Securities Registration: Employee Benefit Plan (s-8)
June 30 2020 - 01:01PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission June 30,
2020
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Bank
of Marin Bancorp
(Exact name of
Registrant as specified in its charter)
California
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20-8859754
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(State or other
jurisdiction of incorporation or organization)
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(I.R.S. Employer
Identification No.)
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504
Redwood Blvd., Suite 100, Novato, CA
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94947
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(Address of principal
executive office)
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(Zip Code)
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2020
Director Stock Plan
(Full title of the
plan)
Russell A.
Colombo
President and Chief Executive
Officer
Bank
of Marin Bancorp
504
Redwood Blvd., Suite 100
Novato,
CA 94947
(Name and address of
agent for service)
(415)
763-4520
(Telephone number,
including area code, of agent for service)
Copies
to:
Kenneth E.
Moore, Esq.
Michael K.
Staub, Esq.
Stuart | Moore |
Staub
641
Higuera Street, Suite 302
San Luis Obispo,
CA 93401
(805)
545-8590
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting
company,” and “emerging growth company” in Rule 12b-2 of
the Exchange Act.
Large accelerated filer
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o
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Accelerated
filer
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x
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Non-accelerated filer
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o
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Smaller reporting company
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x
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Emerging growth
company
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o
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If an emerging
growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities
Act. o
CALCULATION OF REGISTRATION
FEE
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Title of
securities
to be
registered
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Amount
to be
registered (1)
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Proposed
maximum
offering
price
per share (2)
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Proposed
maximum
aggregate
offering
price (2)
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Amount of
registration
fee
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Common Stock, no par value
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250,000
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$
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31.25
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$
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7,812,500
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$
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1,015
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(1) Pursuant to
Rule 416 promulgated under the Securities Act of 1933, as
amended (the “Securities Act”), this registration statement shall
also cover any additional shares of common stock of registrant
which become issuable under the plan to which this registration
relates by reason of any anti-dilution provisions, stock dividend,
stock split, recapitalization or any other similar transaction or
action taken effected without the receipt of consideration which
results in an increase in the number of the registrant’s
outstanding shares of common stock.
(2) Estimated
solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(h) under the
Securities Act. The computation with respect to unissued awards is
based upon the average high and low sale prices of the registrant’s
common stock as reported on the Nasdaq Capital Market on
June 26, 2020.
Part I Information
Required in the
Section 10(a) Prospectus
Item
1. Plan Information.
Bank of Marin
Bancorp will send or give the documents containing the information
specified in Item 1 and 2 to each participant in the 2020 Director
Stock Plan as specified by Rule 428(b)(1). In accordance
with the rules and regulations of the Securities and Exchange
Commission and the instructions to Form S-8, Bank of Marin
Bancorp is not filing such documents with the Securities and
Exchange Commission whether as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act. In addition, Bank of
Marin Bancorp will undertake to provide, upon request, a copy of
the annual report on Form 10-K for the year ended
December 31, 2019.
Item 2.
Registrant Information and Employee Plan Annual
Information.
See Discussion in
Item 1.
2
Part II Information
Required in the Registration Statement
Item 3.
Incorporation of Documents by Reference.
The following
documents filed with the Securities and Exchange Commission (the
“Commission”) are hereby incorporated by reference.
(a)
The registrant’s Annual Report on Form 10-K, for the fiscal
year ended December 31, 2019, filed on March 13, 2020,
Commission File Number: 001-33572;
(b)
The registrant’s Quarterly Report on Form 10-Q for the quarter
ended March 31, 2020, filed on May 8,
2020;
(c) The registrant’s current reports on
Form 8-K filed by the registrant with the SEC on
January 3, 2020,
January 27, 2020,
March 2, 2020,
March 24, 2020,
April 7, 2020,
April 20, 2020,
May 5, 2020, and
May 18, 2020 and the registrant’s
Definitive Proxy Statement on Form DEF 14A filed with the SEC
on April 7, 2020;
(d)
The description of the registrant’s common stock contained in the
registrant’s Registration Statement on Form S-4 filed with the
Commission under section 12(g) of the Securities Exchange Act
of 1934 (the “Exchange Act”) on September 15, 2017, including
any amendment or report filed for the purpose of updating such
description.
Additionally, all
documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of 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 be
part thereof from the date of filing of such documents.
Item 4.
Description of Securities.
Not
applicable.
Item 5.
Interests of Named Experts and Counsel.
Not
applicable.
Item 6.
Indemnification of Directors and Officers.
Bank of Marin
Bancorp and its subsidiary, Bank of Marin, are subject to the
California General Corporation Law (the “CGCL”), which provides a
detailed statutory framework covering indemnification of any
officer or other agent of a corporation who is made or threatened
to be made a party to any legal proceeding by reason of his or her
services on behalf of such corporation.
3
With respect to
indemnification, the CGCL provides that to the extent any officer,
director or other agent of a corporation is successful “on the
merits” in defense of any legal proceeding to which such person is
a party or is threatened to be made a party by reason of his or her
service on behalf of such corporation or in defense of any claim,
issue, or matter therein, such agent shall be indemnified against
expenses actually and reasonably incurred by the agent in
connection therewith, but does not require indemnification in any
other circumstance. The CGCL also provides that a corporation may
indemnify any agent of the corporation, including officers and
directors, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in a third party
proceeding against such person by reason of his or her services on
behalf of the corporation, provided the person acted in good faith
and in a manner he or she reasonably believed to be in the best
interests of such corporation. The CGCL further provides that in
derivative suits a corporation may indemnify such a person against
expenses incurred in such a proceeding, provided such person acted
in good faith and in a manner he or she reasonably believed to be
in the best interests of the corporation and its shareholders.
Indemnification is not available in derivative actions (i) for
amounts paid or expenses incurred in connection with a matter that
is settled or otherwise disposed of without court approval or
(ii) with respect to matters for which the agent shall have
been adjudged to be liable to the corporation unless the court
shall determine that such person is entitled to
indemnification.
The CGCL permits
the advancing of expenses incurred in defending any proceeding
against a corporate agent by reason of his or her service on behalf
of the corporation upon the giving of a promise to repay any such
sums in the event it is later determined that such person is not
entitled to be indemnified. Finally, the CGCL provides that the
indemnification provided by the statute is not exclusive of other
rights to which those seeking indemnification may be entitled, by
bylaw, agreement or otherwise, to the extent additional rights are
authorized in a corporation’s articles of incorporation. The law
further permits a corporation to procure insurance on behalf of its
directors, officers and agents against any liability incurred by
any such individual, even if a corporation would not otherwise have
the power under applicable law to indemnify the director, officer
or agent for such expenses.
The Bylaws of Bank
of Marin Bancorp and Bank of Marin contain provisions substantially
identical to the provisions of the CGCL.
Bank of Marin
Bancorp has entered into agreements to indemnify its directors and
executive officers. These agreements, among other
things, provide that Bank of Marin Bancorp will indemnify the
director or executive officer to the fullest extent permitted by
law for claims arising in his or her capacity as a director or
officer of Bank of Marin Bancorp or in connection with his or her
service at the request of Bank of Marin Bancorp for another
corporation or entity. The indemnification agreements
also establish the procedures that will apply in the event a
director or officer makes a claim for indemnification.
4
In addition, Bank
of Marin Bancorp and Bank of Marin maintain directors’ and
officers’ liability insurance policies.
Item 7.
Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits
*Filed
herewith
Item
9. Undertaking
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 of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. 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) (§230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective
registration statement.
5
(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 section do not apply if the registration
statement is on Form S-8 (§239.16b of this chapter), and the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 (15
U.S.C. 78m or 78o(d)) that are incorporated by reference in the
registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
6
SIGNATURES
In accordance with the
requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that the
Registrant meets all of the requirements of 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 Novato, State of California on June 30, 2020.
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BANK OF MARIN
BANCORP
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/s/ Russell A.
Colombo
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Russell A.
Colombo
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President and Chief Executive
Officer
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(Principal Executive
Officer)
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In accordance with the
requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the
capacities indicated on June 30, 2020.
Signature
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Capacity
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/s/ BRIAN M.
SOBEL
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Chairman of the
Board
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BRIAN M.
SOBEL
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/s/ RUSSELL A.
COLOMBO
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President and Chief
Executive Officer (Principal Executive Officer)
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RUSSELL A.
COLOMBO
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/S/ TANI
GIRTON
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Executive Vice
President and Chief Financial Officer (Principal Financial
Officer)
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TANI GIRTON
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/S/ DAVID A.
MERCK
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Vice President and
Financial Reporting Manager (Principal Accounting
Officer)
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DAVID A.
MERCK
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/S/ STEVEN I.
BARLOW
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Director
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STEVEN I.
BARLOW
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/S/ JAMES C.
HALE
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Director
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JAMES C.
HALE
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/s/ ROBERT
HELLER
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Director
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ROBERT
HELLER
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7
/s/ NORMA J.
HOWARD
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Director
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NORMA J.
HOWARD
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/S/ KEVIN R.
KENNEDY
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Director
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KEVIN R.
KENNEDY
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/s/ WILLIAM H.
MCDEVITT, JR.
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Director
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WILLIAM H. MCDEVITT,
JR.
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/S/ LESLIE
MURPHY
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Director
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LESLIE
MURPHY
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/S/ JOEL SKLAR,
MD
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Director
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JOEL SKLAR,
MD
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8
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