Securities Registration: Employee Benefit Plan (s-8)
May 26 2023 - 4:07PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on May 26, 2023
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HERITAGE COMMERCE CORP
(Exact Name of Registrant as Specified in its Charter)
| California |
77-0469558 |
| (State or Other Jurisdiction of |
(I.R.S. Employer Identification No.) |
| Incorporation or Organization) |
|
224 Airport Parkway
San Jose, California 95110
(Address of Registrant’s Principal Executive
Offices Including Zip Code)
Heritage Commerce Corp 2023 Equity Incentive
Plan
(Full title of Plan)
Lawrence D. McGovern
Executive Vice President and Chief Financial
Officer
224 Airport Parkway
San Jose, California 95110
(408) 947-6900
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code,
of Agent For Service)
With a copy to:
Mark
A. Bonenfant, Esq.
Buchalter
A Professional Corporation
1420 5th Avenue
Seattle, WA 98101
(206) 319-7052
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 ¨ |
|
Accelerated
filer x |
| Non-accelerated
filer ¨ (Do not check if a smaller reporting company) |
|
Smaller
reporting company ¨
Emerging
growth company ¨ |
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 pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
HERITAGE COMMERCE CORP
This Registration Statement
on Form S-8 is being filed by Heritage Commerce Corp, a California corporation (the “Company” or the “Registrant”)
to register 1,421,531 shares of common stock, no par value (the “Common Stock”) which may be acquired pursuant to the Company’s
2023 Equity Incentive Plan (the “Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the
information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under
the Securities Act of 1933 (“Securities Act”). In accordance with the rules and regulations of the Securities and Exchange
Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act.
| Item 2. | Registrant Information and Employee Plan Annual Information. |
The documents containing the
information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under
the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant
to Rule 424 under the Securities Act. Such documents, together with the documents incorporated by reference herein pursuant to Item
3 of Part II of this Registration Statement on Form S-8, constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act, and are available upon written request to: Corporate Secretary, Heritage Commerce Corp, 224 Airport Parkway, San
Jose, California 95110.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The Company incorporates by
reference the documents listed below and any future filings made with the Commission under Sections 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all such securities then remaining unsold (such documents, and the documents listed below, being hereinafter
referred to as “Incorporated Documents”):
All documents
subsequently filed with the Commission 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 to this Registration
Statement 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 part hereof from the date of filing of such
documents.
The Company is only incorporating
certain portions of its definitive proxy statement on Schedule 14A for its 2023 annual meeting of shareholders as described above and
is not incorporating by reference) any information furnished under items 2.02 or 7.01 (or corresponding information furnished under item
9.01 or included as an exhibit) in any past or future current report on Form 8-K, that, the Company may file or furnish with the
Commission, unless otherwise specified in such current report or in such form.
Any statement contained herein
shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any
subsequently filed Incorporated Document modifies or supersedes such statement. Any statement contained in an Incorporated Document shall
be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
| Item 4. | Description of Securities. |
Not Applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not Applicable.
| Item 6. | Indemnification of Directors and Officers. |
Section 317 of the California
General Corporation Law permits indemnification of directors, officers and employees of corporations under certain conditions and subject
to certain limitations. Article V of the Articles of Incorporation of the Company contains provisions limiting the monetary liability
of directors for breaches of the duty of care. Article VII of the Articles of Incorporation of the Company contains provisions that
authorize the Registrant to indemnify its directors, officers and employees to the fullest extent permitted, and in excess of that authorized,
under Section 317. Section 12 of the Company’s By-Laws provides for the indemnification of directors and officers to the
fullest extent permitted by law. The foregoing summaries are necessarily subject to the complete text of the statute and the Articles
and the By-Laws referred to above and are qualified in their entirety by reference thereto.
The Company also maintains
insurance policies which insure its officers and directors against certain liabilities.
The Company has entered into
agreements with its directors and its executive officers that require the Company to indemnify such persons to the fullest extent permitted
under California law against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses
of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party
by reason of the fact that such person is or was a director or an executive officer of the Company or any of its affiliated enterprises.
The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.
The Company intends to enter into indemnification agreements with any new directors and executive officers in the future.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
1. The
undersigned Registrant hereby undertakes:
(a) 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 this 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 percent 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 this Registration Statement or any
material change to such information in this Registration Statement; provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do
not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference
in this Registration Statement;
(b) 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; and
(c) 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.
2. 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 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.
3. Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the 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 Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 Company 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. All reports
and other documents subsequently filed by the Registrant pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange
Act prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters
all such securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part
hereof from the respective dates of filing of such reports and documents.
SIGNATURES
Pursuant to the requirements
of the Securities Act, 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 San Jose, State of California on this 26th day of May, 2023.
| |
HERITAGE COMMERCE CORP |
| |
|
| |
By: |
/s/ Robertson Clay Jones |
| |
|
Robertson Clay Jones |
| |
|
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robertson Clay Jones
and Lawrence D. McGovern, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution,
for him or her and in their name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement
(including post-effective amendments), and to sign any registration statement for the same offering covered by this Registration Statement
that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments
thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his, her, or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act, as amended, this Registration Statement has been signed by the following persons on May 26, 2023 in
the capacities indicated.
| Signature |
|
Title |
| |
|
|
| /s/ JULIANNE M. BIAGINI-KOMAS |
|
Director |
| Julianne M. Biagini-Komas |
|
|
| |
|
|
| |
|
|
| /s/
BRUCE H. CABRAL |
|
Director |
|
Bruce H. Cabral
|
|
|
| /s/ JACK W. CONNER |
|
Director and Chairman of the Board |
| Jack W. Conner |
|
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| |
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| |
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| /s/
JASON DINAPOLI |
|
Director |
| Jason
DiNapoli |
|
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| |
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| |
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|
| /s/ STEPHEN G. HEITEL |
|
Director |
| Stephen G. Heitel |
|
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|
|
| /s/ KAMRAN F. HUSAIN |
|
Director |
| Kamran F. Husain |
|
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| |
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|
| /s/ ROBERTSON CLAY JONES |
|
Director, President and Chief Executive Officer |
| Robertson Clay Jones |
|
(Principal Executive Officer) |
| |
|
|
| |
|
|
| /s/ LAWRENCE D. MCGOVERN |
|
Executive Vice President and Chief Financial |
| Lawrence D. McGovern |
|
Officer (Principal Financial and Accounting Officer) |
| |
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| /s/ MARINA H. PARK SUTTON |
|
Director |
| Marina H. Park Sutton |
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| /s/ LAURA RODEN |
|
Director |
| Laura Roden |
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| /s/ RANSON W. WEBSTER |
|
Director |
|
Ranson W. Webster |
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