses as described above should not be viewed as determinative of the opinion of the Desert board with respect to the exchange or of whether the Desert board would have been willing to agree to a transaction with a different form or amount of consideration. The Desert board retained JMP Financial, Inc. based upon its qualifications, experience and expertise. JMP Financial, Inc. is a recognized investment banking and advisory firm which has special expertise in the valuation of banks. Under the engagement letter, JMP Financial, Inc. provided financial advisory services and a financial fairness opinion in connection with the exchange, and Desert agreed to pay JMP Financial, Inc. a fee of $9,000 plus out-of-pocket expenses. In addition, Desert has agreed to indemnify JMP Financial, Inc. and its affiliates, against certain liabilities and expenses, including certain liabilities under the federal securities laws. JMP Financial, Inc. has also been engaged to provide financial advisory services in connection with other pending share exchanges with other affiliates of Capitol (see "Recent Developments"). JMP Financial, Inc. has been engaged to provide financial advisory services in connection with previous share exchange transactions with other affiliates of Capitol. In total, JMP Financial, Inc. has issued fairness opinions on 12 transactions of similar structure with affiliates of Capitol. In each opinion, JMP Financial, Inc. opined that those transactions were fair from a financial point of view to the shareholders of those entities. For those engagements, through June 17, 2003, JMP Financial, Inc. was paid a total of $117,500. JMP Financial, Inc. has performed no services directly for Capitol. Further, there are no agreements between Capitol or any of its affiliates and JMP Financial, Inc. regarding future fairness opinions or other financial advisory services. JMP Financial, Inc. is aware of no conflicts of interest that JMP Financial, Inc. has at arriving at a fairness opinion. 38 THE CLOSING EFFECTIVE TIME The exchange will be effective at 5:00 p.m., Mountain Time, on July 31, 2003, and will be closed as soon as possible after the vote at the meeting of Desert's shareholders. If the Plan of Share Exchange is approved, as of the effective date, each outstanding share of Desert common stock will be automatically converted into the right to receive Capitol common stock according to the exchange ratio. SHARES HELD BY CAPITOL Shares of Desert common stock owned by Capitol since Capitol's organization will be unaffected by the exchange. Those shares will not be exchanged for any securities of Capitol or other consideration. PROCEDURES FOR SURRENDER OF CERTIFICATES; FRACTIONAL SHARES As soon as reasonably practicable after the effective date of the exchange, Capitol or Capitol's transfer agent will send you a letter of transmittal. The letter of transmittal will contain instructions with respect to the surrender of your Desert stock certificates. YOU SHOULD NOT RETURN STOCK CERTIFICATES WITH THE ENCLOSED PROXY. Commencing immediately after the effective date of the exchange, upon surrender by you of your stock certificates representing Desert shares in accordance with the instructions in the letter of transmittal, you will be entitled to receive stock certificates representing shares of Capitol common stock into which those Desert shares have been converted, together with a cash payment in lieu of fractional shares, if any. After the effective date, each certificate that previously represented shares of Desert stock will represent only the right to receive the shares of Capitol common stock into which shares of Desert stock were converted in the exchange, and the right to receive cash in lieu of fractional shares of Capitol common stock as described below. Until your Desert certificates are surrendered to Capitol or Capitol's agent, you will not be paid any dividends or distributions on the Capitol common stock into which your Desert shares have been converted with a record date after the exchange, and will not be paid cash in lieu of a fractional share. When those certificates are surrendered, any unpaid dividends and any cash in lieu of fractional shares of Capitol common stock payable as described below will be paid to you without interest. Desert's transfer books will be closed at the effective date of the exchange and no further transfers of shares will be recorded on the transfer books. If a transfer of ownership of Desert stock that is not registered in the records of Desert has occurred, then, so long as the Desert stock certificates are accompanied by all documents required to evidence and effect the transfer, as set forth in the transmittal letter and accompanying instructions, a certificate representing the proper number of shares of Capitol common stock will be issued to a person other than the person in whose name the certificate so surrendered is registered, together with a cash payment in lieu of fractional shares, if any, and payment of dividends or distributions, if any. No fractional share of Capitol common stock will be issued upon surrender of certificates previously representing Desert shares. Instead, Capitol will pay you an amount in cash determined by multiplying the fractional share interest to which you would otherwise be entitled by the Capitol share value used in determining the exchange ratio. 39 FEES AND EXPENSES Whether or not the exchange is completed, Capitol and Desert will each pay its own costs and expenses incurred in connection with the exchange, including the costs of (a) the filing fees in connection with Capitol's Form S-4 registration statement and this proxy statement/prospectus, (b) the filing fees in connection with any filing, permits or approvals obtained under applicable state securities and "blue sky" laws, (c) the expenses in connection with printing and mailing of the Capitol Form S-4 registration statement and this proxy statement/prospectus, and (d) all other expenses. STOCK MARKET LISTING Capitol will promptly prepare and submit to the Nasdaq Stock Market, Inc. a listing application with respect to the maximum number of shares of Capitol common stock issuable to Desert shareholders in the exchange, and Capitol must use reasonable best efforts to obtain approval for the listing of Capitol common shares on the Nasdaq Stock Market, Inc. or the New York Stock Exchange, as the case may be (see "Recent Developments"). AMENDMENT AND TERMINATION Capitol and Desert may amend or terminate the exchange at any time before or after shareholder approval of the Plan of Share Exchange. After shareholder approval of the exchange, it may not be further amended without the approval of the shareholders. [The remainder of this page intentionally left blank] 40 THE SHAREHOLDERS' MEETING DATE, TIME AND PLACE The shareholders' meeting will be held on July 25, 2003 at Desert Community Bank, 3740 South Pecos-McLeod, Las Vegas, Nevada 89121 at 11:00 a.m., local time. MATTERS TO BE CONSIDERED AT THE SHAREHOLDERS' MEETING At the shareholders' meeting, holders of Desert common stock will vote on whether to approve the exchange. See "The Exchange". Shareholders will also vote on the election of directors of Desert. See "Election of Directors". RECORD DATE; STOCK ENTITLED TO VOTE; QUORUM Holders of record of Desert common stock at the close of business on May 15, 2003, the record date for the shareholders' meeting, are entitled to receive notice of and to vote at the shareholders' meeting. At March 31, 2003, 500,000 shares of Desert common stock were issued and outstanding and held by approximately 197 holders of record. Capitol held 255,000 shares of Desert common stock on that date and 245,000 were held by shareholders other than Capitol. A majority of the shares of the Desert common stock (excluding shares held by Capitol) entitled to vote on the record date must be represented in person or by proxy at the shareholders' meeting in order for a quorum to be present for purposes of transacting business at the meeting. In the event that a quorum of common stock is not represented at the shareholders' meeting, it is expected that the meeting will be adjourned or postponed to solicit additional proxies. Holders of record of Desert common stock on the record date are each entitled to one vote per share with respect to approval of the exchange at Desert's shareholders' meeting. Desert does not expect any other matters to come before the shareholders' meeting. However, if any other matters are properly presented at the meeting for consideration, the persons named in the enclosed form of proxy, and acting thereunder, will have discretion to vote or not vote on those matters in accordance with their best judgment, unless authorization to use that discretion is withheld. If a proposal to adjourn the meeting is properly presented, however, the persons named in the enclosed form of proxy will not have discretion to vote in favor of the adjournment proposal any shares which have been voted against the proposal(s) to be presented at the meeting. Desert is not aware of any matters expected to be presented at the meeting other than as described in the notice of the meeting. VOTES REQUIRED Although approval of the exchange by two-thirds of the shares entitled to vote is all that is required by law, Desert and Capitol have agreed that approval of the exchange will require the affirmative vote of a majority of the shares of Desert common stock outstanding on the record date, excluding the 51% of Desert's shares held by Capitol. Abstentions and broker non-votes will have the same effect as a vote against the proposal to approve the exchange. SHARE OWNERSHIP OF MANAGEMENT As of the close of business on March 31, 2003, the directors and executive officers of Desert and their affiliates were entitled to vote approximately 30,350 shares of Desert common stock. These shares represent approximately 6.07% of the outstanding shares of Desert common stock and 12.39% of Desert's shares held by shareholders other than Capitol. The directors and executive officers have agreed to vote their shares of Desert common stock in favor of the exchange. 41 VOTING OF PROXIES SUBMITTING PROXIES You may vote by attending the shareholders' meeting and voting your shares in person at the meeting, or by completing the enclosed proxy card, signing and dating it, and mailing it in the enclosed postage pre-paid envelope. If you sign a written proxy card and return it without instructions, your shares will be voted FOR the exchange at the shareholders' meeting. If your shares are held in the name of a trustee, bank, broker or other record holder, you must either direct the record holder of your shares as to how to vote your shares or obtain a proxy from the record holder to vote at the shareholders' meeting. Shareholders who submit proxy cards should not send in any stock certificates with their proxy cards. A transmittal form with instructions for the surrender of certificates representing shares of Desert stock will be mailed by Capitol to former Desert shareholders shortly after the exchange is effective. REVOKING PROXIES If you are a shareholder of record, you may revoke your proxy at any time prior to the time it is voted at the shareholders' meeting. Proxies may be revoked by written notice, including by telegram or telecopy, to the president of Desert, by a later-dated proxy signed and returned by mail or by attending the shareholders' meeting and voting in person. Attendance at Desert's annual shareholders' meeting will not in and of itself constitute a revocation of a proxy. Any written notice of a revocation of a proxy must be sent so as to be delivered before the taking of the vote at the shareholders' meeting to: Desert Community Bank 3740 South Pecos-McLeod Las Vegas, Nevada 89121 Attn: James W. Howard, President If you require assistance in changing or revoking a proxy, you should contact James Howard at the address above or at phone number (702) 938-0500. GENERAL INFORMATION Brokers who hold shares in street name for customers who are the beneficial owners of those shares are prohibited from giving a proxy to vote on non-routine matters, such as the proposal to be voted on at the shareholders' meeting, unless they receive specific instructions from the customer. These so-called broker non-votes will have the same effect as a vote against the exchange. Abstentions may be specified on all proposals. If you submit a proxy with an abstention, you will be treated as present at the shareholders' meeting for purposes of determining the presence or absence of a quorum for the transaction of all business. An abstention will have the same effect as a vote against the exchange. SOLICITATION OF PROXIES; EXPENSES Capitol or Desert will pay the cost of solicitation of proxies. In addition to solicitation by mail, the directors, officers and employees of Desert may also solicit proxies from shareholders by telephone, telecopy, telegram or in person. 42 COMPARISON OF SHAREHOLDER RIGHTS As a result of the exchange, holders of shares of Desert stock will become holders of shares of Capitol common stock. This comparison of shareholder rights is not intended to be complete and is qualified by reference to the Nevada Revised Statutes, as well as to Desert's articles of incorporation and by-laws and the Michigan Business Corporation Act as well as to Capitol's articles of incorporation and by-laws, (copies of which are on file with the SEC). The following summary compares various rights, privileges and restrictions applicable to shareholders of Desert and Capitol:
----------------------------------------------------------------------- Desert Capitol - ------------------------------------------------------------------------------------------------------------------------- Authorized Capital Stock 1,000,000 25,000,000 - ------------------------------------------------------------------------------------------------------------------------- Preemptive Rights None None - ------------------------------------------------------------------------------------------------------------------------- Quorum Requirements Majority Majority - ------------------------------------------------------------------------------------------------------------------------- Special Meetings of Stockholders Called by CEO, majority of the Called by CEO, majority of the board or shareholders board or shareholders representing 25% of the shares representing 25% of the shares entitled to vote entitled to vote - ------------------------------------------------------------------------------------------------------------------------- Stockholder Action by Written Consent Yes, if unanimous Yes, if unanimous - ------------------------------------------------------------------------------------------------------------------------- Inspection of Voting List of Stockholders Inspector may be appointed by Inspector may be appointed by the Board, by the person the Board, by the person presiding at shareholders' presiding at shareholders' meeting or by the request of a meeting or by the request of a shareholder shareholder - ------------------------------------------------------------------------------------------------------------------------- Classification of the Board of Directors No No - ------------------------------------------------------------------------------------------------------------------------- Election of the Board of Directors Annually by shareholders Annually by shareholders - ------------------------------------------------------------------------------------------------------------------------- Cumulative Voting No No - ------------------------------------------------------------------------------------------------------------------------- Number of Directors 5-25 5-25 - ------------------------------------------------------------------------------------------------------------------------- Removal of Directors By a majority of the By a majority of the outstanding shares of stock outstanding shares of stock - ------------------------------------------------------------------------------------------------------------------------- Vacancies on the Board of Directors May be filled by a majority of May be filled by a majority of the Board of Directors the Board of Directors - ------------------------------------------------------------------------------------------------------------------------- Liability of Directors Eliminated to the fullest Eliminated to the fullest extent provided by law extent provided by law - ------------------------------------------------------------------------------------------------------------------------- Indemnification of Directors, Officers, Employees or Agents Yes Yes - ------------------------------------------------------------------------------------------------------------------------- Amendments to Articles of Incorporation By a majority of the By a majority of the outstanding shares outstanding shares - ------------------------------------------------------------------------------------------------------------------------- Amendments to Bylaws By majority of directors By majority of directors - ------------------------------------------------------------------------------------------------------------------------- Appraisal/Dissenters' Rights Nevada law provides for dissenters' rights No - -------------------------------------------------------------------------------------------------------------------------
43 DESCRIPTION OF THE CAPITAL STOCK OF CAPITOL Capitol's Articles of Incorporation, as amended to date, authorize the issuance of up to 25,000,000 shares of common stock, without par value. Capitol's articles of incorporation do not authorize the issuance of any other class of stock. As of March 31, 2003, 11,737,860 shares of common stock were outstanding. UMB Bank, n.a., serves as transfer agent and registrar for Capitol's common stock. Michigan law allows Capitol's board of directors to issue additional shares of stock up to the total amount of common stock authorized without obtaining the prior approval of the shareholders. Capitol's board of directors has authorized the issuance of the shares of common stock as described in this proxy statement/prospectus. All shares of common stock offered will be, when issued, fully paid and nonassessable. The following summary of the terms and provisions of the common stock does not purport to be complete and is qualified in its entirety by reference to Capitol's articles of incorporation, as amended, a copy of which is on file with the SEC, and to the Michigan Business Corporation Act ("MBCA"). RIGHTS OF COMMON STOCK All voting rights are vested in the holders of shares of common stock. Each share of common stock is entitled to one vote. The shares of common stock do not have cumulative voting rights, which means that a stockholder is entitled to vote each of his or her shares once for each director to be elected at any election of directors and may not cumulate shares in order to cast more than one vote per share for any one director. The holders of the common stock do not have any preemptive, conversion or redemption rights. Holders of common stock are entitled to receive dividends if and when declared by Capitol's board of directors out of funds legally available. Under Michigan law, dividends may be legally declared or paid only if after the distribution the corporation can pay its debts as they come due in the usual course of business and the corporation's total assets equal or exceed the sum of its liabilities. In the event of liquidation, the holders of common stock will be entitled, after payment of amounts due to creditors and senior security holders, to share ratably in the remaining assets. SHARES AVAILABLE FOR ISSUANCE The availability for issuance of a substantial number of shares of common stock at the discretion of the board of directors provides Capitol with the flexibility to take advantage of opportunities to issue additional stock in order to obtain capital, as consideration for possible acquisitions and for other purposes (including, without limitation, the issuance of additional shares through stock splits and stock dividends in appropriate circumstances). There are, at present, no plans, understandings, agreements or arrangements concerning the issuance of additional shares of common stock, except as described in this proxy statement/prospectus and for the shares of common stock reserved for issuance under Capitol's stock option program. Uncommitted authorized but unissued shares of common stock may be issued from time to time to persons and in amounts the board of directors of Capitol may determine and holders of the then outstanding shares of common stock may or may not be given the opportunity to vote thereon, depending upon the nature of those transactions, applicable law and the judgment of the board of directors of Capitol regarding the submission of an issuance to or vote by Capitol's shareholders. As noted, Capitol's shareholders have no preemptive rights to subscribe to newly issued shares. Moreover, it will be possible that additional shares of common stock would be issued for the purpose of making an acquisition by an unwanted suitor of a controlling interest in Capitol more difficult, time consuming or costly or would otherwise discourage an attempt to acquire control of Capitol. Under such circumstances, the availability of authorized and unissued shares of common stock may make it more difficult for shareholders to obtain a premium for their shares. Such authorized and unissued shares could be used to create voting or other impediments or to frustrate a person seeking to obtain control of Capitol by means of a merger, tender offer, proxy contest or other means. Such shares could be privately placed with purchasers who might cooperate with the board of directors of Capitol in opposing such an attempt by a third party to gain control of Capitol. The issuance of new shares of common stock could also be used to dilute ownership of a person or entity seeking to obtain control of Capitol. Although Capitol does not currently contemplate taking that action, shares of Capitol common stock could be issued for the purposes and effects described above, and the board of directors reserves its rights (if consistent with its fiduciary responsibilities) to issue shares for such purposes. 44 CAPITOL'S PREFERRED SECURITIES Capitol has issued debentures to Capitol Trust I, a Delaware business trust subsidiary of Capitol. Capitol Trust I purchased the debentures with the proceeds of preferred securities (which, through June 23, 2003, were traded on the Nasdaq National Stock Market under the symbol "CBCLP"; after June 23, 2003, such securities are listed on NYSE under the symbol "CBCPrA"). Capitol also has additional trust-preferred securities which were private placed. Capitol has guaranteed the preferred securities. The documents governing these securities, including the indenture under which the debentures were issued, restrict Capitol's right to pay a dividend on its common stock under certain circumstances and give the holders of the preferred securities preference on liquidation over the holders of Capitol's common stock. Specifically, Capitol may not declare or pay a cash dividend on its common stock if (a) an event of default has occurred as defined in the indenture, (b) Capitol is in default under its guarantee, or (c) Capitol has exercised its right under the debentures and the preferred securities to extend the interest payment period. In addition, if any of these conditions have occurred and until they are cured, Capitol is restricted from redeeming or purchasing any shares of its common stock except under very limited circumstances. Capitol's obligation under the debentures, the preferred securities and the guarantee approximates $61 million at an average interest rate currently approximating 7% per annum, payable quarterly. ANTI-TAKEOVER PROVISIONS In addition to the utilization of authorized but unissued shares as described above, the MBCA contains other provisions which could be utilized by Capitol to impede efforts to acquire control of Capitol. Those provisions include the following: CONTROL SHARE ACQUISITIONS. The MBCA contains an article intended to protect shareholders and prohibit or discourage certain types of hostile takeover activities. These provisions regulate the acquisition of "control shares" of large public Michigan corporations. The act establishes procedures governing "control share acquisitions." A control share acquisition is defined as an acquisition of shares by an acquirer which, when combined with other shares held by that person or entity, would give the acquirer voting power at or above any of the following thresholds: 20%, 33-1/3% or 50%. Under that act, an acquirer may not vote "control shares" unless the corporation's disinterested shareholders vote to confer voting rights on the control shares. The acquiring person, officers of the target corporation, and directors of the target corporation who are also employees of the corporation are precluded from voting on the issue of whether the control shares shall be accorded voting rights. The act does not affect the voting rights of shares owned by an acquiring person prior to the control share acquisition. The act entitles corporations to redeem control shares from the acquiring person under certain circumstances. In other cases, the act confers dissenters' rights upon all of a corporation's shareholders except the acquiring person. The act applies only to an "issuing public corporation." Capitol falls within the statutory definition of an "issuing public corporation." The act automatically applies to any "issuing public corporation" unless the corporation "opts out" of the statute by so providing in its articles of incorporation or bylaws. Capitol has not "opted out" of the provisions of the act. FAIR PRICE ACT. Certain provisions of the MBCA establish a statutory scheme similar to the supermajority and fair price provisions found in many corporate charters. The act provides that a super majority vote of 90% of the shareholders and no less than two-thirds of the votes of non-interested shareholders must approve a "business combination." The act defines a "business combination" to encompass any merger, consolidation, share exchange, sale of assets, stock issue, liquidation, or reclassification of securities involving an "interested shareholder" or certain "affiliates." An "interested shareholder" is generally any person who owns 10% or more of the outstanding voting shares of the company. An "affiliate" is a person who directly or indirectly controls, is controlled by, or is under common control with a specified person. 45 As of March 17, 2003 Capitol's management beneficially owned (including immediately exercisable stock options and warrants) control of approximately 28.89% of Capitol's outstanding common stock. It is now unknown what percentage will be owned by management upon completion of the exchange. If management's shares are voted as a block, management will be able to prevent the attainment of the required supermajority approval. The supermajority vote required by the act does not apply to business combinations that satisfy certain conditions. These conditions include, among others, that: (i) the purchase price to be paid for the shares of the company is at least equal to the greater of (a) the market value of the shares or (b) the highest per share price paid by the interested shareholder within the preceding two-year period or in the transaction in which the shareholder became an interested shareholder, whichever is higher; and (ii) once a person has become an interested shareholder, the person must not become the beneficial owner of any additional shares of the company except as part of the transaction which resulted in the interested shareholder becoming an interested shareholder or by virtue of proportionate stock splits or stock dividends. The requirements of the act do not apply to business combinations with an interested shareholder that the Board of Directors has approved or exempted from the requirements of the act by resolution at any time prior to the time that the interested shareholder first became an interested shareholder. [The remainder of this page intentionally left blank] 46 WHERE YOU CAN FIND MORE INFORMATION Capitol has filed a registration statement on Form S-4 to register with the SEC the Capitol common stock to be issued to Desert shareholders in the exchange. This proxy statement/prospectus is a part of that registration statement and constitutes a prospectus of Capitol in addition to being a proxy statement of Desert for the annual meeting. As allowed by SEC rules, this proxy statement/prospectus does not contain all the information you can find in the registration statement or the exhibits to the registration statement. In addition, Capitol files reports, proxy statements and other information with the SEC under the Exchange Act. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. You may read and copy this information at the following locations of the SEC: Public Reference Room Chicago Regional Office Citicorp Center 450 Fifth Street, N.W. 500 West Madison Street Room 1024 Suite 1400 Washington, D.C. 20549 Chicago, Illinois 60661-2511 You may also obtain copies of this information by mail from the Public Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. The SEC also maintains an Internet world wide web site that contains reports, proxy statements and other information about issuers, including Capitol, who file electronically with the SEC. The address of that site is www.sec.gov. You can also inspect reports, proxy statements and other information about Capitol at the offices of the National Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006. The SEC allows Capitol to "incorporate by reference" the information it files with the SEC. This permits Capitol to disclose important information to you by referring to these filed documents. Any information referred to in this way is considered part of this proxy statement/prospectus, except for any information superseded by information in, or incorporated by reference in, this proxy statement/prospectus. Capitol incorporates by reference the following documents that have been filed with the SEC: Capitol Bancorp Ltd. SEC Filings (File No. 0-18461) Period --------------------------------------- ------------------------------- o Quarterly Report on Form 10-Q Quarter ended March 31, 2003 o Proxy Statement on Schedule 14A Annual Meeting Held May 8, 2003 o Annual Report on Form 10-K Year ended December 31, 2002 o Registration Statement on Form 8-A Filed April 19, 1990 filed April 19, 1990 47 In addition, all subsequent documents filed with the SEC by Capitol pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this proxy statement/ prospectus shall be deemed to be incorporated by reference into this proxy statement/prospectus and to be a part hereof from the date of filing such documents. Any statement contained in this proxy statement/prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus or another such document shall be deemed to be modified or superseded for purposes of this proxy statement/prospectus to the extent that a statement contained in this proxy statement/prospectus or another such document or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modified or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified superseded, to constitute a part of this proxy statement/prospectus. IF YOU WOULD LIKE TO REQUEST DOCUMENTS, PLEASE DO SO BY JULY 15, 2003 TO RECEIVE THEM BEFORE THE SHAREHOLDERS' MEETING. If you request exhibits to any incorporated documents from us, Capitol will mail them to you by first class mail, or another equally prompt means, within one business day after Capitol receives your request. No one has been authorized to give any information or make any representation about Desert, Capitol or the exchange, that differs from, or adds to, the information in this document or in documents that are publicly filed with the SEC. Therefore, if anyone does give you different or additional information, you should not rely on it. If you are in a jurisdiction where it is unlawful to offer to exchange, or to ask for offers of exchange, the securities offered by this proxy statement/prospectus or to ask for proxies, or if you are a person to whom it is unlawful to direct these activities, then the offer presented by this proxy statement/prospectus does not extend to you. The information contained in this proxy statement/prospectus speaks only as of its date unless the information specifically indicates that another date applies. Information in this document about Capitol has been supplied by Capitol, and information about Desert has been supplied by Desert. LEGAL MATTERS Certain legal matters relating to the validity of the shares of Capitol common stock offered by this proxy statement/prospectus will be passed upon for Capitol by Brian English, Capitol's General Counsel. Certain federal income tax matters relating to the exchange will be passed upon for Capitol by Miller, Canfield, Paddock and Stone, PLC. EXPERTS The consolidated financial statements of Capitol attached and incorporated by reference in this proxy statement/prospectus have been audited by BDO Seidman, LLP, independent certified public accountants, to the extent and for the periods set forth in their report, appearing elsewhere herein and incorporated herein by reference, and is attached and incorporated herein in reliance upon such report given upon the authority of said firm as experts in accounting and auditing. The financial statements of Desert attached to this proxy statement/prospectus as Annex D have been audited by BDO Seidman, LLP, independent certified public accountants, to the extent and for the periods stated in their report, which is attached as part of Annex D, and included in reliance upon such report given upon the authority of said firm as experts in accounting and auditing. 48 ANNEX A PLAN OF SHARE EXCHANGE THIS PLAN OF SHARE EXCHANGE ("Plan") is entered into effective May 16, 2003 between and among CAPITOL BANCORP LIMITED, a Michigan corporation ("Capitol") and the SHAREHOLDERS of DESERT COMMUNITY BANK ("Desert"). R E C I T A L S A. Desert is a Nevada banking corporation which commenced the business of banking August 6, 1999. B. Capitol is the holder of 255,000 shares (51%) of the duly issued and outstanding common stock of Desert ("Desert common stock"). C. Desert common stock is privately held and not traded in any public market. D. Capitol's common stock ("Capitol common stock") is traded on the National Market System of the Nasdaq Stock Market, Inc. E. Desert's Board of Directors has determined that it would be in the best interest of Desert's stockholders to exchange their shares of stock in Desert for shares of Capitol common stock as described in this Plan, and Capitol is willing to make an exchange on those terms. The parties adopt this Plan as of the effective date. 1. THE EXCHANGE. Each shareholder who holds Desert common stock will exchange his, her or their shares of Desert common stock for shares of Capitol common stock according to an exchange ratio determined as follows: DESERT SHARE VALUE. The value of each share of Desert common stock shall be $13.765183. CAPITOL SHARE VALUE. The share value of each share of Capitol common stock shall be $20.916, the average of the closing prices of Capitol's common stock for the month ended March 31, 2003, as reported by the Nasdaq Stock Market, Inc. EXCHANGE RATIO. The exchange ratio will be determined by dividing the Desert Share Value by the Capitol Share Value. Each Desert shareholder (except Capitol) will receive shares of Capitol common stock in exchange for his, her or their Desert common stock calculated by multiplying the number of shares of Desert common stock held by the shareholder by the exchange ratio. Any fractional shares will be paid in cash. 2. APPROVALS NECESSARY. The following approvals will be necessary prior to the Plan becoming effective: a. The Board of Directors of Desert shall have approved and adopted the Plan. b. The Board of Directors of Capitol shall have approved and adopted the Plan. c. A majority of the common stock of Desert (exclusive of the shares held by Capitol) shall have been voted to approve and adopt the Plan at a meeting of the shareholders called for that purpose. d. The Securities and Exchange Commission shall have declared effective the Registration Statement registering the shares of stock of Capitol common stock to be issued in the exchange. 3. FAIRNESS OPINION. The Board of Directors of Desert shall have secured the opinion of a recognized firm of financial advisors that the share exchange is fair from a financial point of view to the shareholders of Desert. 4. TAX OPINION. Miller, Canfield, Paddock and Stone, PLC, shall have issued its legal opinion that the share exchange will constitute a reorganization within the means of Section 368 of the Internal Revenue Code of 1986, as amended, and that the exchange shall not be a taxable event to the shareholders of Desert (except to the extent of cash received in lieu of fractional shares). 5. SURRENDER OF CERTIFICATES. Each shareholder of Desert common stock shall surrender to Capitol his, her or their certificate(s) for shares of Desert common stock. Capitol shall direct its transfer agent, UMB Bank, n.a., to issue certificate(s) of Capitol common stock to be issued in the exchange. Certificate(s) of Capitol common stock shall be issued and registered in the same name as the shares of Desert common stock surrendered in exchange therefor, and shall thereafter be transferable in the same manner as otherwise provided for Capitol common stock. Shareholders of Desert will not be paid dividend payments, if any, paid by Capitol until such time as their certificates have been exchanged. Any such withheld dividend payment will be paid upon exchange of the certificate(s). 6. NEW DESERT CERTIFICATE. Desert shall issue its certificate registering in the name of Capitol all shares of stock now registered to shareholders other than Capitol. ANNEX B JMP FINANCIAL, INC. 753 GRAND MARAIS GROSSE POINTE PARK, MI 48230 TEL/FAX (313) 824-1711 June 25, 2003 Board of Directors Desert Community Bank 3740 South Pecos-McLeod Las Vegas, Nevada 89121 Ladies and Gentlemen: We have examined the proposed Plan of Share Exchange (the "Agreement") dated May 16, 2003, to be entered into between Capitol Bancorp Limited, a Michigan Corporation ("CBCL") and the shareholders (the "Shareholders") of Desert Community Bank ("Desert"), a Nevada Corporation by which CBCL shall acquire from the Shareholders their outstanding shares of Desert, not already owned by CBCL, in exchange for shares of CBCL (the "Exchange"). The terms of the transaction contemplated by the Agreement provide that each share of Desert's common stock, not already owned by CBCL, and issued and outstanding as of July 31, 2003 (the "Effective Date") shall be exchanged, pursuant to the Exchange Ratio specified in the Agreement, into shares of CBCL. You have requested our opinion as to the fairness, from a financial point of view, of the Exchange. JMP Financial, Inc. ("JMP"), as a regular part of its investment banking business, is engaged in the valuation of the securities of commercial and savings banks as well as the holding companies of commercial and savings banks in connection with mergers, acquisition, and divestitures, and for other purposes. In connection with this engagement and rendering this opinion, we reviewed materials deemed necessary and appropriate by us under the circumstances, including: o Audited consolidated financial statements of Desert and CBCL for the years ended December 31, 2002, 2001 and 2000, as available; o Unaudited financial statements of Desert for the period ended March 31, 2003; o Certain unaudited internal financial information concerning the capital ratios of Desert; o Publicly available information concerning CBCL; o Publicly available information with respect to certain other bank holding companies, which we deemed, appropriate, including competitors of CBCL and Desert; o Publicly available information with respect to the nature and terms of certain other transactions which we consider relevant; o The Agreement; o Reviewed certain historical market prices and trading volumes of Desert's and CBCL's common stock to the extent reasonably available. As to Desert, such review was limited to its initial offering of common stock. Page Two Board of Directors Desert Community Bank June 25, 2003 We have assumed and relied upon, without independent verification, the accuracy and completeness of all of the financial statements and other information reviewed by us for the purposes of the opinion expressed herein. We have not made an independent evaluation or appraisal of the assets and liabilities of Desert or CBCL or any of its subsidiaries and we have not been furnished with any such evaluation or appraisal, except as referenced above. Additionally, we are not experts in the evaluation of reserves for loan losses, and we have not reviewed any individual credit files. For purposes of this opinion, we have assumed that CBCL's and Desert's loan loss reserves are adequate in all material respects and that, in the aggregate, other conditions at CBCL and Desert are satisfactory and this opinion is conditioned upon such assumption. We have also assumed that there has been no material change in Desert's or CBCL's assets, financial condition, results of operations, business, or prospects since the date of the last financial statements made available to us for Desert and CBCL, respectively. This opinion is necessarily based on economic, market and other conditions in effect on, and the information made available to us as of, the date hereof. It should be understood that subsequent developments may affect the opinion and that JMP does not have any litigation to update, revise or reaffirm it. The opinion expressed herein is being rendered to the Board of Directors of Desert for its use in evaluation of the proposed transaction, assuming the transaction is consummated upon the terms set forth in the Agreement. Based upon the terms and conditions of the Exchange and the current market value of CBCL's common stock, and based further upon such other considerations as we deem relevant, JMP is, subject to the foregoing, of the opinion on the date hereof, that the consideration to be received by the Shareholders in the Exchange would be fair from a financial point of view if the transaction contemplated by the Agreement is in fact consummated pursuant to the terms thereof. Sincerely, /s/ John Palffy John Palffy President JMP Financial, Inc. ANNEX C OPINION OF MILLER, CANFIELD, PADDOCK AND STONE, PLC June 25, 2003 Capitol Bancorp Limited 200 Washington Square North, 4th Floor Lansing, Michigan 48933 Re: Federal Tax Consequences of Plan of Share Exchange Gentlemen: We have acted as special counsel to Capitol Bancorp Limited ("Capitol") in connection with the Plan of Share Exchange (the "Plan") between Capitol and the shareholders of Desert Community Bank ("Desert") dated as of May 16, 2003. Capitol has filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "1933 Act"), a registration statement on Form S-4 (the "Registration Statement"), with respect to the common shares of Capitol to be issued to holders of shares of common stock of Desert in connection with the Plan. In addition, Capitol has prepared, and we have reviewed, a Proxy Statement/Prospectus which is contained in and made a part of the Registration Statement (the "Proxy Statement"). In rendering our opinion, we have relied upon the facts stated in the Proxy Statement, the representations provided to us by Capitol and Desert, as summarized below, and upon such other documents as we have deemed appropriate, including the information about Capitol and Desert referenced in the Proxy Statement. We have assumed that (i) all parties to the Plan, and to any other documents reviewed by us, have acted, and will act, in accordance with the terms of the Plan, (ii) all facts, information, statements and representations qualified by the knowledge and/or belief of Capitol and/or Desert will be complete and accurate as of the effective date of the Plan as though not so qualified, (iii) the Plan will be consummated pursuant to the terms and conditions set forth in the Plan without the waiver or modification of any such terms and conditions, and (iv) the Plan will be authorized by and will be effected pursuant to applicable state law. We have also assumed that each Desert shareholder holds the shares of Desert common stock to be surrendered under the Plan as a capital asset. This opinion does not address the specific tax consequences that may be relevant to a particular shareholder receiving special treatment under some federal income tax laws, including: (i) banks; (ii) tax-exempt organizations; (iii) insurance companies; (iv) dealers in securities or foreign currencies; (v) Desert shareholders, if any, who received their Desert common stock through the exercise of employee stock options or otherwise as compensation; (vi) Desert shareholders who are not U.S. persons; and (vii) Desert shareholders who hold Desert common stock as part of a hedge, straddle, or conversion transaction. Our opinion also does not address any consequences arising under the laws of any state, locality, or foreign jurisdiction. No rulings have been or will be sought from the Internal Revenue Service regarding any matters relating to the exchange. Capitol Bancorp Limited June 25, 2003 Page 2 Our opinion is predicated on the accuracy of the following representations provided to us by Capitol: 1. The fair market value of the Capitol common stock to be received by the Desert shareholders will be approximately equal to the fair market value of the Desert common stock surrendered under the Plan. 2. Capitol has no plan or intention to liquidate Desert; to merge Desert into another corporation; to cause Desert to sell or otherwise dispose of any of its assets, except for dispositions made in the ordinary course of business; or to sell or otherwise dispose of any of the Desert common stock acquired in the transaction. 3. Capitol has no plan or intention to reacquire any of its common stock issued under the Plan. 4. Capitol, Desert, and the shareholders of Desert will pay their respective expenses, if any, incurred in connection with the Plan. 5. The only consideration that will be received by the shareholders of Desert for their common stock of Desert is voting common stock of Capitol. Further, no liabilities of Desert or any Desert shareholder will be assumed by Capitol, nor will any of the Desert stock acquired by Capitol be subject to any liabilities. 6. Capitol will not own as of immediately before the effective date of the Plan, directly or indirectly, any Desert common stock other than the Desert common stock first acquired by Capitol upon the formation of Desert in August of 1999. 7. Capitol will not make any cash payments, directly or indirectly, to dissenting shareholders of Desert, nor will Capitol, directly or indirectly, reimburse Desert for any payments made by Desert to dissenting shareholders. 8. Any cash payment made by Capitol to Desert shareholders in lieu of fractional shares of Capitol is solely for the purpose of avoiding the expense and inconvenience to Capitol of issuing fractional shares and does not represent separately bargained-for consideration. The total cash consideration that will be paid under the Plan to the Desert shareholders instead of issuing fractional shares of Capitol common stock will not exceed one percent of the total consideration that will be issued under the Plan to the Desert shareholders in exchange for their Desert common stock. The fractional share interests of each Desert shareholder will be aggregated and no Desert shareholder will receive cash in an amount greater to or greater than the value of one full share of Capitol common stock. 9. Capitol is not an investment company as defined in Section 368(a)(2)(F)(iii) or (iv) of the Internal Revenue Code of 1986, as amended (the "Code"). 10. The Plan will be consummated in compliance with the material terms contained in the Registration Statement, none of the material terms and conditions therein have been or will be waived or modified and Capitol has no plan or intention to waive or modify any such material condition. Capitol Bancorp Limited June 25, 2003 Page 3 Our opinion is also predicated on the accuracy of the following representations provided to us by Desert: 1. The Plan will be consummated in compliance with the material terms contained in the Registration Statement, none of the material terms and conditions therein have been or will be waived or modified and Desert has no plan or intention to waive or modify any such material condition. 2. The fair market value of the Capitol common stock to be received by the Desert shareholders will be approximately equal to the fair market value of the Desert common stock surrendered under the Plan. 3. Desert has no plan or intention to issue additional shares of its stock that would result in Capitol losing "control" of Desert within the meaning of Section 368(c) of the Code. 4. Capitol, Desert, and the shareholders of Desert will pay their respective expenses, if any, incurred in connection with the Plan. 5. Desert has only one class of stock authorized, being voting common stock. At the time the Plan is executed, Desert will not have outstanding any warrants, options, convertible securities, or any other type of right pursuant to which any person could acquire any stock in Desert. 6. Following the execution of the Plan, Desert will continue its historic business or use a significant portion of its historic business assets in a business. 7. Desert is not an investment company as defined in Section 368(a)(2)(F)(iii) and (iv) of the Code. 8. Desert will pay any dissenting shareholders the value of their stock out of its own funds. 9. On the effective date of the Plan, the fair market value of the assets of Desert will exceed the sum of its liabilities plus, the liabilities, if any, to which the assets are subject. Based upon and subject to the foregoing, and subject to the qualifications, limitations, representations and assumptions contained in the portion of the Proxy Statement captioned "Material Federal Income Tax Consequences" and incorporated by reference in this opinion, we are of the opinion that: 1) The exchange will qualify as a reorganization within the meaning of Section 368(a)(1)(B) of the Code; 2) No gain or loss will be recognized by the shareholders of Desert who exchange their Desert common stock solely for Capitol common stock (except with respect to cash received instead of fractional shares of Capitol common stock); 3) The aggregate tax basis of the Capitol common stock received by Desert shareholders who exchange all of their Desert common stock for Capitol common stock in the exchange will be the same as the aggregate tax basis of the Desert common stock surrendered in the exchange (reduced by any adjusted basis allocable to a fractional share of Capitol common stock for which cash is received); Capitol Bancorp Limited June 25, 2003 Page 4 4) The holding period of the Capitol common stock received by a former shareholder of Desert will include the holding period of shares of Desert common stock surrendered in the exchange; and 5) A holder of Desert common stock who receives a cash payment instead of a fractional share of Capitol common stock will recognize capital gain or loss to the extent such cash payment is treated pursuant to Section 302 of the Code as made in exchange for the fractional share. Such gain or loss will be equal to the difference between the cash amount received and the portion of the holder's adjusted basis in shares of Desert common stock allocable to the fractional share, and such gain or loss will be long-term capital gain or loss for federal income tax purposes if the holder's holding period in the Desert common stock satisfies the long-term holding period requirement. No opinion is expressed on any matters other than those specifically stated. This opinion is furnished to you for use in connection with the Registration Statement and may not be used for any other purpose without our prior express written consent. We hereby consent to the inclusion of this opinion as an appendix to the Proxy Statement and to the use of our name in that portion of the Proxy Statement captioned "Material Federal Income Tax Consequences." In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the 1933 Act. Very truly yours, /s/ Miller, Canfield, Paddock and Stone, PLC Miller, Canfield, Paddock and Stone, PLC ANNEX D FINANCIAL INFORMATION REGARDING DESERT COMMUNITY BANK Management's discussion and analysis of financial condition and results of operations...................................................... D-2 Condensed interim financial statements as of and for the three months ended March 31, 2003 and 2002 (unaudited).................................. D-5 Audited financial statements as of and for the years ended December 31, 2002, 2001 and 2000........................................... D-11 D-1 Management's Discussion and Analysis of Financial Condition and Results of Operations DESERT COMMUNITY BANK PERIODS ENDED MARCH 31, 2003 AND 2002 AND DECEMBER 31, 2002, 2001 AND 2000 FINANCIAL CONDITION Desert Community Bank is engaged in commercial banking activities from its sole location in Las Vegas, Nevada. From its inception in August 1999, the Bank provides a full array of banking services, principally loans and deposits, to entrepreneurs, professionals and other high net worth individuals in its community. Total assets approximated $59.8 million at March 31, 2003, an increase from $55.2 million at December 31, 2002. The Bank's total assets approximated $56.8 million at year-end 2001. Total portfolio loans approximated $43.0 million at March 31, 2003, a slight decrease from the $43.4 million level at December 31, 2002. At December 31, 2001, total portfolio loans approximated $50.4 million, representing significant portfolio loan growth since the Bank's beginning in 1999. The decrease in loans in 2002 was the result of a shift in focus from loan growth to improving asset quality. Commercial loans approximated 97% of total portfolio loans at March 31, 2003 consistent with the Bank's emphasis on commercial lending activities. The allowance for loan losses at March 31, 2003 approximated $661,000 or 1.54% of total portfolio loans, comparable to the year-end 2002 ratio of 1.56%. The allowance for loan losses is maintained at a level believed adequate by management to absorb potential losses inherent in the loan portfolio at the balance sheet date. Management's determination of the adequacy of the allowance is based on evaluation of the portfolio (including volume, amount and composition, potential impairment of individual loans and concentrations of credit), past loss experience, current economic conditions, loan commitments outstanding and other factors. Net loan charge-offs totaled $15,000 for the three-month 2003 period (none in the corresponding 2002 period). Net charge-offs totaled $482,000 and $98,000 for the years ended December 31, 2002 and 2001, respectively ($50,000 in 2000 and none in 1999). The Bank's growth has been funded primarily by deposits, most of which are interest-bearing. Total deposits approximated $54.5 million at March 31, 2003, an increase of approximately $4.6 million from the $49.9 million level at December 31, 2002. Deposits decreased in 2002 from the $52.0 million level at the beginning of the year. The Bank seeks to obtain noninterest-bearing deposits as a means to reduce its cost of funds. Noninterest-bearing deposits approximated $8.1 million at March 31, 2003 or about 14.8% of total deposits, a decrease of approximately $2.1 million from December 31, 2002. Noninterest-bearing deposits fluctuate significantly from day to day, depending upon customer account activity. Stockholders' equity approximated $5.3 million at March 31, 2003 or approximately 8.8% of total assets. Capital adequacy is discussed elsewhere in this narrative. RESULTS OF OPERATIONS The Bank's net income for the three months ended March 31, 2003 approximated $121,000, compared with $104,000 in the corresponding 2002 period. Net income for the year ended December 31, 2002 and 2001 was $209,000 and $35,000, respectively. 2000 represented the Bank's first full calendar year of operations, with a net loss of $180,000, compared to a net loss of $358,000 in the 1999 period of about five months. D-2 The principal source of operating revenues is interest income. Total interest income for the three months ended March 31, 2003 approximated $905,000, compared with $1.1 million in the three-month 2002 period. The interim 2003 decrease in interest income relates primarily to lower interest rates and smaller loan portfolio. For the year ended December 31, 2002, total interest income approximated $4.0 million, compared with $4.3 million in 2001 and $2.9 million in 2000. Interest expense on deposits has also changed significantly during these periods, consistent with changes in interest rates and levels of interest-bearing deposits. Total interest expense approximated $259,000 for the three months ended March 31, 2003, compared with $470,000 for the three-month 2002 period. For the year ended December 31, 2002, total interest expense approximated $1.5 million, compared with $1.9 million in 2001 and $1.3 million in 2000. The decreases in interest expense for the interim 2003 period and for the year 2002 were the result of substantially lower interest rates on deposits. The interest rates on deposits have continued to decrease since 2001 while the level of interest-bearing deposits has remained relatively stable. Net interest income approximated $645,000 for the three months ended March 31, 2003, compared with $614,000 for the 2002 corresponding period. Net interest income for the year ended December 31, 2002 approximated $2.5 million, compared with $2.4 million in 2001 and $1.6 million in 2000. Provisions for loan losses were minimal for the three months ended March 31, 2003 (none in the corresponding 2002 period). Provisions for loan losses for the full-year were significant ($351,000 for the year ended December 31, 2002, $463,000 in 2001 and $337,000 in 2000). The low provision for loan losses in the interim 2003 and 2002 periods were the result of both minimal loan growth and loan losses. The higher provision for the year 2002 resulted from changes in asset quality while the provisions in 2001 and 2000 were related primarily to loan growth. The provision for loan losses is based upon amounts necessary to maintain the allowance for loan losses based on management's analysis of allowance requirements discussed previously. Total noninterest income approximated $59,000 for the three months ended March 31, 2003, compared with $68,000 for the corresponding 2002 period. Noninterest income for the year ended December 31, 2002 approximated $135,000, considerably more than the $77,000 in 2001 and $29,000 in 2000. Total noninterest expense approximated $520,000 for the three months ended March 31, 2003, compared with $522,000 for the corresponding 2002 period. For the year ended December 31, 2002, total noninterest expense approximated $2.0 million, compared with $2.0 million in 2001 and $1.5 million in 2000. The principal component of noninterest expense is salaries and employee benefits which had increased during the Bank's early periods based upon the increased staffing required to serve customers and to facilitate growth. Salaries and benefits expense has remained relatively stable since 2001. LIQUIDITY AND CAPITAL RESOURCES The principal funding source for asset growth and loan origination activities is deposits. Changes in deposits and loans were previously discussed in this narrative. Since the inception of the Bank, most of the deposit growth has been deployed into commercial loans, consistent with the Bank's emphasis on commercial lending activities. Cash and cash equivalents approximated $12.2 million at March 31, 2003, compared with $7.9 million at December 31, 2002 and $6.0 million at December 31, 2001. As liquidity levels vary continuously based upon customer activities, amounts of cash and cash equivalents can vary widely at any given point in time. Management believes the Bank's liquidity position at March 31, 2003 is adequate to fund loan demand and to meet depositor needs. In addition to cash and cash equivalents, a source of long-term liquidity is the Bank's portfolio of marketable investment securities. Liquidity requirements have not historically necessitated the sale of investments in order to meet liquidity needs. The Bank also has not engaged in active trading of its investments and has no intention of doing so in the foreseeable future. At March 31, 2003, the Bank had approximately $3.6 million of investment securities classified as available for sale which can be utilized to meet various liquidity needs as they arise. D-3 All banks are subject to a complex series of capital ratio requirements which are imposed by state and federal banking agencies. In the case of Desert Community Bank, as a young bank, it is subject to a more restrictive requirement than is applicable to most banks inasmuch as the Bank must maintain a capital-to-asset ratio of not less than 8% for its first three years of operation. In the opinion of management, the Bank meets or exceeds regulatory capital requirements to which it is subject. IMPACT OF NEW ACCOUNTING STANDARDS There are certain new accounting standards either becoming effective or being issued in 2003. They are discussed in Note B of the accompanying interim financial statements. (The remainder of this page intentionally left blank) D-4 DESERT COMMUNITY BANK ------ CONDENSED INTERIM FINANCIAL STATEMENTS THREE MONTHS ENDED MARCH 31, 2003 AND 2002 D-5 BALANCE SHEETS DESERT COMMUNITY BANK
March 31 December 31 2003 2002 ------------ ------------ (unaudited) ASSETS Cash and due from banks $ 1,806,111 $ 1,439,852 Money market and interest-bearing deposits with banks 1,761,301 2,064,146 Federal funds sold 8,600,000 4,400,000 ------------ ------------ Cash and cash equivalents 12,167,412 7,903,998 Loans held for resale 687,250 Investment securities Available for sale, carried at market value 3,611,449 3,584,589 Held for long-term investment, carried at amortized cost which approximates market value 47,300 47,300 ------------ ------------ Total investment securities 3,658,749 3,631,889 Portfolio loans Commercial 41,930,305 42,347,370 Real estate mortgage 327,999 279,817 Installment 778,845 724,154 ------------ ------------ Total portfolio loans 43,037,149 43,351,341 Less allowance for loan losses (661,000) (675,000) ------------ ------------ Net portfolio loans 42,376,149 42,676,341 Premises and equipment 277,866 292,762 Accrued interest income 255,194 221,909 Other assets 389,385 443,294 ------------ ------------ TOTAL ASSETS $ 59,812,005 $ 55,170,193 ============ ============ LIABILITIES AND STOCKHOLDERS' EQUITY Deposits: Noninterest-bearing $ 8,073,025 $ 10,157,168 Interest-bearing 46,390,118 39,777,521 ------------ ------------ Total deposits 54,463,143 49,934,689 Accrued interest on deposits and other liabilities 95,119 99,353 ------------ ------------ Total liabilities 54,558,262 50,034,042 STOCKHOLDERS' EQUITY: Common stock, par value $6.00 per share, 1,000,000 shares authorized; 500,000 shares issued and outstanding 3,000,000 3,000,000 Surplus 2,425,000 2,425,000 Retained-earnings deficit (173,971) (294,758) Market value adjustment (net of tax effect) for investment securities available for sale (accumulated other comprehensive income) 2,714 5,909 ------------ ------------ Total stockholders' equity 5,253,743 5,136,151 ------------ ------------ TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 59,812,005 $ 55,170,193 ============ ============
See notes to interim financial statements D-6 STATEMENTS OF OPERATIONS (UNAUDITED) DESERT COMMUNITY BANK
Three Months Ended March 31 ----------------------- 2003 2002 ---------- ---------- Interest income: Portfolio loans (including fees) $ 859,210 $1,047,792 Taxable investment securities 16,805 9,727 Federal funds sold 13,347 10,852 Other 15,448 15,172 ---------- ---------- Total interest income 904,810 1,083,543 Interest expense on deposits 258,816 469,990 ---------- ---------- Net interest income 645,994 613,553 Provision for loan losses 919 ---------- ---------- Net interest income after provision for loan losses 645,075 613,553 Noninterest income: Service charges on deposit accounts 18,249 26,712 Fees from origination of nonportfolio residential mortgage loans 35,119 Other 5,376 41,214 ---------- ---------- Total noninterest income 58,744 67,926 Noninterest expense: Salaries and employee benefits 242,561 230,693 Occupancy 44,997 42,354 Other 232,474 249,070 ---------- ---------- Total noninterest expense 520,032 522,117 Income before federal income taxes 183,787 159,362 Federal income taxes 63,000 55,000 ---------- ---------- NET INCOME $ 120,787 $ 104,362 ========== ========== NET INCOME PER SHARE (basic and diluted) $ 0.24 $ 0.21 ========== ==========
See notes to interim financial statements. D-7 STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (UNAUDITED) DESERT COMMUNITY BANK
Accumulated Retained- Other Common Earnings Comprehensive Stock Surplus (Deficit) Income Total ----------- ----------- ----------- ----------- ----------- THREE MONTHS ENDED MARCH 31, 2002 Balances at January 1, 2002 $ 3,000,000 $ 2,225,000 $ (503,556) $ (5,225) $ 4,716,219 Supplemental capital infusion from majority stockholder 200,000 200,000 Components of comprehensive income: Net income for the 2002 period 104,362 104,362 Market value adjustment for investment securities available for sale (net of tax effect) $ (5,804) (5,804) ----------- Comprehensive income for the period 98,558 ----------- ----------- ----------- ----------- ----------- BALANCES AT MARCH 31, 2002 $ 3,000,000 $ 2,425,000 $ (399,194) $ (11,029) $ 5,014,777 =========== =========== =========== =========== =========== THREE MONTHS ENDED MARCH 31, 2003 Balances at January 1, 2003 $ 3,000,000 $ 2,425,000 $ (294,758) $ 5,909 $ 5,136,151 Components of comprehensive income: Net income for 2002 120,787 120,787 Market value adjustment for investment securities available for sale (net of tax effect) (3,195) (3,195) ----------- Comprehensive income for 2002 117,592 ----------- ----------- ----------- ----------- ----------- BALANCES AT MARCH 31, 2003 $ 3,000,000 $ 2,425,000 $ (173,971) $ 2,714 $ 5,253,743 =========== =========== =========== =========== ===========
See notes to financial statements. D-8 STATEMENTS OF CASH FLOWS (UNAUDITED) DESERT COMMUNITY BANK
Three Months Ended March 31 ---------------------------- 2003 2002 ------------ ------------ OPERATING ACTIVITIES Net income $ 120,787 $ 104,362 Adjustments to reconcile net income to net cash provided (used) by operating activities: Provision for loan losses 919 Depreciation of premises and equipment 18,272 27,538 Net amortization of investment security premiums 12,751 234 Originations and purchases of loans held for resale (2,354,120) Proceeds from sales of loans held for resale 1,666,870 Decrease in accrued interest income and other assets 22,270 36,983 Decrease in accrued interest on deposits and other liabilities (4,234) (9,529) ------------ ------------ NET CASH PROVIDED (USED) BY OPERATING ACTIVITIES (516,485) 159,588 INVESTING ACTIVITIES Proceeds from sales of investment securities available for sale 471,711 Proceeds from calls and maturities of securities available for sale 2,500,000 910 Purchases of investment securities available for sale (3,016,163) (2,012,362) Net decrease (increase) in portfolio loans 299,273 (189,581) Purchases of premises and equipment (3,376) (1,549) ------------ ------------ NET CASH PROVIDED (USED) BY INVESTING ACTIVITIES 251,445 (2,202,582) FINANCING ACTIVITIES Net increase (decrease) in demand deposits, NOW accounts and savings accounts 3,021,486 (320,443) Net increase in certificates of deposit 1,506,968 3,576,093 Supplemental capital infusions from majority stockholder 200,000 ------------ ------------ NET CASH PROVIDED BY FINANCING ACTIVITIES 4,528,454 3,455,650 ------------ ------------ INCREASE IN CASH AND CASH EQUIVALENTS 4,263,414 1,412,656 Cash and cash equivalents at beginning of period 7,903,998 6,043,709 ------------ ------------ CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 12,167,412 $ 7,456,365 ============ ============
See notes to interim financial statements D-9 NOTES TO INTERIM FINANCIAL STATEMENTS (UNAUDITED) DESERT COMMUNITY BANK NOTE A--BASIS OF PRESENTATION The accompanying condensed financial statements of Desert Community Bank have been prepared in accordance with accounting principles generally accepted in the United States of America for interim financial information. Accordingly, they do not include all information and footnotes necessary for a fair presentation of financial position, results of operations and cash flows in conformity with accounting principles generally accepted in the United States of America. The statements do, however, include all adjustments of a normal recurring nature which Desert considers necessary for a fair presentation of the interim periods. The results of operations for the three-month period ended March 31, 2003 are not necessarily indicative of the results to be expected for the year ending December 31, 2003. Statement of Financial Accounting Standards No. 123, ACCOUNTING FOR STOCK-BASED COMPENSATION, establishes an alternative fair value method of accounting for stock options whereby compensation expense would be recognized based on the computed fair value of the options on the grant date. By not electing this alternative, certain pro forma disclosures of the expense recognition provisions of Statement No. 123 are required, which are as follows: 2003 2002 -------- -------- Net income: As reported $120,787 $104,362 Less pro forma compensation expense regarding fair value of stock option awards, net of income tax effect (14,897) (14,897) -------- -------- Pro forma 105,890 89,465 Net income per share: Basic: As reported 0.24 0.21 Pro forma 0.21 0.18 Diluted: As reported 0.24 0.21 Pro forma $ 0.21 $ 0.18 NOTE B--NEW ACCOUNTING STANDARDS The Financial Accounting Standards Board (FASB) recently issued Statement No. 149, AMENDMENT OF STATEMENT NO. 133 ON DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES. This new standard, which clarifies the accounting for derivative instruments including certain derivative instruments embedded in other contracts, hedging activities under Statement No. 133 and aligns current accounting with other FASB projects, intends to create more consistent accounting treatment for derivative instruments and hedging activities. It is effective for contracts entered into after June 30, 2003 and is not expected to have a material impact on the Bank's financial position or results of operation, upon implementation. A variety of proposed or otherwise potential accounting standards are currently under study by standard-setting organizations and various regulatory agencies. Because of the tentative and preliminary nature of these proposed standards, management has not determined whether implementation of such proposed standards would be material to the Bank's financial statements. D-10 DESERT COMMUNITY BANK ------ FINANCIAL STATEMENTS YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000 D-11 REPORT OF INDEPENDENT AUDITORS Board of Directors and Stockholders Desert Community Bank We have audited the accompanying balance sheets of Desert Community Bank as of December 31, 2002 and 2001, and the related statements of operations, changes in stockholders' equity and cash flows for the years ended December 31, 2002, 2001 and 2000. These financial statements are the responsibility of the Bank's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Desert Community Bank as of December 31, 2002 and 2001, and the results of its operations and its cash flows for the years ended December 31, 2002, 2001 and 2000, in conformity with accounting principles generally accepted in the United States of America. /s/ BDO Seidman, LLP Los Angeles, California January 31, 2003 D-12 BALANCE SHEETS DESERT COMMUNITY BANK
December 31 ---------------------------- 2002 2001 ------------ ------------ ASSETS Cash and due from banks $ 1,439,852 $ 847,278 Money market and interest-bearing deposits 2,064,146 596,431 Federal funds sold 4,400,000 4,600,000 ------------ ------------ Cash and cash equivalents 7,903,998 6,043,709 Investment securities--Note B: Available for sale, carried at market value 3,584,589 300,648 Held for long-term investment, carried at amortized cost which approximates market value 47,300 41,960 ------------ ------------ Total investment securities 3,631,889 342,608 Portfolio loans--Note C: Commercial 42,347,370 49,531,248 Real estate mortgage 279,817 Installment 724,154 829,906 ------------ ------------ Total portfolio loans 43,351,341 50,361,154 Less allowance for loan losses (675,000) (806,000) ------------ ------------ Net portfolio loans 42,676,341 49,555,154 Premises and equipment--Note E 292,762 332,767 Accrued interest income 221,909 255,178 Other assets 443,294 314,920 ------------ ------------ TOTAL ASSETS $ 55,170,193 $ 56,844,336 ============ ============ LIABILITIES AND STOCKHOLDERS' EQUITY Deposits: Noninterest-bearing $ 10,157,168 $ 6,113,117 Interest-bearing--Note F 39,777,521 45,889,691 ------------ ------------ Total deposits 49,934,689 52,002,808 Accrued interest on deposits and other liabilities 99,353 125,309 ------------ ------------ Total liabilities 50,034,042 52,128,117 STOCKHOLDERS' EQUITY--Notes G and L: Common stock, par value $6.00 per share, 1,000,000 shares authorized; 500,000 shares issued and outstanding 3,000,000 3,000,000 Surplus 2,425,000 2,225,000 Retained-earnings deficit (294,758) (503,556) Market value adjustment (net of tax) for investment securities available for sale (accumulated other comprehensive income) 5,909 (5,225) ------------ ------------ Total stockholders' equity 5,136,151 4,716,219 ------------ ------------ TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 55,170,193 $ 56,844,336 ============ ============
See notes to financial statements. D-13 STATEMENTS OF OPERATIONS DESERT COMMUNITY BANK
Year Ended December 31 --------------------------------------- 2002 2001 2000 ----------- ----------- ----------- Interest income: Portfolio loans (including fees) $ 3,799,901 $ 4,070,694 $ 2,455,396 Taxable investment securities 105,184 2,510 83,191 Federal funds sold 53,791 103,640 161,316 Other 89,266 86,701 176,425 ----------- ----------- ----------- Total interest income 4,048,142 4,263,545 2,876,328 Interest expense: Deposits 1,509,666 1,853,160 1,293,412 Other 137 ----------- ----------- ----------- Total interest expense 1,509,666 1,853,297 1,293,412 ----------- ----------- ----------- Net interest income 2,538,476 2,410,248 1,582,916 Provision for loan losses--Note C 351,078 462,525 337,000 ----------- ----------- ----------- Net interest income after provision for loan losses 2,187,398 1,947,723 1,245,916 Noninterest income: Service charges on deposit accounts 80,291 68,518 24,238 Other 55,049 8,421 4,718 ----------- ----------- ----------- Total noninterest income 135,340 76,939 28,956 Noninterest expense: Salaries and employee benefits 912,412 954,237 764,770 Occupancy 177,788 159,723 136,955 Equipment rent, depreciation and maintenance 124,601 136,468 119,825 Other 787,139 710,650 525,788 ----------- ----------- ----------- Total noninterest expense 2,001,940 1,961,078 1,547,338 ----------- ----------- ----------- Income (loss) before federal income taxes (benefit) 320,798 63,584 (272,466) Federal income taxes (benefit)--Note I 112,000 29,000 (92,000) ----------- ----------- ----------- NET INCOME (LOSS) $ 208,798 $ 34,584 $ (180,466) =========== =========== =========== NET INCOME (LOSS) PER SHARE (basic and diluted) $ 0.42 $ 0.07 $ (0.36) =========== =========== ===========
See notes to financial statements. D-14 STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY DESERT COMMUNITY BANK
Accumulated Retained- Other Common Earnings Comprehensive Stock Surplus Deficit Income Total ----------- ----------- ----------- ----------- ----------- Balances at January 1, 2000 $ 3,000,000 $ 2,000,000 $ (357,674) $ 4,642,326 Net loss for 2000 (180,466) (180,466) ----------- ----------- ----------- ----------- BALANCES AT DECEMBER 31, 2000 3,000,000 2,000,000 (538,140) 4,461,860 Supplemental capital infusion from majority stockholder 225,000 225,000 Components of comprehensive income: Net income for 2001 34,584 34,584 Market value adjustment (net of tax) for investment securities available for sale $ (5,225) (5,225) ----------- Comprehensive income for 2001 29,359 ----------- ----------- ----------- ----------- ----------- BALANCES AT DECEMBER 31, 2001 3,000,000 2,225,000 (503,556) (5,225) 4,716,219 Supplemental capital infusion from majority stockholder 200,000 200,000 Components of comprehensive income: Net income for 2002 208,798 208,798 Market value adjustment (net of tax) for investment securities available for sale 11,134 11,134 ----------- Comprehensive income for 2002 219,932 ----------- ----------- ----------- ----------- ----------- BALANCES AT DECEMBER 31, 2002 $ 3,000,000 $ 2,425,000 $ (294,758) $ 5,909 $ 5,136,151 =========== =========== =========== =========== ===========
See notes to financial statements. D-15 STATEMENTS OF CASH FLOWS DESERT COMMUNITY BANK
Year Ended December 31 -------------------------------------------- 2002 2001 2000 ------------ ------------ ------------ OPERATING ACTIVITIES Net income (loss) $ 208,798 $ 34,584 $ (180,466) Adjustments to reconcile net income (loss) to net cash provided by operating activities: Provision for loan losses 351,078 462,525 337,000 Depreciation of premises and equipment 98,160 108,592 102,244 Net accretion of investment security discounts (9,074) (8,405) Loss on sale of premises and equipment 4,043 Deferred income taxes 112,000 29,000 (92,000) Increase in accrued interest income and other assets (212,841) (94,091) (151,513) Increase (decrease) in accrued interest on deposits and other liabilities (25,956) 32,630 61,030 ------------ ------------ ------------ NET CASH PROVIDED BY OPERATING ACTIVITIES 522,165 568,878 76,295 INVESTING ACTIVITIES Proceeds from sales of investment securities available for sale 1,450,000 Proceeds from calls and maturities of investment securities available for sale 8,105,622 11,000,000 Purchases of investment securities available for sale (12,813,619) (300,159) (11,000,000) Purchases of investment securities held for long-term investment (5,340) (41,960) Net decrease (increase) in portfolio loans 6,527,735 (21,032,893) (17,987,779) Proceeds from sales of premises and equipment 8,106 Purchases of premises and equipment (58,155) (31,652) (37,606) ------------ ------------ ------------ NET CASH PROVIDED (USED) BY INVESTING ACTIVITIES 3,206,243 (21,398,558) (18,025,385) FINANCING ACTIVITIES Net increase in demand deposits, NOW accounts and savings accounts 6,660,967 12,674,832 6,270,091 Net increase (decrease) in certificates of deposit (8,729,086) 8,371,875 11,520,792 ------------ ------------ ------------ Supplemental capital infusions from majority stockholder 200,000 225,000 ------------ ------------ ------------ NET CASH PROVIDED (USED) BY FINANCING ACTIVITIES (1,868,119) 21,271,707 17,790,883 ------------ ------------ ------------ INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 1,860,289 442,027 (158,207) Cash and cash equivalents at beginning of year 6,043,709 5,601,682 5,759,889 ------------ ------------ ------------ CASH AND CASH EQUIVALENTS AT END OF YEAR $ 7,903,998 $ 6,043,709 $ 5,601,682 ============ ============ ============
See notes to financial statements D-16 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE A--SIGNIFICANT ACCOUNTING POLICIES NATURE OF OPERATIONS AND BASIS OF PRESENTATION: Desert Community Bank (the "Bank") is a full-service commercial bank located in Las Vegas, Nevada. The Bank commenced operations in August 1999. The Bank is 51% owned by Capitol Bancorp Limited, a bank development company headquartered in Phoenix, Arizona and Lansing, Michigan. The Bank provides a full range of banking services to individuals, businesses and other customers located in its community. A variety of deposit products are offered, including checking, savings, money market, individual retirement accounts and certificates of deposit. The principal market for the Bank's financial services is the community in which it is located and the areas immediately surrounding that community. ESTIMATES: The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make certain estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. CASH AND CASH EQUIVALENTS: Cash and cash equivalents include cash on hand, amounts due from banks (interest-bearing and noninterest-bearing), money-market funds and federal funds sold. Generally, federal funds transactions are entered into for a one-day period. INVESTMENT SECURITIES: Investment securities available for sale are carried at market value with unrealized gains and losses reported as a separate component of stockholders' equity, net of tax effect (accumulated other comprehensive income). All other investment securities are classified as held for long-term investment and are carried at amortized cost, which approximates market value. Investments are classified at the date of purchase based on management's analysis of liquidity and other factors. The adjusted cost of specific securities sold is used to compute realized gains or losses. Premiums and discounts are recognized in interest income using the interest method over the period to maturity. LOANS, CREDIT RISK AND ALLOWANCE FOR LOAN LOSSES: Portfolio loans are carried at their principal balance based on management's intent and ability to hold such loans for the foreseeable future until maturity or repayment. D-17 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE A--SIGNIFICANT ACCOUNTING POLICIES--CONTINUED Credit risk arises from making loans and loan commitments in the ordinary course of business. Consistent with the Bank's emphasis on business lending, there are concentrations of credit in loans secured by commercial real estate, equipment and other business assets. The maximum potential credit risk to the Bank, without regard to underlying collateral and guarantees, is the total of loans and loan commitments outstanding. Management reduces the Bank's exposure to losses from credit risk by requiring collateral and/or guarantees for loans granted and by monitoring concentrations of credit, in addition to recording provisions for loan losses and maintaining an allowance for loan losses. The allowance for loan losses is maintained at a level believed adequate by management to absorb estimated losses inherent in the portfolio at the balance sheet date. Management's determination of the adequacy of the allowance is based on evaluation of the portfolio (including potential impairment of individual loans and concentrations of credit), past loss experience, current economic conditions, volume, amount and composition of the loan portfolio, loan commitments outstanding and other factors. The allowance is increased by provisions charged to operations and reduced by net charge-offs. INTEREST AND FEES ON LOANS: Interest income on loans is recognized based upon the principal balance of loans outstanding. Fees from origination of portfolio loans generally approximate the direct costs of successful loan originations. The accrual of interest is generally discontinued when a loan becomes 90 days past due as to interest. When interest accruals are discontinued, interest previously accrued (but unpaid) is reversed. Management may elect to continue the accrual of interest when the estimated net realizable value of collateral is sufficient to cover the principal balance and accrued interest and the loan is in process of collection. PREMISES AND EQUIPMENT: Premises and equipment are stated on the basis of cost. Depreciation is computed principally by the straight-line method based upon estimated useful lives of the respective assets. Leasehold improvements are generally depreciated over the respective lease term. OTHER REAL ESTATE: Other real estate (included as a component of other assets; $246,000 at December 31, 2002; none at December 31, 2001) comprises properties acquired through a foreclosure proceeding or acceptance of a deed in lieu of foreclosure. These properties held for sale are carried at the lower of cost or estimated fair value (net of estimated selling costs) at the date acquired and are periodically reviewed for subsequent impairment. D-18 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE A--SIGNIFICANT ACCOUNTING POLICIES--CONTINUED STOCK-BASED COMPENSATION: No stock-based compensation expense is recorded upon granting of stock options because such stock options are accounted for under the provisions of Accounting Principles Board (APB) Opinion 25 (and related interpretations) and are granted at an exercise price equal to the market price of common stock at grant date. Statement of Financial Accounting Standards No. 123, ACCOUNTING FOR STOCK-BASED COMPENSATION, establishes an alternative fair value method of accounting for stock options whereby compensation expense would be recognized based on the computed fair value of the options on the grant date. By not electing this alternative, certain pro forma disclosures of the expense recognition provisions of Statement No. 123 are required, which are as follows: 2002 2001 2000 -------- -------- --------- Fair value assumptions: Risk-free interest rate 4.5% 5.0% 7.0% Dividend yield -- -- -- Stock price volatility .46 .39 .83 Expected option life 6 years 7 years -- Aggregate estimated fair value of options granted $ 10,000 $ 5,000 -- Net income (loss): As reported 208,798 34,584 $(180,466) Less pro forma compensation expense regarding fair value of stock option awards, net of income tax effect (59,589) (58,258) (57,597) -------- -------- --------- Pro forma 149,209 (23,674) (238,063) Net income (loss) per share: Basic: As reported 0.42 0.07 (0.36) Pro forma 0.30 (0.05) (0.48) Diluted: As reported 0.42 0.07 (0.36) Pro forma $ 0.30 $ (0.05) $ (0.48) TRUST ASSETS AND RELATED INCOME: Customer property, other than funds on deposit, held in a fiduciary or agency capacity by the Bank is not included in the balance sheet because it is not an asset of the Bank. Trust fee income is recorded on the accrual method. FEDERAL INCOME TAXES: Deferred income taxes are recognized for the tax consequences of temporary differences by applying enacted tax rates applicable to future years to differences between the financial statement carrying amounts and the tax bases of existing assets and liabilities. The effect on deferred income taxes of a change in tax laws or rates is recognized in income in the period that includes the enactment date. D-19 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE A--SIGNIFICANT ACCOUNTING POLICIES--CONTINUED NET INCOME (LOSS) PER SHARE: Net income (loss) per share is based on the weighted average number of common shares outstanding (500,000 shares). Diluted net income (loss) per share includes the dilutive effect of stock options (see Note G). COMPREHENSIVE INCOME: Comprehensive income is the sum of net income (loss) and certain other items which are charged or credited to stockholders' equity. For the periods presented, the Bank's only element of comprehensive income other than net income (loss) was the net change in the market value adjustment for investment securities available for sale. Accordingly, the elements and total of comprehensive income are shown within the statement of changes in stockholders' equity presented herein. NEW ACCOUNTING STANDARDS: Financial Accounting Standards Board (FASB) Statement No. 142, GOODWILL AND OTHER INTANGIBLE ASSETS, requires that goodwill no longer be amortized and charged against earnings, but instead be reviewed for impairment. Amortization of goodwill ceased upon adoption of the Statement. This new standard requires that goodwill be reviewed periodically for impairment and, accordingly, impairment adjustments of goodwill be charged against earnings, when determined. As of December 31, 2002, the Bank had no recorded goodwill. The FASB has also recently issued Statements No. 143 (ACCOUNTING FOR ASSET RETIREMENT OBLIGATIONS), No. 144 (ACCOUNTING FOR THE IMPAIRMENT OR DISPOSAL OF LONG-LIVED ASSETS), No. 145 (which updates, clarifies and simplifies certain existing accounting pronouncements--rescission of Statements No. 4, 44 and 64, amendment of Statement No. 13 and technical corrections) and No. 146 (ACCOUNTING FOR COSTS ASSOCIATED WITH EXIT OR DISPOSAL ACTIVITIES). These new standards have varying effective dates in 2002 and 2003 and, based on management's analysis, are not expected to have a material effect on the Bank's financial statements, upon implementation. Statement No. 147, ACQUISITIONS OF CERTAIN FINANCIAL INSTITUTIONS, amends prior standards relating to some acquisitions of financial institutions, requiring such transactions to be accounted for in accordance with Statements No. 141 and 142. It had no material effect on the Bank's financial statements, upon implementation. Statement No. 148, ACCOUNTING FOR STOCK-BASED COMPENSATION - TRANSITION AND DISCLOSURE, provides alternative methods of transition for a voluntary change to the fair-value based method of accounting for stock-based employee compensation and it amends the prior disclosure requirements of Statement No. 123 to require more prominent and frequent disclosures about the effects of stock-based compensation. As permitted, the Bank has retained its prior method of accounting for stock-based employee compensation. D-20 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE A--SIGNIFICANT ACCOUNTING POLICIES--CONTINUED FASB Interpretation No. 45, GUARANTOR'S ACCOUNTING AND DISCLOSURE REQUIREMENTS FOR GUARANTEES, INCLUDING INDIRECT GUARANTEES AND INDEBTEDNESS OF OTHERS, expands disclosures about obligations under certain guarantees and, in addition, requires recording a liability for the fair value of the obligations undertaken in issuing the guarantee, applicable to guarantees issued or modified after December 31, 2002. This new guidance had no material impact on the Bank's financial position or results of operations, upon implementation. In 2001, the Securities and Exchange Commission, American Institute of Certified Public Accountants and Federal Financial Institutions Examination Council each issued new guidance (some of which remains to be finalized) on accounting for allowances for loan losses. While the new guidance does not change prior accounting rules in this area, it provides additional clarification and guidance on how the calculation, adequacy and approval of the allowances should be documented by management. A variety of proposed or otherwise potential accounting standards are currently under study by standard-setting organizations and various regulatory agencies. Because of the tentative and preliminary nature of these proposed standards, management has not determined whether implementation of such proposed standards would be material to the Bank's financial statements. NOTE B--INVESTMENT SECURITIES Investment securities consisted of the following at December 31:
2002 2001 ----------------------- ----------------------- Estimated Estimated Amortized Market Amortized Market Cost Value Cost Value ---------- ---------- ---------- ---------- Available for sale: United States government agency securities $3,575,636 $3,584,589 $ 308,564 $ 300,648 Held for long-term investment: Federal Home Loan Bank stock 47,300 47,300 41,960 41,960 ---------- ---------- ---------- ---------- $3,622,936 $3,631,889 $ 350,524 $ 342,608 ========== ========== ========== ==========
Investment in Federal Home Loan Bank stock is restricted and may only be resold to or redeemed by the issuer. Gross unrealized gains and losses on investment securities available for sale was a gain of $8,953 at December 31, 2002 and a loss of ($7,916) at December 31, 2001. Gross realized gains and losses from sales, calls and maturities of investment securities were insignificant for each of the periods presented. D-21 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE B--INVESTMENT SECURITIES --CONTINUED Scheduled maturities of investment securities held as of December 31, 2002 were as follows: Estimated Amortized Market Cost Value ---------- ---------- After one year through five years $3,271,026 $3,275,642 After ten years 304,610 308,947 Securities held for long-term investment, without stated maturities 47,300 47,300 ---------- ---------- $3,622,936 $3,631,889 ========== ========== NOTE C--LOANS Transactions in the allowance for loan losses are summarized below: 2002 2001 2000 --------- --------- --------- Balance at January 1 $ 806,000 $ 441,000 $ 154,000 Provision charged to operations 351,078 462,525 337,000 Loans charged off (deduction) (489,316) (97,540) (50,000) Recoveries 7,238 15 --------- --------- --------- Balance at December 31 $ 675,000 $ 806,000 $ 441,000 ========= ========= ========= Impaired loans (i.e., loans for which there is a reasonable probability that borrowers would be unable to repay all principal and interest due under the contractual terms of the loan documents) were not material. Nonperforming loans (i.e., loans which are 90 days or more past due and loans on nonaccrual status) are summarized below: December 31 ------------------- 2002 2001 -------- -------- Nonaccrual loans: Commercial $734,000 $989,000 Real estate -- -- Installment -- -- -------- -------- Total nonaccrual loans 734,000 989,000 Past due (>90 days) loans: Commercial -- -- Real estate -- -- Installment -- -- -------- -------- Total past due loans -0- -0- -------- -------- Total nonperforming loans $734,000 $989,000 ======== ======== D-22 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE C--LOANS--CONTINUED If nonperforming loans had performed in accordance with their contractual terms during the year, additional interest income of approximately $36,000 would have been recorded in 2002 (none in 2001 and 2000). No interest income was recognized on loans in nonaccrual status in 2002, 2001 and 2000. At December 31, 2002, there were no material amounts of loans which were restructured or otherwise renegotiated as a concession to troubled borrowers. The amounts of the allowance for loan losses allocated in the following table are based on management's estimate of losses inherent in the portfolio at the balance sheet date, and should not be interpreted as an indication of future charge-offs:
December 31, 2002 December 31, 2001 ----------------------- ----------------------- Percentage Percentage of Total of Total Portfolio Portfolio Amount Loans Amount Loans -------- -------- -------- -------- Commercial $668,100 1.54% $790,000 1.57% Real Estate Mortgage 2,100 0.01 Installment 4,800 0.01 16,000 0.03 -------- -------- -------- -------- Total allowance for loan losses $675,000 1.56% $806,000 1.60% ======== ======== ======== ========
NOTE D--RELATED PARTIES TRANSACTIONS In the ordinary course of business, the Bank makes loans to officers and directors of the Bank including their immediate families and companies in which they are principal owners. At December 31, 2002 and 2001, total loans to these persons approximated $1,718,000 and $3,254,000, respectively. During 2002, $607,000 of new loans were made to these persons and repayments totaled $2,143,000. Such loans are made at the Bank's normal credit terms. Such officers and directors of the Bank (and their associates, family and/or affiliates) are also depositors of the Bank. Such deposits are similarly made at the Bank's normal terms as to interest rate, term and deposit insurance. The Bank purchases certain data processing and management services from Capitol Bancorp Limited. Amounts paid for such services approximated $475,000, $423,000 and $296,000 in 2002, 2001 and 2000, respectively. D-23 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE E--PREMISES AND EQUIPMENT Major classes of premises and equipment consisted of the following at December 31: 2002 2001 --------- --------- Leasehold improvements $ 158,641 $ 158,641 Equipment and furniture 478,546 420,391 --------- --------- 637,187 579,032 Less accumulated depreciation (344,425) (246,265) --------- --------- $ 292,762 $ 332,767 ========= ========= The Bank rents office space under an operating lease. Rent expense under this lease agreement approximated $128,000, $115,000 and $94,000 in 2002, 2001 and 2000, respectively. At December 31, 2002, future minimum rental payments under operating leases that have initial or remaining noncancelable lease terms in excess of one year were as follows: 2003 $ 135,000 2004 139,000 2005 143,000 2006 147,000 2007 152,000 2008 and thereafter 183,000 --------- Total $ 899,000 ========= NOTE F--DEPOSITS The aggregate amount of time deposits of $100,000 or more approximated $10 million and $16 million as of December 31, 2002 and 2001, respectively. At December 31, 2002, the scheduled maturities of such time deposits were as follows: 2003 $5,945,000 2004 3,386,000 2006 520,000 2007 103,000 ---------- Total $9,954,000 ========== Interest paid approximates amounts charged to operations on an accrual basis for the periods presented. D-24 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE G--STOCK OPTIONS During 2002, 2,000 stock options were granted (1,000 were granted in 2001). At December 31, 2002, 73,000 stock options were outstanding (of which 49,800 were currently exercisable), of which 30,000 and 43,000 expire in 2007 and 2008, respectively. At December 31, 2001, 71,000 stock options were outstanding, of which 35,200 were currently exercisable. (70,000 outstanding at December 31, 2000 of which 20,000 were currently exercisable). Each option vests ratably over a five-year period and enables the holder to purchase one share of the Bank's common stock at $10.00 per share. NOTE H--EMPLOYEE RETIREMENT PLAN Subject to eligibility requirements, the Bank's employees participate in a multi-employer employee 401(k) retirement plan. Amounts charged to expense by the Bank for this plan approximated $17,000, $22,000 and $8,000 in 2002, 2001 and 2000, respectively. NOTE I--INCOME TAXES Federal income taxes (benefit) consist of the following components: 2002 2001 2000 -------- -------- -------- Current $ -- $ -- $ -- Deferred 112,000 29,000 (92,000) -------- -------- -------- $112,000 $ 29,000 $(92,000) ======== ======== ======== Net deferred income tax assets consisted of the following at December 31: 2002 2001 -------- -------- Allowance for loan losses $109,000 $157,000 Net operating loss carryforward 108,000 156,000 Market value adjustment for investment securities available for sale (3,000) 3,000 Other, net (80,000) (64,000) -------- -------- $134,000 $252,000 ======== ======== No federal income taxes were paid during 2002, 2001 or 2000. As of December 31, 2002, the Bank has net operating loss carryforwards for federal income tax purposes of approximately $318,000, which expire at the following dates and amounts: 2019 $185,000 2020 133,000 -------- $318,000 ======== D-25 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE J--ESTIMATED FAIR VALUE OF FINANCIAL INSTRUMENTS Carrying values and estimated fair values of financial instruments at December 31 were as follows (in thousands):
2002 2001 --------------------- --------------------- Estimated Estimated Carrying Fair Carrying Fair Value Value Value Value -------- -------- -------- -------- Financial Assets: Cash and cash equivalents $ 7,904 $ 7,904 $ 6,044 $ 6,044 Investment securities: Available for sale 3,585 3,585 301 301 Held for long-term investment 47 47 42 42 -------- -------- -------- -------- 3,632 3,632 343 343 Portfolio loans: Fixed rate 36,253 35,849 25,934 26,023 Variable rate 7,098 7,129 24,427 24,418 -------- -------- -------- -------- Total portfolio loans 43,351 42,978 50,361 50,441 Less allowance for loan losses (675) (675) (806) (806) -------- -------- -------- -------- Net portfolio loans 42,676 42,303 49,555 49,635 Financial Liabilities: Deposits: Noninterest-bearing 10,157 10,157 6,113 6,113 Interest-bearing: Demand accounts 24,377 24,365 21,760 21,760 Time certificates of deposit less than $100,000 5,447 5,489 7,641 7,614 Time certificates of deposit $100,000 or more 9,954 10,023 16,489 16,427 -------- -------- -------- -------- Total interest-bearing deposits 39,778 39,877 45,890 45,801 -------- -------- -------- -------- Total deposits 49,935 50,034 52,003 51,914
Estimated fair values of financial assets and liabilities are based upon a comparison of current interest rates on financial instruments and the timing of related scheduled cash flows to the estimated present value of such cash flows using current estimated market rates of interest unless quoted market values or other fair value information is more readily available. Such estimates of fair value are not intended to represent market value or portfolio liquidation value, and only represent an estimate of fair values based on current financial reporting requirements. D-26 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE K--COMMITMENTS AND CONTINGENCIES In the ordinary course of business, various loan commitments are made to accommodate the financial needs of Bank customers. Such loan commitments include stand-by letters of credit, lines of credit, and various commitments for other commercial, consumer and mortgage loans. Stand-by letters of credit, when issued, commit the Bank to make payments on behalf of customers when certain specified future events occur and are used infrequently ($15,000 and $38,000 at December 31, 2002 and 2001, respectively). Other loan commitments outstanding consist of unused lines of credit and approved, but unfunded, specific loan commitments ($9 million and $13.1 million at December 31, 2002 and 2001, respectively). These loan commitments (stand-by letters of credit and unfunded loans) generally expire within one year and are reviewed periodically for continuance or renewal. All loan commitments have credit risk essentially the same as that involved in routinely making loans to customers and are made subject to the Bank's normal credit policies. In making these loan commitments, collateral and/or personal guarantees of the borrowers are generally obtained based on management's credit assessment. Such loan commitments are also included in management's evaluation of the adequacy of the allowance for loan losses. The Bank is required to maintain an average reserve balance in the form of cash on hand and balances due from the Federal Reserve Bank and certain correspondent banks. The amount of reserve balances required as of December 31, 2002 and 2001 were $40,000 and $25,000, respectively. Deposits at the Bank are insured up to the maximum amount covered by FDIC insurance. NOTE L--CAPITAL REQUIREMENTS The Bank is subject to certain capital requirements. Federal financial institution regulatory agencies have established certain risk-based capital guidelines for banks. Those guidelines require all banks to maintain certain minimum ratios and related amounts based on "Tier 1" and "Tier 2" capital and "risk-weighted assets" as defined and periodically prescribed by the respective regulatory agencies. Failure to meet these capital requirements can result in severe regulatory enforcement action or other adverse consequences for a depository institution, and, accordingly, could have a material impact on the Bank's financial statements. D-27 NOTES TO FINANCIAL STATEMENTS DESERT COMMUNITY BANK DECEMBER 31, 2002 NOTE L--CAPITAL REQUIREMENTS--CONTINUED Under the regulatory capital adequacy guidelines and related framework for prompt corrective action, the specific capital requirements involve quantitative measures of assets, liabilities and certain off-balance-sheet items calculated under regulatory accounting practices. The capital amounts and classifications are also subject to qualitative judgments by regulatory agencies about components, risk weighting and other factors. As a condition of charter approval, the Bank is required to maintain a core capital (Tier 1) to average total assets of not less than 8% and an allowance for loan losses of not less than 1% of portfolio loans for the first three years of operations. As of December 31, 2002, the Bank has been in operation for more than three years. As of December 31, 2002, the most recent notification received by the Bank from regulatory agencies has advised that the Bank is classified as "well-capitalized" as that term is defined by the applicable agencies. There are no conditions or events since those notifications that management believes would change the regulatory classification of the Bank. Management believes, as of December 31, 2002, that the Bank meets all capital adequacy requirements to which it is subject. The Bank's various amounts of regulatory capital and related ratios as of December 31, 2002 and 2001 are summarized below (amounts in thousands):
2002 2001 ----------- ----------- Tier 1 capital to average total assets: Minimum required amount >= $ 2,259 >= $ 4,500 Actual amount $ 5,130 $ 4,721 Ratio 9.08% 8.39% Tier 1 capital to risk-weighted assets: Minimum required amount(1) >= $ 1,835 >= $ 2,151 Actual amount $ 5,130 $ 4,721 Ratio 11.18% 8.78% Combined Tier 1 and Tier 2 capital to risk-weighted assets: Minimum required amount(2) >= $ 3,670 >= $ 4,303 Amount required to meet "Well-Capitalized" category(3) $ 4,588 $ 5,378 Actual amount $ 5,705 $ 5,395 Ratio 12.44% 10.03%
(1) The minimum required ratio of Tier 1 capital to risk-weighted assets is 4%. (2) The minimum required ratio of Tier 1 and Tier 2 capital to risk-weighted assets is 8%. (3) In order to be classified as a `well-capitalized' institution, the ratio of Tier 1 and Tier 2 capital to risk-weighted assets must be 10% or more. D-28 ANNEX E FINANCIAL AND OTHER INFORMATION REGARDING CAPITOL BANCORP LIMITED The following items accompany this Proxy Statement/Prospectus as mailed to the shareholders of Desert Community Bank: - Report on Form 10-Q for period ended March 31, 2003 - Annual report to shareholders for year ended December 31, 2002 - Annual report on Form 10-K for year ended December 31, 2002 - Proxy statement for Capitol's Annual Meeting of Shareholders held on May 8, 2003 ANNEX F EXCERPTS OF NEVADA REVISED STATUTES REGARDING DISSENTERS' RIGHTS NRS 92A.300 DEFINITIONS. As used in NRS 92A.300 to 92A.500, inclusive, unless the context otherwise requires, the words and terms defined in NRS 92A.305 to 92A.335, inclusive, have the meanings ascribed to them in those sections. (Added to NRS by 1995, 2086) NRS 92A.305 "BENEFICIAL STOCKHOLDER" DEFINED. "Beneficial stockholder" means a person who is a beneficial owner of shares held in a voting trust or by a nominee as the stockholder of record. (Added to NRS by 1995, 2087) NRS 92A.310 "CORPORATE ACTION" DEFINED. "Corporate action" means the action of a domestic corporation. (Added to NRS by 1995, 2087) NRS 92A.315 "DISSENTER" DEFINED. "Dissenter" means a stockholder who is entitled to dissent from a domestic corporation's action under NRS 92A.380 and who exercises that right when and in the manner required by NRS 92A.400 to 92A.480, inclusive. (Added to NRS by 1995, 2087; A 1999, 1631) NRS 92A.320 "FAIR VALUE" DEFINED. "Fair value," with respect to a dissenter's shares, means the value of the shares immediately before the effectuation of the corporate action to which he objects, excluding any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable. (Added to NRS by 1995, 2087) NRS 92A.325 "STOCKHOLDER" DEFINED. "Stockholder" means a stockholder of record or a beneficial stockholder of a domestic corporation. (Added to NRS by 1995, 2087) NRS 92A.330 "STOCKHOLDER OF RECORD" DEFINED. "Stockholder of record" means the person in whose name shares are registered in the records of a domestic corporation or the beneficial owner of shares to the extent of the rights granted by a nominee's certificate on file with the domestic corporation. (Added to NRS by 1995, 2087) NRS 92A.335 "SUBJECT CORPORATION" DEFINED. "Subject corporation" means the domestic corporation which is the issuer of the shares held by a dissenter before the corporate action creating the dissenter's rights becomes effective or the surviving or acquiring entity of that issuer after the corporate action becomes effective. (Added to NRS by 1995, 2087) NRS 92A.340 COMPUTATION OF INTEREST. Interest payable pursuant to NRS 92A.300 to 92A.500, inclusive, must be computed from the effective date of the action until the date of payment, at the average rate currently paid by the entity on its principal bank loans or, if it has no bank loans, at a rate that is fair and equitable under all of the circumstances. (Added to NRS by 1995, 2087) NRS 92A.350 RIGHTS OF DISSENTING PARTNER OF DOMESTIC LIMITED PARTNERSHIP. A partnership agreement of a domestic limited partnership or, unless otherwise provided in the partnership agreement, an agreement of merger or exchange, may provide that contractual rights with respect to the partnership interest of a dissenting general or limited partner of a domestic limited partnership are available for any class or group of partnership interests in connection with any merger or exchange in which the domestic limited partnership is a constituent entity. (Added to NRS by 1995, 2088) F-1 NRS 92A.360 RIGHTS OF DISSENTING MEMBER OF DOMESTIC LIMITED-LIABILITY COMPANY. The articles of organization or operating agreement of a domestic limited-liability company or, unless otherwise provided in the articles of organization or operating agreement, an agreement of merger or exchange, may provide that contractual rights with respect to the interest of a dissenting member are available in connection with any merger or exchange in which the domestic limited-liability company is a constituent entity. (Added to NRS by 1995, 2088) NRS 92A.370 RIGHTS OF DISSENTING MEMBER OF DOMESTIC NONPROFIT CORPORATION. 1. Except as otherwise provided in subsection 2, and unless otherwise provided in the articles or bylaws, any member of any constituent domestic nonprofit corporation who voted against the merger may, without prior notice, but within 30 days after the effective date of the merger, resign from membership and is thereby excused from all contractual obligations to the constituent or surviving corporations which did not occur before his resignation and is thereby entitled to those rights, if any, which would have existed if there had been no merger and the membership had been terminated or the member had been expelled. 2. Unless otherwise provided in its articles of incorporation or bylaws, no member of a domestic nonprofit corporation, including, but not limited to, a cooperative corporation, which supplies services described in chapter 704 of NRS to its members only, and no person who is a member of a domestic nonprofit corporation as a condition of or by reason of the ownership of an interest in real property, may resign and dissent pursuant to subsection 1. (Added to NRS by 1995, 2088) NRS 92A.380 RIGHT OF STOCKHOLDER TO DISSENT FROM CERTAIN CORPORATE ACTIONS AND TO OBTAIN PAYMENT FOR SHARES. 1. Except as otherwise provided in NRS 92A.370 and 92A.390, a stockholder is entitled to dissent from, and obtain payment of the fair value of his shares in the event of any of the following corporate actions: (a) Consummation of a plan of merger to which the domestic corporation is a constituent entity: (1) If approval by the stockholders is required for the merger by NRS 92A.120 to 92A.160, inclusive, or the articles of incorporation, regardless of whether the stockholder is entitled to vote on the plan of merger; or (2) If the domestic corporation is a subsidiary and is merged with its parent pursuant to NRS 92A.180. (b) Consummation of a plan of exchange to which the domestic corporation is a constituent entity as the corporation whose subject owner's interests will be acquired, if his shares are to be acquired in the plan of exchange. (c) Any corporate action taken pursuant to a vote of the stockholders to the event that the articles of incorporation, bylaws or a resolution of the board of directors provides that voting or nonvoting stockholders are entitled to dissent and obtain payment for their shares. 2. A stockholder who is entitled to dissent and obtain payment pursuant to NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate action creating his entitlement unless the action is unlawful or fraudulent with respect to him or the domestic corporation. (Added to NRS by 1995, 2087; A 2001, 1414, 3199) NRS 92A.390 LIMITATIONS ON RIGHT OF DISSENT: STOCKHOLDERS OF CERTAIN CLASSES OR SERIES; ACTION OF STOCKHOLDERS NOT REQUIRED FOR PLAN OF MERGER. 1. There is no right of dissent with respect to a plan of merger or exchange in favor of stockholders of any class or series which, at the record date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting at which the plan of merger or exchange is to be acted on, were either listed on a national securities exchange, included in the national market system by the National Association of Securities Dealers, Inc., or held by at least 2,000 stockholders of record, unless: (a) The articles of incorporation of the corporation issuing the shares provide otherwise; or (b) The holders of the class or series are required under the plan of merger or exchange to accept for the shares anything except: (1) Cash, owner's interests or owner's interests and cash in lieu of fractional owner's interests of: (I) The surviving or acquiring entity; or (II) Any other entity which, at the effective date of the plan of merger or exchange, were either listed on a national securities exchange, included in the national market system by the National Association of Securities Dealers, Inc., or held of record by a least 2,000 holders of owner's interests of record; or F-2 (2) A combination of cash and owner's interests of the kind described in sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph (b). 2. There is no right of dissent for any holders of stock of the surviving domestic corporation if the plan of merger does not require action of the stockholders of the surviving domestic corporation under NRS 92A.130. (Added to NRS by 1995, 2088) NRS 92A.400 LIMITATIONS ON RIGHT OF DISSENT: ASSERTION AS TO PORTIONS ONLY TO SHARES REGISTERED TO STOCKHOLDER; ASSERTION BY BENEFICIAL STOCKHOLDER. 1. A stockholder of record may assert dissenter's rights as to fewer than all of the shares registered in his name only if he dissents with respect to all shares beneficially owned by any one person and notifies the subject corporation in writing of the name and address of each person on whose behalf he asserts dissenter's rights. The rights of a partial dissenter under this subsection are determined as if the shares as to which he dissents and his other shares were registered in the names of different stockholders. 2. A beneficial stockholder may assert dissenter's rights as to shares held on his behalf only if: (a) He submits to the subject corporation the written consent of the stockholder of record to the dissent not later than the time the beneficial stockholder asserts dissenter's rights; and (b) He does so with respect to all shares of which he is the beneficial stockholder or over which he has power to direct the vote. (Added to NRS by 1995, 2089) NRS 92A.410 NOTIFICATION OF STOCKHOLDERS REGARDING RIGHT OF DISSENT. 1. If a proposed corporate action creating dissenters' rights is submitted to a vote at a stockholders' meeting, the notice of the meeting must state that stockholders are or may be entitled to assert dissenters' rights under NRS 92A.300 to 92A.500, inclusive, and be accompanied by a copy of those sections. 2. If the corporate action creating dissenters' rights is taken by written consent of the stockholders or without a vote of the stockholders, the domestic corporation shall notify in writing all stockholders entitled to assert dissenters' rights that the action was taken and send them the dissenter's notice described in NRS 92A.430. (Added to NRS by 1995, 2089; A 1997, 730) NRS 92A.420 PREREQUISITES TO DEMAND FOR PAYMENT FOR SHARES. 1. If a proposed corporate action creating dissenters' rights is submitted to a vote at a stockholders' meeting, a stockholder who wishes to assert dissenter's rights: (a) Must deliver to the subject corporation, before the vote is taken, written notice of his intent to demand payment for his shares if the proposed action is effectuated; and (b) Must not vote his shares in favor of the proposed action. 2. A stockholder who does not satisfy the requirements of subsection 1 and NRS 92A.400 is not entitled to payment for his shares under this chapter. (Added to NRS by 1995, 2089; 1999, 1631) NRS 92A.430 DISSENTER'S NOTICE: DELIVERY TO STOCKHOLDERS ENTITLED TO ASSERT RIGHTS; CONTENTS. 1. If a proposed corporate action creating dissenters' rights is authorized at a stockholders' meeting, the subject corporation shall deliver a written dissenter's notice to all stockholders who satisfied the requirements to assert those rights. 2. The dissenter's notice must be sent no later than 10 days after the effectuation of the corporate action, and must: (a) State where the demand for payment must be sent and where and when certificates, if any, for shares must be deposited; (b) Inform the holders of shares not represented by certificates to what extent the transfer of the shares will be restricted after the demand for payment is received; (c) Supply a form for demanding payment that includes the date of the first announcement to the news media or to the stockholders of the terms of the proposed action and requires that the person asserting dissenter's rights certify whether or not he acquired beneficial ownership of the shares before that date; (d) Set a date by which the subject corporation must receive the demand for payment, which may not be less than 30 nor more than 60 days after the date the notice is delivered; and (e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive. (Added to NRS by 1995, 2089) F-3 NRS 92A.440 DEMAND FOR PAYMENT AND DEPOSIT OF CERTIFICATES; RETENTION OF RIGHTS OF STOCKHOLDER. 1. A stockholder to whom a dissenter's notice is sent must: (a) Demand payment; (b) Certify whether he acquired beneficial ownership of the shares before the date required to be set forth in the dissenter's notice for this certification; and (c) Deposit his certificates, if any, in accordance with the terms of the notice. 2. The stockholder who demands payment and deposits his certificates, if any, before the proposed corporate action is taken retains all other rights of a stockholder until those rights are canceled or modified by the taking of the proposed corporate action. 3. The stockholder who does not demand payment or deposit his certificates where required, each by the date set forth in the dissenter's notice, is not entitled to payment for his shares under this chapter. (Added to NRS by 1995, 2090; A 1997, 730) NRS 92A.450 UNCERTIFICATED SHARES: AUTHORITY TO RESTRICT TRANSFER AFTER DEMAND FOR PAYMENT; RETENTION OF RIGHTS OF STOCKHOLDER. 1. The subject corporation may restrict the transfer of shares not represented by a certificate from the date the demand for their payment is received. 2. The person for whom dissenter's rights are asserted as to shares not represented by a certificate retains all other rights of a stockholder until those rights are canceled or modified by the taking of the proposed corporate action. (Added to NRS by 1995, 2090) NRS 92A.460 PAYMENT FOR SHARES: GENERAL REQUIREMENTS. 1. Except as otherwise provided in NRS 92A.470, within 30 days after receipt of a demand for payment, the subject corporation shall pay each dissenter who complied with NRS 92A.440 the amount the subject corporation estimates to be the fair value of his shares, plus accrued interest. The obligation of the subject corporation under this subsection may be enforced by the district court: (a) Of the county where the corporation's registered office is located; or (b) At the election of any dissenter residing or having its registered office in this state, of the county where the dissenter resides or has its registered office. The court shall dispose of the complaint promptly. 2. The payment must be accompanied by: (a) The subject corporation's balance sheet as of the end of a fiscal year ending not more than 16 months before the date of payment, a statement of income for that year, a statement of changes in the stockholders' equity for that year and the latest available interim financial statements, if any; (b) A statement of the subject corporation's estimate of the fair value of the shares; (c) An explanation of how the interest was calculated; (d) A statement of the dissenter's rights to demand payment under NRS 92A.480; and (e) A copy of NRS 92A.300 to 92A.500, inclusive. (Added to NRS by 1995, 2090) NRS 92A.470 PAYMENT FOR SHARES: SHARES ACQUIRED ON OR AFTER DATE OF DISSENTER'S NOTICE. 1. A subject corporation may elect to withhold payment from a dissenter unless he was the beneficial owner of the shares before the date set forth in the dissenter's notice as the date of the first announcement to the news media or to the stockholders of the terms of the proposed action. 2. To the extent the subject corporation elects to withhold payment, after taking the proposed action, it shall estimate the fair value of the shares, plus accrued interest, and shall offer to pay this amount to each dissenter who agrees to accept it in full satisfaction of his demand. The subject corporation shall send with its offer a statement of its estimate of the fair value of the shares, an explanation of how the interest was calculated, and a statement of the dissenters' right to demand payment pursuant to NRS 92A.480. (Added to NRS by 1995, 2091) NRS 92A.480 DISSENTER'S ESTIMATE OF FAIR VALUE: NOTIFICATION OF SUBJECT CORPORATION; DEMAND FOR PAYMENT OF ESTIMATE. 1. A dissenter may notify the subject corporation in writing of his own estimate of the fair value of his shares and the amount of interest due, and demand payment of his estimate, less any payment pursuant to NRS 92A.460, or reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of his shares and interest due, if he believes that the amount paid pursuant to NRS 92A.460 or offered pursuant to NRS 92A.470 is less than the fair value of his shares F-4 or that the interest due is incorrectly calculated. 2. A dissenter waives his right to demand payment pursuant to this section unless he notifies the subject corporation of his demand in writing within 30 days after the subject corporation made or offered payment for his shares. (Added to NRS by 1995, 2091) NRS 92A.490 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: DUTIES OF SUBJECT CORPORATION; POWERS OF COURT; RIGHTS OF DISSENTER. 1. If a demand for payment remains unsettled, the subject corporation shall commence a proceeding within 60 days after receiving the demand and petition the court to determine the fair value of the shares and accrued interest. If the subject corporation does not commence the proceeding within the 60 day period, it shall pay each dissenter whose demand remains unsettled the amount demanded. 2. A subject corporation shall commence the proceeding in the district court of the county where its registered office is located. If the subject corporation is a foreign entity without a resident agent in the state, it shall commence the proceeding in the county where the registered office of the domestic corporation merged with or whose shares were acquired by the foreign entity was located. 3. The subject corporation shall make all dissenters, whether or not residents of Nevada, whose demands remain unsettled, parties to the proceeding as in an action against their shares. All parties must be served with a copy of the petition. Nonresidents may be served by registered or certified mail or by publication as provided by law. 4. The jurisdiction of the court in which the proceeding is commenced under subsection 2 is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers have the powers described in the order appointing them, or any amendment thereto. The dissenters are entitled to the same discovery rights as parties in other civil proceedings. 5. Each dissenter who is made a party to the proceeding is entitled to a judgment: (a) For the amount, if any, by which the court finds the fair value of his shares, plus interest, exceeds the amount paid by the subject corporation; or (b) For the fair value, plus accrued interest, of his after-acquired shares for which the subject corporation elected to withhold payment pursuant to NRS 92A.470. (Added to NRS by 1995, 2091) NRS 92A.500 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: ASSESSMENT OF COSTS AND FEES. 1. The court in a proceeding to determine fair value shall determine all of the costs of the proceeding, including the reasonable compensation and expenses of any appraisers appointed by the court. The court shall assess the costs against the subject corporation, except that the court may assess costs against all or some of the dissenters, in amounts the court finds equitable, to the extent the court finds the dissenters acted arbitrarily, vexatiously or not in good faith in demanding payment. 2. The court may also assess the fees and expenses of the counsel and experts for the respective parties, in amounts the court finds equitable: (a) Against the subject corporation and in favor of all dissenters if the court finds the subject corporation did not substantially comply with the requirements of NRS 92A.300 to 92A.500, inclusive; or (b) Against either the subject corporation or a dissenter in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously or not in good faith with respect to the rights provided by NRS 92A.300 to 92A.500, inclusive. 3. If the court finds that the services of counsel for any dissenter were of substantial benefit to other dissenters similarly situated, and that the fees for those services should not be assessed against the subject corporation, the court may award to those counsel reasonable fees to be paid out of the amounts awarded to the dissenters who were benefited. 4. In a proceeding commenced pursuant to NRS 92A.460, the court may assess the costs against the subject corporation, except that the court may assess costs against all or some of the dissenters who are parties to the proceeding, in amounts the court finds equitable, to the extent the court finds that such parties did not act in good faith in instituting the proceeding. 5. This section does not preclude any party in a proceeding commenced pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P. 68 or NRS 17.115. (Added to NRS by 1995, 2092) F-5 DESERT COMMUNITY BANK PROXY FOR ANNUAL MEETING OF SHAREHOLDERS To Be Held On July 25, 2003 THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS. The undersigned shareholder of DESERT COMMUNITY BANK hereby appoints James W. Howard and Thomas C. Mangione, or either of them, to represent the undersigned at the meeting of the shareholders of DESERT COMMUNITY BANK to be held on July 25, 2003, at 11:00 a.m. (local time), at Desert Community Bank, 3740 South Pecos-McLeod, Las Vegas, Nevada 89121, and at any adjournments or postponements thereof, and to vote the number of shares the undersigned would be entitled to vote if personally present at the meeting on the matters listed below. When properly executed, this proxy will be voted in the manner directed by the undersigned shareholder and in the discretion of the proxy holder as to any other matter that may come before the meeting of shareholders and at any adjournment or postponement thereof. If no direction is given, this proxy will be voted "FOR" the proposal to approve and adopt the Plan of Share Exchange and in the discretion of the proxy holder as to any other matter that may properly come before the meeting or any adjournments or postponements thereof. WHETHER OR NOT YOU EXPECT TO ATTEND THE MEETING, YOU ARE URGED TO COMPLETE, DATE, AND PROMPTLY RETURN THIS PROXY IN THE ENCLOSED POSTAGE-PAID ENVELOPE SO THAT YOUR SHARES MAY BE REPRESENTED AT THE MEETING. THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE APPROVAL OF THE PLAN OF SHARE EXCHANGE. 1. Proposal to approve and adopt the Plan of Share Exchange, dated as of May 16, 2003, between and among CAPITOL BANCORP LIMITED and the shareholders of DESERT COMMUNITY BANK to exchange the shares of common stock of DESERT COMMUNITY BANK not now held by CAPITOL BANCORP LIMITED for shares of common stock of CAPITOL BANCORP LIMITED according to the terms of the Plan of Share Exchange. After the share exchange, DESERT COMMUNITY BANK will be a wholly owned subsidiary of CAPITOL BANCORP LIMITED. [ ] FOR [ ] AGAINST [ ] ABSTAIN 2. Election of Directors Number of shares entitled to vote: _______ CHOOSE A OR B A ___ Vote for the nominees listed. B ___ Withold authority to vote for all nominees listed below. ___ Robert J. Andrews ___ James W. Howard ___ Tracy R. Brouchard ___ Charles L. Lasky ___ Michael J. Devine ___ Thomas C. Mangione ___ Rosa M.K. Dominguez ___ John S. Lewis ___ Tom R. Grimmett ___ Joseph D. Reid III ___ Garry L. Hayes ___ Leland D. Pace ___ Stephen D. Stiver 3. In their discretion, the Proxies are authorized to vote upon such other business as may properly come before the Meeting. THIS PROXY WILL BE VOTED AS DIRECTED, OR IF NO DIRECTION IS INDICATED, IT SHALL BE VOTED FOR PROPOSAL 1 AND 2. Dated: ______________, 2003 Number of Shares of Common Stock: ----------------------------------- Signature (and title if applicable) ----------------------------------- Signature (if held jointly) Please sign your name exactly as it appears on your stock certificate. When shares are held by joint tenants, both should sign. When signing as attorney, executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign in full corporate name by the President or other authorized officer. If a partnership, please sign in partnership name by authorized person. -----END PRIVACY-ENHANCED MESSAGE-----