-----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, GgCVAVIhmht/TRWOhu58dDuEbxOvMqY5VHPg9x0AemOkaN3/e2iGIbWUglKTJcwU KWiCrJUGi6v54s91WXGncA== 0000950134-04-000476.txt : 20040116 0000950134-04-000476.hdr.sgml : 20040116 20040116170345 ACCESSION NUMBER: 0000950134-04-000476 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20040116 EFFECTIVENESS DATE: 20040116 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BLUE VALLEY BAN CORP CENTRAL INDEX KEY: 0000901842 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 481070996 STATE OF INCORPORATION: KS FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-111979 FILM NUMBER: 04530226 BUSINESS ADDRESS: STREET 1: 11935 RILEY CITY: OVERLAND PARK STATE: KS ZIP: 66225 BUSINESS PHONE: 9133381000 MAIL ADDRESS: STREET 1: 11935 RILEY CITY: OVERLAND PARK STATE: KS ZIP: 66225 S-8 1 c82128sv8.txt FORM S-8 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Blue Valley Ban Corp (Exact name of registrant as specified in its charter) Kansas 48-1070996 (State of Incorporation) (I.R.S. Employer Identification No.) 11935 Riley Overland Park, Kansas 66225-6128 (Address, including zip code, of registrant's principal executive offices) 2004 Employee Stock Purchase Plan (Full title of the Plans) Robert D. Regnier President and Chief Executive Officer Blue Valley Ban Corp 11935 Riley Overland Park, Kansas 66225-6128 (913) 338-1000 (Name, address and telephone number, including area code, of agent for service)
- ------------------------------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------- Proposed maximum Proposed maximum Amount of Title of securities to Amount to be offering price aggregate registration be registered Registered (1) per share (2) offering price (2) Fee (2) - ---------------------------------- --------------------- ------------------- ------------------- ------------------ Common Stock, $1.00 par value 100,000 shares $28.00 $2,800,000 $226.52 - ---------------------------------- --------------------- ------------------- ------------------- ------------------
(1) The securities to be registered include 100,000 shares reserved for issuance under the Blue Valley Ban Corp 2003 Employee Stock Purchase Plan (the "Plan"). Pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), the registration statement is deemed to include additional shares of common stock issuable under the terms of the Plans to prevent dilution resulting from any future stock split, stock dividend or similar transaction. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of the Securities Act. PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. As permitted by the rules of the Securities and Exchange Commission (the "Commission"), this registration statement omits the information in Item 1 of Part I of Form S-8. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. As permitted by the rules of the Commission, this registration statement omits the information in Item 2 of Part I of Form S-8. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Commission by Blue Valley Ban Corp ("Blue Valley" or the "Registrant") are incorporated in this registration statement on Form S-8 by reference: 1. Blue Valley's Annual Report on Form 10-K for the fiscal year ended December 31, 2002 dated March 27, 2003 (SEC File No. 001-15933) and any amendments thereto (the "Annual Report"); 2. Blue Valley's Quarterly Reports on Form 10-Q for the quarterly periods ended September 30, 2003 dated November 13, 2003, June 30, 2003 dated August 14, 2003 and March 31, 2003 dated May 13, 2003; and 3. Blue Valley's Current Reports on Form 8-K dated December 15, 2003, October 10, 2003, July 14, 2003 and May 15, 2003. All documents subsequently filed by Blue Valley pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. COMMON STOCK Blue Valley is authorized to issue 15,000,000 shares of common stock, of which 2,273,786 shares were issued and outstanding and held of record by approximately 135 persons at November 30, 2003. Holders of common stock are entitled to receive dividends when, as and if declared by our board of directors from funds legally available therefore. Each share of 2 common stock entitles the holder to one vote upon matters to be voted upon by the shareholders. Cumulative voting for the election of directors is not permitted, which means that the holders of a majority of shares voting for the election of directors can elect all members of each class of the board of directors. Except as otherwise required by Kansas law, a majority vote is sufficient for any action that requires the vote or concurrence of shareholders, except that a plurality vote is sufficient to elect directors. The holders of our common stock do not have any preemptive, subscription, redemption or conversion rights or privileges. Upon liquidation or dissolution of Blue Valley, the holders of the common stock are entitled to share ratably in the net assets of Blue Valley remaining after payment of liabilities and liquidation preferences of any outstanding shares of preferred stock. All shares of common stock now outstanding are, and shares to be issued by us in this offering will be, fully paid and nonassessable. Each share of common stock has the same rights, privileges and preferences as every other share. PREFERRED STOCK Although no shares of preferred stock are currently outstanding, Blue Valley is authorized to issue 15,000,000 shares of preferred stock, no par value per share, which the board of directors may designate and issue from time to time in one or more series. With respect to each series of the preferred stock, the board of directors is authorized to fix and determine by the resolution or resolutions providing for the issuance of the series the number of shares to constitute the series and the designation of any one or more of the following rights and preferences: o the rate of dividend; o the price at, and terms and conditions on which, the shares may be redeemed; o the amount payable for the shares in the event of an involuntary or voluntary dissolution; o sinking fund provisions, if any, for the redemption or repurchase of the shares; o the terms and conditions on which the shares may be converted, if the shares of any series are issued with the privilege of conversion; and o voting rights, including the number of votes per share, the matters on which the shares can vote and the contingencies that make voting rights effective. ANTI-TAKEOVER PROVISIONS KANSAS LAW Blue Valley will be subject to the provisions of Section 17-12,100 et. seq. of the Kansas General Corporation Code (the "Business Combination Statute"). In general, the Business Combination Statute prohibits a publicly held Kansas corporation from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date that the person became an interested stockholder unless (with certain exceptions) the business combination or the transaction in which the person became an interested stockholder is approved 3 in a prescribed manner. Generally, a "business combination" includes a merger, asset sale, stock sale, or other transaction resulting in a financial benefit to the stockholder. Generally, an "interested stockholder" is a person who, together with affiliates and associates, owns (or within three years prior, did own) 15% or more of the corporation's outstanding voting stock. This provision may have the effect of delaying, deferring or preventing a change in control of Blue Valley without further action by the interested stockholder. Blue Valley will also be subject to the provisions of Section 17-1286 et. seq. of the Kansas General Corporation Code (the "Control Share Statute"). In general, the Control Share Statute provides that shares of a Kansas corporation acquired in a "control share acquisition" have no voting rights except to the extent approved by a vote of a majority of the votes entitled to be cast on the matter, excluding shares of stock owned by the acquiror or by officers or directors who are employees of the corporation. A control share acquisition means, subject to certain exceptions, the acquisition of beneficial ownership of voting shares of stock which, if aggregated with all other shares of stock which then have voting rights and are beneficially owned by such a person, would entitle the acquiror to exercise voting power in electing directors within one of the following ranges of voting power: o 20% or more but less than 33 1/3%; o 33 1/3% or more but less than a majority; or o a majority of all voting power. The acquisition of shares of stock in addition to shares an acquiring person is entitled to vote as a result of having previously obtained stockholder approval does not constitute a control share acquisition unless, as a result of such acquisition, the voting power of the shares beneficially owned by the acquiror would exceed the range in respect of which voting rights have previously been granted. Certain acquisitions of shares are not deemed to constitute control share acquisitions, including good faith gifts, transfers pursuant to wills, purchases pursuant to an issuance by the corporation and certain mergers involving the corporation. If voting rights are not approved at a meeting of stockholders or if the acquiring person does not deliver an acquiring person statement as permitted by statute, then, subject to certain conditions and limitations, the corporation may redeem at market value any and all of the shares acquired in the control share acquisition. If voting rights for such shares are restored at a stockholders' meeting and the acquiror becomes entitled to vote a majority of the shares entitled to vote, stockholders who properly objected to the control share acquisition may exercise appraisal rights and receive, in exchange for their stock, the fair value of such stock. The fair value of the stock as determined for purposes of such appraisal rights may not be less than the highest price per share paid in the control share acquisition. ARTICLES AND BYLAWS PROVISIONS Our articles of incorporation and bylaws include a number of provisions that may have the effect of deterring or impeding hostile takeovers or changes in control. These provisions include the following: o our board of directors is classified into three classes of directors, nearly equal in size, with staggered three-year terms; 4 o the board of directors has the authority to issue one or more series of preferred stock; o the requirement that stockholders seeking to nominate directors for election or to propose other matters to be presented for a vote at a stockholders' meeting must first notify us in advance; o stockholders do not have cumulative voting rights; and o the requirement that any changes to these provisions requires a two-thirds stockholder vote. These provisions may have the effect of delaying or preventing a change in control of Blue Valley. Our articles of incorporation and bylaws provide that we will indemnify officers and directors against losses that they may incur in investigations and legal proceedings resulting from their services to us, which may include services related to takeover defense measures. Such provisions may have the effect of preventing changes in our management. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Blue Valley's Amended and Restated Articles of Incorporation, together with its Bylaws, provide that Blue Valley shall indemnify to the fullest extent permitted by applicable law each person who is or was an officer or director of Blue Valley, or who is or was serving at the request of Blue Valley as a director, officer, employee, partner, trustee or agent of Blue Valley. The laws of the State of Kansas permit, and in some cases require, corporations to indemnify officers, directors, employees and agents who are or who have been a party to or are threatened to be made a party to litigation against judgments, fines, assessments and reasonable expenses under certain circumstances. Blue Valley has also adopted provisions in its Amended and Restated Articles of Incorporation that limit the liability of its directors to the fullest extent permitted by the laws of the State of Kansas. Under Blue Valley's Amended and Restated Articles of Incorporation, as permitted by the law of the State of Kansas, a director is not liable to Blue Valley or its stockholders for monetary damages from a breach of fiduciary duty as a director, except to the extent such exemption from liability, or limitation thereof, is not permitted under the Kansas General Corporation Code (the "KGCC") as presently in effect or as the same may be amended. As of the filing date of this registration statement, KGCC Section 17-6002 provides, in pertinent part, that corporations shall not eliminate or limit the liability of a director (a) for any breach of the director's duty of loyalty to the corporation or its stockholders, policyholders or members; (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) for the payment of unlawful dividends or other distributions pursuant to the provisions of Section 17-6424 of the KGCC, and amendments thereto; or (d) for any transaction from which the director received an improper personal benefit. 5 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. The following exhibits are filed herewith or are incorporated by reference from documents filed by Blue Valley with the Commission. 4.1 Blue Valley Ban Corp 2003 Employee Stock Purchase Plan 4.2 Amended and Restated Articles of Incorporation of Blue Valley Ban Corp (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 filed by Blue Valley and BVBC Capital Trust I (File Nos. 333-34328 and 333-34329-01)) 4.3 By-laws of Blue Valley Ban Corp (incorporated by reference to Exhibit 3.2 to the Registration Statement on Form S-1 filed by Blue Valley and BVBC Capital Trust I (File Nos. 333-34328 and 333-34329-01)) 4.4 1998 Equity Incentive Plan, Amended and Restated as of March 31, 2003 (incorporated by reference to Appendix B to Schedule 14A filed by Blue Valley on April 8, 2003 (File No. 001-15933)) 4.5 1994 Stock Option Plan (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-1 filed by Blue Valley and BVBC Capital Trust I (File Nos. 333-34328 and 333-34329-01)) 4.6 Subordinated Indenture of Blue Valley Ban Corp (incorporated by reference to Exhibit 4.3 to the Registration Statement on Form S-1 filed by Blue Valley and BVBC Capital Trust I (File Nos. 333-34328 and 333-34329-01)) 4.7 Specimen certificate representing shares of the Common Stock (incorporated by reference to Exhibit 4.6 to the Registration Statement on Form S-8 filed by Blue Valley (File No. 333-46022)) 5.1 Opinion of Blackwell Sanders Peper Martin LLP as to the legality of the Common Stock 15.1 Letter from BKD, LLP acknowledging awareness of the use of a report on unaudited interim financial information 23.1 Consent of BKD, LLP 23.2 Consent of Blackwell Sanders Peper Martin LLP (included in Exhibit 5.1) 24.1 See the signature page of this registration statement for Powers of Attorney executed by certain officers and members of the Board of Directors of Blue Valley 6 ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; PROVIDED, HOWEVER, That paragraphs (a)(1)(i) and (a)(1)(ii) of this item do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act, that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with 7 the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Overland Park, State of Kansas, on January 16, 2004. BLUE VALLEY BAN CORP By: --------------------------------------- Robert D. Regnier, President and Chief Executive Officer 8 POWER OF ATTORNEY We, the undersigned directors and officers of Blue Valley Ban Corp, do hereby constitute and appoint Robert D. Regnier and Mark A. Fortino, and each of them, our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for us and in our name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and any additional registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and we do hereby ratify and confirm all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
Signature and Name Capacity Date - ------------------ -------- ---- President, Chief Executive January 16, 2004 - ------------------------------------ Officer and Director Robert D. Regnier (Principal Executive Officer) Treasurer January 16, 2004 - ------------------------------------ (Principal Financial Officer and Mark A. Fortino Principal Accounting Officer) Director January 16, 2004 - ------------------------------------ Donald H. Alexander Director January 16, 2004 - ------------------------------------ Wayne A. Henry, Jr. Director January 16, 2004 - ------------------------------------ C. Ted McCarter Director January 16, 2004 - ------------------------------------ Thomas A. McDonnell
9 INDEX TO EXHIBITS
Exhibit Number Document ------- -------- 4.1 Blue Valley Ban Corp 2004 Employee Stock Purchase Plan 5.1 Opinion of Blackwell Sanders Peper Martin LLP as to the legality of the Common Stock 15.1 Letter from BKD, LLP acknowledging awareness of the use of a report on unaudited interim financial information 23.1 Consent of BKD, LLP 23.2 Consent of Blackwell Sanders Peper Martin (included in exhibit 5.1)
10 EX-4.1 3 c82128exv4w1.txt 2004 EMPLOYEE STOCK PURCHASE PLAN EXHIBIT 4.1 BLUE VALLEY BAN CORP 2004 EMPLOYEE STOCK PURCHASE PLAN PLAN DOCUMENT 1. Purpose. The purpose of this Employee Stock Purchase Plan (the "Plan") is to provide employees of Blue Valley Ban Corp (the "Company") and its Subsidiaries with an opportunity to purchase Stock of the Company through accumulated payroll deductions, enabling such persons to acquire or increase a proprietary interest in the Company in order to strengthen the mutuality of interests between such persons and the Company's shareholders, and to provide a benefit that will assist the employer in competing to attract and retain employees of high quality. This Plan consists of options ("Qualified Options") intended to qualify under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code") that are granted to employees of the Company or its Subsidiaries. It is the intention of the Company that the Plan qualifies as an "employee stock purchase plan" under Section 423 of the Code. Accordingly, the provisions of the Plan shall be construed in a manner consistent with the requirements of the Code. 2. Definitions. For purposes of the Plan, the following terms shall be defined as set forth below, in addition to such terms as defined in Section 1 hereof: (a) "Account" means the account maintained on behalf of the participant by the Custodian for the purpose of investing in Stock. (b) "Board" means the Company's Board of Directors. (c) "Change in Control" means either one of the following: (i) when any 'person,' as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than the Company, a subsidiary thereof or a Company employee benefit plan, including any trustee of such plan acting as trustee) becomes the 'beneficial owner' (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities; or (ii) the occurrence of a transaction requiring shareholder approval, and involving the sale of all or substantially all of the assets of the Company or the merger of the Company with or into another corporation. (d) "Committee" means the Board of Directors of the Company or any committee thereof who is authorized to act on behalf of the Board with respect to this Plan. (e) "Compensation" means regular straight time earnings, plus bonuses and overtime payments, payments for incentive compensation and other special payments except to the extent that any such item is specifically excluded from the definition of Compensation by the Committee. 1 (f) "Custodian" means a custodian or any successor thereto as appointed by the Committee from time to time. (g) "Employee" means any common law employee employed continuously for at least thirty (30) days prior to the Enrollment Date by the Company or a Subsidiary. The Company or Subsidiary's employment classification of a person shall be binding and controlling on all persons and shall apply irrespective of any contrary classification by the Internal Revenue Service, a court of competent jurisdiction or any other person or entity. (h) "Enrollment Date" means the first day of each Offering Period. (i) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (j) "Exercise Date" means the last day of each Offering Period. (k) "Fair Market Value" means the closing price for the Stock of the Company as reported on the Over The Counter Bulletin Board or, if that day is not a Trading Day, then on the latest previous Trading Day; or if not traded on the Over The Counter Bulletin Board, then the fair market value as determined by the Board. (l) "Offering Period" means the approximately one-year period commencing on the first Trading Day of each Plan Year and terminating on the last Trading Day of the same Plan Year. The beginning and ending dates and duration of Offering Periods may be changed pursuant to Section 4 of the Plan. (m) "Plan Year" means the 12-month period commencing on February 1 of each year and ending on the following January 31. (n) "Purchase Price" means the per share price paid by a Participant to acquire Stock under this Plan. The Purchase Price shall be determined by the Committee in its discretion prior to the commencement date of each Offering Period; provided, however, in no event may the Purchase Price be less than: 1) an amount equal to 85 percent of the Fair Market Value of a share of Stock on the Enrollment Date or 85 percent of the Fair Market Value of a share of Stock on the Exercise Date, if lower; or 2) the par value of the Company's Stock. (o) "Stock" means the Company's common stock, $1.00 par value, and such other securities as may be substituted for Stock pursuant to Section 16 hereof. (p) "Subsidiary" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of the corporations (other than the last corporation in the unbroken chain) owns stock possessing 50 percent or more of the total combined voting power of all classes of stock in one of the other corporations in the chain. 2 (q) "Trading Day" means a day on which the Over The Counter Bulletin Board is open for trading; or if not traded on the Over The Counter Bulletin Board, each day specified by the Board in its discretion. 3. Eligibility. (a) All Employees (as determined in accordance with Section 2(h) hereof) of the Company and its Subsidiaries on a given Enrollment Date shall be eligible to participate in the Plan, subject to Section 5(a). (b) Any provisions of the Plan to the contrary notwithstanding, no Employee shall be granted an option under the Plan (i) to the extent that, immediately after the grant, such Employee (or any other person whose Stock would be attributed to such Employee pursuant to Section 424(d) of the Code) would own capital stock and/or hold outstanding options to purchase such stock possessing five percent or more of the total combined voting power or value of all classes of the capital stock of the Company or of any Subsidiary, (ii) to the extent that his or her rights to purchase stock under all employee stock purchase plans of the Company and its Subsidiaries accrue at a rate which exceeds $25,000 worth of stock (determined at the fair market value of the shares at the time such option is granted) for each calendar year in which such option is outstanding at any time. (c) All participants in the Plan shall have equal rights and privileges (subject to the terms of the Plan) with respect to options outstanding during any given Offering Period. 4. Offering Periods. The Plan shall have consecutive Offering Periods with an initial Offering Period commencing on the first Trading Day in February 2004 and terminating in the last Trading Day of January 2005. The Committee shall have the power to change the beginning date, ending date and duration of Offering Periods with respect to future offerings without shareholder approval if such change is announced at least five days prior to the scheduled beginning of the first Offering Period to be affected thereafter, provided that Offering Periods will in all cases comply with applicable limitations under Section 423(b)(7) of the Code. 5. Participation. (a) Any person who will be an eligible Employee on a given Enrollment Date may become a participant in the Plan by enrolling in the manner designated by the Committee. (b) Payroll deductions for a participant shall commence on the first payroll following the Enrollment Date and shall end on the last payroll in the Offering Period to which such authorization is applicable, unless sooner terminated by the participant as provided in Section 10 hereof. 6. Payroll Deductions. (a) At the time a participant enrolls, he or she shall elect to have payroll deductions made on each payday during the Offering Period in a regular amount, expressed as a fixed dollar 3 amount, no less that any minimum deduction specified by the Committee and not to exceed $21,250. (b) All payroll deductions made for a participant shall be credited to his or her Account under the Plan. A participant may not make any additional payments into such Account. (c) A participant may discontinue or suspend his or her participation in the Plan as provided in Section 10 hereof. Unless otherwise authorized by the Committee, a participant may not change his or her payroll deduction rate during any Offering Period. Absent Committee authorization, any change in the rate shall be effective as of the next Offering Period. A participant's enrollment election shall remain in effect for successive Offering Periods unless terminated as provided in Section 10 hereof. (d) The foregoing notwithstanding, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 3(b) hereof, a participant's payroll deductions may be terminated at such time during any Offering Period which is scheduled to end during the current calendar year if the aggregate of all payroll deductions accumulated with respect to the current calendar year equals $25,000 (or such other limit as may apply under Code Section 423(b)(8)). Payroll deductions shall recommence at the rate provided in such participant's subscription agreement (as previously on file or as changed in accordance with Section 6(c)) at the beginning of the next Offering Period which is scheduled to begin in the following calendar year, unless terminated by the participant as provided in Section 10 hereof. (e) The Company and each Subsidiary is authorized to withhold from any payment to be made to a participant, including any payroll and other payments not related to the Plan, amounts of withholding and other taxes due in connection with any transaction under the Plan, including any disposition of Stock acquired under the Plan, and a participant's enrollment in the Plan will be deemed to constitute his or her consent to such withholding. At the time of a participant's exercise of an option or disposition of Stock acquired under the Plan, the Company may require the participant to make other arrangements to meet tax withholding obligations as a condition to exercise of rights or distribution of Stock or cash from the participant's Account. In addition, a Participant may be required to advise the Company of sales and other dispositions of Stock acquired under the Plan in order to permit the Company to comply with tax laws and to claim any tax deductions to which the Company may be entitled with respect to the Plan. 7. Grant of Option. On the Enrollment Date of each Offering Period, each eligible Employee participating in such Offering Period shall be granted an option to purchase on the Exercise Date of such Offering Period, at the applicable Purchase Price, up to a number of shares of Stock determined by dividing such Employee's payroll deductions accumulated prior to such Exercise Date and retained in the Participant's Account as of the Exercise Date by the applicable Purchase Price, provided that such purchase shall be subject to the limitations set forth in Sections 3(b) and 12 hereof. Exercise of the option shall occur as provided in Section 8 hereof, unless the participant has withdrawn pursuant to Section 10 hereof. 4 8. Exercise of Option. Each participant's option for the purchase of Stock shall be exercised automatically on the Exercise Date, and the maximum number of shares subject to option shall be purchased for such participant at the applicable Purchase Price with the accumulated payroll deductions in his or her Account. Shares purchased shall include fractional shares. During a participant's lifetime, a participant's option to purchase shares hereunder is exercisable only by him or her. 9. Delivery of Shares; Participant Accounts. (a) At or as promptly as practicable after the Exercise Date for an Offering Period, the Company will deliver the shares of Stock purchased to the Custodian for deposit into the participant's Account. (b) Cash dividends on any Stock credited to a participant's Account will be disbursed by the Custodian as a cash dividend. (c) Each participant will be entitled to vote the number of shares of Stock credited to his or her Account (including any fractional shares credited to such Account) on any matter as to which the approval of the Company's shareholders is sought. If a participant does not vote or grant a valid proxy with respect to shares credited to his or her Account, such shares will be voted by the Custodian in accordance with any stock exchange or other rules governing the Custodian in the voting of shares held for customer accounts. Similar procedures will apply in the case of any consent solicitation of Company shareholders. 10. Withdrawal or Suspension of Payroll Deductions or Shares; Termination of Employment. (a) If a participant terminates his or her payroll deduction rate during an Offering Period, the cash balance contributed for the month shall be refunded (without interest) as soon as practicable. Payroll deductions shall NOT automatically resume at the beginning of the succeeding Offering Period unless such individual re-enrolls in the plan. (b) If a participant suspends his or her payroll deduction rate during an Offering Period, the cash balance will remain in his or her Account until the end of the Offering Period. The Participant's option for the purchase of shares shall then be exercised automatically on the Exercise Date, and the maximum number of shares subject to option shall be purchased for such participant at the applicable Purchase Price with the accumulated payroll deductions in his or her Account. Shares purchased shall include fractional shares. Payroll deductions shall NOT automatically resume at the beginning of the succeeding Offering Period unless such individual re-enrolls in the plan. (c) Upon a participant's ceasing to be an Employee for any reason (including upon the participant's death), he or she shall be deemed to have elected to withdraw from the Plan and the payroll deductions credited to such participant's Account during the Offering Period but not yet used to exercise the option shall be returned to such participant (without interest) as soon as practicable or, in the case of his or her death, to his or her estate, and such participant's option shall be automatically terminated. 5 (d) If a participant elects to withdraw shares of Stock from his or her Account, one or more certificates for whole shares shall be issued in the name of, and delivered to, the participant, with such participant receiving cash in lieu of fractional shares based on the Fair Market Value of a share of Stock on the date of withdrawal. If shares of Stock are transferred from a participant's Account to a broker-dealer or financial institution that maintains an account for the participant, only whole shares shall be transferred and cash in lieu of any fractional share shall be paid to such participant based on the Fair Market Value of a share of Stock on the date of transfer. A Participant seeking to withdraw or transfer shares of Stock must give instructions to the Custodian in such manner and form as may be prescribed by the Committee and the Custodian, which instructions will be acted upon as promptly as practicable. Withdrawals and transfers will be subject to any fees imposed in accordance with Section 10(f) hereof. (e) Upon a participant's ceasing to be an Employee for any reason, the Custodian will continue to maintain the participant's Account until such time as the participant withdraws or transfers all Stock in the Account. (f) Costs and expenses incurred in the administration of the Plan and maintenance of Accounts will be paid by the Company, including annual fees of the Custodian. The foregoing notwithstanding, the Custodian may impose or pass through a reasonable fee for the withdrawal of Stock in the form of stock certificates (as permitted under Section 10(d)), and reasonable fees for other services unrelated to the purchase of Stock under the Plan, to the extent approved in writing by the Company and communicated to participants. In no circumstance shall the Company pay any brokerage fees and commissions for the sale of Stock acquired under the Plan by a participant. 11. Interest. No interest shall accrue on the payroll deductions of a participant in the Plan. 12. Stock. (a) The maximum number of shares of Stock which shall be made available for purchase under the Plan shall be one hundred thousand (100,000) shares, subject to further adjustment as provided in Section 17 hereof. If, on a given Exercise Date, the number of shares with respect to which options are to be exercised exceeds the number of shares then available under the Plan, the Company shall make a pro rata allocation of the shares remaining available for purchase in as uniform a manner as shall be practicable and as it shall determine to be equitable. (b) The participant shall have no interest or voting right in shares purchasable upon exercise of his or her option until such option has been exercised. 13. Administration. (a) The Plan shall be administered by the Committee. The Committee shall have full and final authority to construe, interpret and apply the terms of the Plan, to determine eligibility and to adjudicate all disputed claims filed under the Plan. The Committee may, in its discretion, delegate authority to one or more persons acting on behalf of the Committee. Every finding, 6 decision and determination made by the Committee shall, to the full extent permitted by law, be final and binding upon all parties. The Committee shall be entitled to, in good faith, rely or act upon any report or other information furnished to him or her by any executive officer, other officer or employee of the Company, Subsidiary, the Company's independent auditors, consultants or any other agents assisting in the administration of the Plan. Members of the Committee and any officer or employee of the Company or its Subsidiary acting at the direction or on behalf of the Committee shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the extent permitted by law, be fully indemnified and protected by the Company with respect to any such action or determination. (b) The Custodian will act as custodian under the Plan, and will perform such duties as are set forth in the Plan and in any agreement between the Company and the Custodian. The Custodian will establish and maintain, as agent for each Participant, an Account and any sub-accounts as may be necessary or desirable for the administration of the Plan. 14. Transferability. Neither payroll deductions credited to a participant's Account nor any rights with regard to the exercise of an option or shares of Stock received under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way by the participant. Any such attempt at assignment, transfer, pledge or other disposition shall be without effect. 15. Use of Funds. All payroll deductions received or held by the Company or Subsidiary under the Plan may be used for any corporate purpose, and neither the Company nor any Subsidiary shall be obligated to segregate such payroll deductions. 16. Reports. An individual Account shall be maintained by the Custodian for each participant in the Plan. Statements of Account shall be given to each participant at least annually, the statements shall set forth the amounts of payroll deductions used to purchase shares, the Purchase Price and the number of shares purchased. 17. Adjustments Upon Changes in Capitalization, Dissolution, Liquidation, or Change in Control. (a) Changes in Capitalization. The Committee shall proportionately adjust the number of remaining shares available for purchase under the Plan and the price per share and the number of shares of Stock covered by each option under the Plan which has not yet been exercised for any increase or decrease in the number of issued shares of Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Stock, or other extraordinary corporate event which affects the Stock in order to prevent dilution or enlargement of the rights of participants. The determination of the Committee with respect to any such adjustment shall be final, binding and conclusive. 7 (b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Offering Period shall terminate immediately prior to the consummation of such proposed action, unless otherwise provided by the Committee. (c) Change in Control. In the event of a Change in Control, the Committee shall shorten the Offering Period then in progress by setting a new Exercise Date (the "New Exercise Date"). The New Exercise Date shall be before the date that will constitute the Change in Control. The Committee shall notify each participant that the Exercise Date for the participant's option has been changed to the New Exercise Date and that the participant's option shall be exercised automatically on the New Exercise Date, unless prior to such date the participant has withdrawn from the Offering Period as provided in Section 10 hereof. 18. Amendment or Termination. (a) The Board may at any time and for any reason terminate or amend the Plan. Except as provided in Section 17 hereof, no such termination can affect options previously granted, provided that an Offering Period may be terminated by the Board of Directors by shortening the Offering Period and accelerating the Exercise Date to a date not prior to the date of such Board action if the Board determines in its sole discretion that termination of the Plan is in the best interests of the Company and its shareholders. Except as provided in Section 17 and this Section 18, no amendment may make any change in any option theretofore granted which materially adversely affects the rights of any participant, and any amendment will be subject to the approval of the Company's shareholders not later than one year after Board approval of such amendment if such shareholder approval is required by any federal or state law or regulation or the rules of any stock exchange or automated quotation system on which the Stock may then be listed or quoted, or if such shareholder approval is necessary in order for the Plan to continue to meet the requirements of Section 423 of the Code, and the Board may otherwise, in its discretion, determine to submit any amendment to shareholders for approval. For the avoidance of doubt, any action to increase the number of shares to be made available for sale under the Plan shall always be subject to shareholder approval unless such increase is an adjustment as provided for in Section 17. (b) Without shareholder consent and without regard to whether any participant rights may be considered to have been "adversely affected," the Committee shall be entitled to change the Offering Periods, change the percentage applied to the Fair Market Value to determine the Purchase Price, limit the frequency and/or number of changes in the amount withheld during an Offering Period, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. Dollars, permit payroll withholding in excess of the amount designated by a participant in order to adjust for delays or mistakes in the Company's processing of properly completed withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Stock for each participant properly correspond with amounts withheld from the participant's compensation, and establish such other limitations or procedures as the Committee determines in its sole discretion are advisable and consistent with the Plan. Without limiting the generality of the foregoing, the Committee may, but shall not be required to, modify or eliminate grants to persons who are otherwise eligible to receive options under this Plan who are foreign nationals or employed outside the United States to recognize differences in local law, tax policy or custom. 8 19. Notices. All notices or other communications by a participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof. 20. Conditions Upon Issuance of Shares. The Company shall not be obligated to issue shares of Stock with respect to an option unless the exercise of such option and the issuance and delivery of such shares pursuant thereto shall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the Exchange Act, the Securities Act of 1933, as amended, all regulations promulgated there under, and the requirements of any stock exchange or automated quotation system upon which the shares may then be listed or quoted, and shall be further subject to the approval of counsel for the Company with respect to such compliance. 21. No Right to Options or to Employment. Participation in the Plan shall in no way constitute any form of agreement or understanding binding on the Company or any Subsidiary, express or implied, of continued employment for any length of time, nor shall participation in the Plan interfere in any way with the lawful rights of the actual employer to terminate the employment relationship, which rights are hereby reserved for that particular legal entity. 22. Limitations on Sales of Stock Purchased Under the Plan. The Plan is intended to provide common stock for investment and not for resale. The Company does not, however, intend to restrict or influence any participant in the conduct of his or her own affairs. A participant, therefore, may sell stock purchased under the Plan at any time, subject to compliance with any applicable Federal or state securities laws; provided, however, that because of certain Federal tax requirements, each participant will agree by entering the Plan, promptly to give the Company notice of any such stock disposed of within two years after the date of the grant of the applicable option, showing the number of such shares disposed of. THE INDIVIDUAL EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK. 23. Plan Effective Date and Shareholder Approval. The Plan shall become effective upon approval by the Company's shareholders by a vote sufficient to meet the requirements of Section 423(b)(2) of the Code at the next annual meeting of the shareholders to be held May 19, 2004, which is prior to the first Exercise Date. If the Plan is not approved by the Company's shareholders, then the cash balances credited to the Accounts of participants shall be returned to such participants (without interest) as soon as administratively practicable. 9 EX-5.1 4 c82128exv5w1.txt OPINION/CONSENT OF BLACKWELL SANDERS PEPER MARTIN EXHIBIT 5.1 2300 MAIN STREET SUITE 1000 KANSAS CITY, MO 64108 P.O. BOX 419777 KANSAS CITY, MO 64141-6777 TEL: (816)983-8080 WEBSITE: www.blackwellsanders.com January 16, 2004 Blue Valley Ban Corp 11935 Riley Overland Park, KS 66225 Ladies and Gentlemen: We have acted as counsel to Blue Valley Ban Corp, a Kansas corporation (the "Company"), in connection with the filing of a registration statement by the Company on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, registering 100,000 shares (the "Shares") of common stock of the Company, $1.00 par value per share, to be issued to eligible participants in accordance with the terms of the 2004 Employee Stock Purchase Plan (the "Plan") of Blue Valley Ban Corp. In connection with the foregoing, we have examined such documents, corporate records and other instruments as we have deemed necessary or appropriate in connection with this opinion. Based upon and subject to the foregoing, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, will be, legally issued, fully paid and non-assessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, EX-15.1 5 c82128exv15w1.txt LETTER FROM BKD, LLP ACKNOWLEDGING AWARENESS EXHIBIT 15.1 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D. C. 20549 We are aware that our reports dated October 24, 2003; July 25, 2003 and April 25, 2003 on our reviews of the interim financial information of Blue Valley Ban Corp for the periods ended September 30, 2003 and 2002; June 30, 2003 and 2002 and March 31, 2003 and 2002 and included in the Company's quarterly reports on Form 10-Q for the quarters then ended are incorporated by reference in this registration statement. Pursuant to Rule 436(c) under the Securities Act of 1933, this report should not be considered part of the registration statement prepared or certified by us within the meaning of Sections 7 and 11 of that Act. /s/ BKD, LLP Kansas City, Missouri January 14, 2004 EX-23.1 6 c82128exv23w1.txt CONSENT OF BKD, LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS The Board of Directors Blue Valley Ban Corp Overland Park, Kansas We consent to the incorporation by reference in this registration statement of Blue Valley Ban Corp on Form S-8 of our report, dated February 14, 2003 on our audits of the consolidated balance sheets of Blue Valley Ban Corp and subsidiaries as of December 31, 2002 and 2001, and the related consolidated statements of income, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2002, which report appears in the December 31, 2002 Annual Report on Form 10-K of Blue Valley Ban Corp. /s/ BKD, LLP Kansas City, Missouri January 14, 2004 -----END PRIVACY-ENHANCED MESSAGE-----