SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SECOND
AMENDED AND RESTATED
APPLICATION FOR AN ORDER OF EXEMPTION PURSUANT
TO SECTIONS 6(c) AND 6(e) OF THE INVESTMENT
COMPANY ACT OF 1940 EXEMPTING APPLICANT FROM
CERTAIN PROVISIONS OF THAT
ACT
BEVERLY HILLS BANCORP INC.
Post Office Box 8280
Calabasas, California 91372
November 2, 2011
Communications, Notice and Order to:
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Please direct all communications regarding
this Application to:
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Copies to:
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Alan B. Spatz, Esq.
Alison M. Pear, Esq.
TroyGould PC
1801 Century Park East, Suite 1600
Los Angeles, CA 90067
(310) 789-1231
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Beverly Hills Bancorp Inc.
Post Office Box 8280
Calabasas, California 91372
Attention: William D. King
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This Document contains 14 pages.
1 of 14
UNITED STATES OF AMERICA
Before the
SECURITIES AND EXCHANGE COMMISSION
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IN THE MATTER OF:
Beverly Hills Bancorp Inc.
Post Office Box
8280
Calabasas, California 91372
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APPLICATION FOR AN ORDER OF
EXEMPTION PURSUANT TO
SECTIONS 6(c) AND 6(e) OF
THE
INVESTMENT COMPANY ACT OF
1940
EXEMPTING APPLICANT FROM
CERTAIN PROVISIONS OF THAT ACT
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Beverly
Hills Bancorp Inc., a Delaware corporation (
BHBC
), hereby requests that the Securities and Exchange Commission (the
Commission
) grant BHBC exemptive relief pursuant to Sections 6(c) and 6(e) of the Investment
Company Act (the
Act
) in accordance with the conditions described below.
BHBC requests exemptive
relief to the extent necessary to permit it to hold certain types of instruments that may be securities (as defined in Section 2(a)(36) of the Act), such as short-term U.S. government securities, certificates of deposit and deposit
accounts with banks that are insured by the FDIC, commercial paper rated A-1/P-1, shares of registered money market funds, and any instruments that are eligible for investment by money market funds consistent with rule 2a-7 under the Act
(collectively,
Permitted Securities
), without being required to register as an investment company under the Act. BHBC requests this relief in order to permit it to preserve the value of its assets for the benefit of its security
holders, and submits that this relief is necessary and appropriate for the public interest. BHBC requests this relief until the earlier of one year from the date of grant of such exemptive relief order or such time as BHBC would no longer be
required to register as an investment company under the Act. During the term of the proposed exemption, BHBC will comply with Sections 9, 17(a), 17(d) (subject to the modifications described below), 17(e), 17(f), 36 through 45, and 47 through 51 of
the Act and the rules thereunder.
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A.
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BHBC as a Bank Holding Company
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From its incorporation in 1996 until April 24, 2009, BHBC was a one-bank bank holding company that conducted its banking and lending operations through its wholly owned subsidiary First Bank of
Beverly Hills, a California banking corporation (the
Bank
). During this period, the Bank was the source of substantially all of BHBCs revenues and income.
As a result of downturns in the real estate market, in 2008 the Bank sustained substantial losses in its real estate loan and
mortgage-backed securities portfolios, and as of December 31, 2008, it no longer met applicable regulatory capital requirements. As a result, on February 13, 2009, the Federal Deposit Insurance Corporation (
FDIC
) and the
California Department of Financial Institutions (the
CDFI
) issued an Order to Cease and Desist requiring the Bank to increase its regulatory capital within 60 days.
Later, on April 15, 2009, BHBC entered into a written agreement with the Federal Reserve Bank of San Francisco and the CDFI that
required BHBC to, among other things, submit an acceptable capital plan to maintain sufficient capital at BHBC and the Bank.
Because the Bank was unable to increase its regulatory capital within the specified time periods, on April 24, 2009, the CDFI closed the Bank and the FDIC was appointed as the Banks receiver.
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B.
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BHBCs Outstanding Securities
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BHBC has only one class of capital stock outstanding, its common stock. Until February 12, 2009, the common stock of BHBC was listed on the NASDAQ Global Select Market and registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as amended (the
Exchange Act
). On February 12, 2009, BHBC voluntarily delisted its common stock from the NASDAQ Global Select Market. On February 19, 2009, BHBC
deregistered its common stock under Section 12(g) of the Exchange Act and on March 13, 2009, suspended its reporting obligations under Section 15(d) of the Exchange Act. As such, BHBC is no longer subject to the reporting requirements
of the Exchange Act. The common stock is traded on the Pink Sheets, through no action of BHBC. As of September 30, 2011, BHBC had 78 holders of record.
BHBC has options outstanding under two equity incentive plans, the Amended and Restated 1999 Equity Participation Plan of Wilshire Financial Services Group Inc. (the
1999 Plan
) and the
2002 Equity Participation Plan (the
2002 Plan
, and together with the 1999 Plan, the
Plans
), established in 1999 and 2002, respectively. All outstanding awards under the Plans were granted prior to the
FDICs appointment as receiver for the Bank.
As of September 30, 2011, the only options outstanding under the 2002
Plan were options to purchase 137,333 shares of BHBC common stock, all of which were held by four
persons, each of whom is a director and/or officer of BHBC. BHBC will not issue any additional awards under the 2002 Plan. The last award of
options under the 2002 Plan was made on December 4, 2008.
The 1999 Plan expired on September 30, 2009. As of September
30, 2011 the only options outstanding under the 1999 Plan were options to purchase 32,667 shares of BHBC common stock, all of which were held by one director of BHBC. The last award of options under the 1999 Plan was made on April 23, 2003.
In addition, BHBCs four directors have stock appreciation rights (SARs) with respect to 120,000 shares of common
stock. These rights were issued prior to 2008 and are payable only in cash.
The Plans and the SARs may be deemed to be a
joint enterprise or other joint arrangement or profit-sharing plan within the meaning of Section 17(d) of the Act and Rule 17d-1 thereunder. Because the Plans were established and the SARs were issued when BHBC was an operating
company, to the extent that there are existing rights under the Plans or pursuant to the SARs, BHBC seeks an exception, to the extent necessary, from Section 17(d) to honor these outstanding awards.
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C.
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BHBC Post Bank Holding Company Business and Management
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Since the Bank was placed into receivership, BHBC has had no active business or operations. Within several months of the receivership, BHBC terminated all employees, and since that time has paid two
consultants on an hourly basis primarily for administrative and accounting services. BHBC does not maintain an office. BHBC is managed by its four member board of directors (
Board of Directors
).
Since the Bank was placed into receivership, the Board of Directors has been evaluating a course of action for BHBC, and has considered
various alternatives, including liquidation and acquisition of an operating business, while preserving its assets. However, as discussed in greater detail below, because of BHBCs financial condition and contingent liabilities, pursuing these
courses of action has not been feasible.
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D.
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BHBC Financial Condition
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Negative Net Worth
. As of September 30, 2011, on a consolidated basis, for financial reporting purposes BHBC has assets of $11.9 million, liabilities of $38.4 million, and a stockholders
equity of negative ($26.5 million).
Assets
. On a non-consolidated basis, BHBCs assets total approximately $10.3
million, and since the receivership of the Bank, these assets have consisted almost exclusively of checking accounts at commercial banks and shares of the Vanguard Short-Term Investment Grade Fund (Admiral Shares) (the
Vanguard
Fund
). Other than the shares of the Vanguard Fund, BHBC had not invested in any other securities since the receivership of the Bank. In connection with this request for exemptive relief, BHBC has liquidated the Vanguard Fund and invested
the proceeds in Permitted Securities.
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In addition, BHBC has several direct or indirect wholly owned subsidiaries: Wilshire
Acquisitions Corporation, WFC Inc., BH Commercial Capital I, Inc., BH Commercial Capital II, Inc., Wilshire Mortgage Funding Company IV, Inc., Wilshire Mortgage Funding Company V, Inc., Wilshire Mortgage Funding Company V, Inc., Wilshire Ventures
PFE, Inc., and FBBH Investment Services Corporation. None of these subsidiaries has any ongoing business or operations. As of September 30, 2011, only the following subsidiaries held any assets (excluding investments in other BHBC subsidiaries)
(collectively, the
Subsidiary Assets
):
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Wilshire Acquisitions Corporation has assets with a book value of $151,732, consisting of accrued interest ($36,172) and prepaid expenses ($115,560)
related to the Wilshire Acquisitions Trust I (described below).
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WFC Inc. has assets with a book value of $377,250, consisting of cash ($7,120), approximately 19 loans consisting of small consumer and residential
mortgage loans (all of which were originated prior to the Banks receivership), with an aggregate principal amount of $377,000 outstanding (recorded at a discounted book value of $362,611) and prepaid expenses ($7,519).
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BH Commercial Capital I, Inc., has assets with a book value of $1,084,799, consisting of two secured commercial real estate loans (both of which were
originated prior to the Banks receivership) with an aggregate principal amount of $1,380,000 outstanding (recorded at a discount of $1,084,799), and no accrued interest.
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As discussed below, BHBC also directly owns the common securities of two subsidiary trusts, Beverly Hills Statutory Trust 2006 and
Beverly Hills Statutory Trust II, and indirectly owns through one of its indirect wholly owned subsidiaries, Wilshire Acquisitions Corporation, the common securities of a third subsidiary trust, Wilshire Acquisitions Trust I. These trusts were
formed in connection with offerings of trust preferred securities in which the trust subsidiaries issued their common securities to BHBC, or Wilshire Acquisitions Corporation, as applicable, and their preferred securities to third party investors.
The subsidiary trusts then loaned all of the proceeds of the sales of these trust preferred securities to BHBC, or Wilshire Acquisitions Corporation, as applicable, in exchange for junior subordinated debentures, as discussed below under
Liabilities. Therefore, the subsidiary trusts have no assets aside from the junior subordinated debentures.
Liabilities
. BHBCs stated liabilities consist principally of $25.8 million of junior subordinated debentures issued to its
two direct trust subsidiaries and BHBCs subsidiaries stated liabilities consist principally of $10.3 million of junior subordinated debentures issued to its indirect trust subsidiary (discussed above under Assets). In the
aggregate, interest in an approximate amount of $900,000 accrues on a yearly basis pursuant to these three series of junior subordinated debentures. There is no public market for any of the junior subordinated debentures or the trust preferred
securities.
Under the terms of the junior subordinated debentures, BHBC may defer interest payments for up to 20 consecutive
quarters. During the period when interest payments are being deferred, interest continues to accrue, compounding quarterly, at an annual rate equal to the interest in effect for such period and must be paid at the end of the deferral period. On
January 29, 2009, BHBC elected to exercise this right. Therefore, no payments are due under the junior subordinated debentures until 2014. As of the date hereof, BHBC is not in default under the junior subordinated debentures and will not be in
default for failing to make payments under the junior subordinated debentures until the end of the deferral period.
Contingent Liabilities
. BHBC and its current and former directors and officers are subject to actual and potential contingent
liabilities of uncertain amounts related to claims associated with its former operations as well as regulatory and stockholder claims in connection with the failure of the Bank.
BHBC and its subsidiaries are or may become subject to litigation arising from its former operations. For example, BHBC is a defendant in
an action brought in February 2011 by the bankruptcy trustee of an affiliate of a borrower of BHBC to recover approximately $12 million in payments that allegedly constituted a fraudulent conveyance.
When the Bank was closed and put into receivership with the FDIC, the FDIC became successor to all of the Banks claims, including
claims against BHBC and the current or former officers and directors of BHBC and the Bank, for failure to maintain the net worth of the Bank, gross negligence and breach of fiduciary duty. In the savings and loan crisis of 1988 to 1994, which in
many ways resembles the current financial crisis, the FDIC in its capacity as receiver aggressively pursued officers and directors of banks. Between the years 1985 and 1992, the FDIC initiated claims against the former directors and officers of 24%
of the financial institutions that failed. FDIC Financial Institution Letter, FIL-87-92, (December 3, 1992).
Beyond the
claims that may be brought by the FDIC, the high-profile nature of the subprime crisis, the stock market meltdown and the governmental bailouts of financial institutions, other government agencies, such as the Department of Justice, the Office of
the Comptroller of the Currency, and even the Commission itself may pursue various forms of litigation or administrative action against parties associated with failed institutions. Actions brought by stockholders also present a significant source of
potential liability. There were 13 securities class action lawsuits filed against banking institutions during 2010. LaCroix, Kevin. A Closer Look at the 2010 Securities Lawsuit Filings,
http://www.dandodiary.com/2011/01/articles/securities-litigation/a-closer-look-at-the-2010-securities-lawsuit-filings/.
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In addition to any claims made directly against BHBC, under BHBCs Fourth Amended
and Restated Bylaws and indemnification agreements between BHBC and certain current and former directors and officers of BHBC, subject to certain conditions, BHBC is obligated to indemnify its current or former officers and directors, and is
permitted to indemnify any former employees or agents, who are made or are threatened to be made a party to a proceeding by reason of the fact that such person is or was a director, officer, employee or agent of BHBC or any subsidiary of BHBC,
including the Bank. BHBC is also obligated with respect to current and former officers and directors, and permitted with respect to employees and agents, to pay for or reimburse the reasonable expenses incurred with respect to such proceedings.
Consequently, BHBC is subject to indemnification and expense obligations in connection with various actions brought against its current and former directors, officers or employees.
These obligations to advance expenses to and indemnify may be deemed to be prohibited transactions under Section 17(a) of the Act.
Because the obligations to advance expenses to and indemnify arise from bylaw provisions adopted when BHBC was an operating company and are explicitly permitted under the General Corporation Law of the state of Delaware, in connection with the other
relief sought by this Application, BHBC seeks an exception, to the extent necessary, from Sections 17(a) of the Act to permit it to advance expenses and indemnify these persons as required by the Fourth Amended and Restated Bylaws, the
indemnification agreements or under applicable law.
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E.
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Objectives and Benefits to Security Holders
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BHBC is seeking exemptive relief so that it may hold its liquid assets in the form of Permitted Securities. BHBC believes that the public interest will be best served by preserving such value for its
security holders while its liabilities are resolved.
Section 3(a)(1)(A) of the Act defines an investment company as any issuer who is or holds itself out as being
engaged primarily . . . in the business of investing, reinvesting or trading in securities. Section 3(a)(1)(C) of the Act further defines investment company as any issuer which is engaged or proposes to engage in the
business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value exceeding 40% of the value of such issuers total assets (exclusive of Government securities and
cash items) on an unconsolidated basis.
Section 6(c) of the Act provides that the Commission may exempt any person,
security, or transaction from any provision of the Act if and to the extent that such exemption is necessary or appropriate in the public interest. Section 6(e) of the Act provides that [i]f in connection with
any . . . order under this section exempting any investment company from any provision of Section 7, the Commission deems it necessary or appropriate in the public interest or for the protection of investors that certain specified
provisions of this title pertaining to registered investment companies shall be applicable in respect of such company, the provisions so specified shall apply to such company and to other persons in their transactions and relations with such
company, as though such company were a registered investment company.
BHBC acknowledges that it may be deemed to fall
within one of the Acts definitions of an investment company. Accordingly, BHBC requests an exemption under Sections 6(c) and 6(e) from all provisions of the Act, subject to certain exceptions described below. BHBC requests an exemption until
the earlier of one year from the date of the requested order or such time as it would no longer be required to register as an investment company under the Act. BHBC believes that such relief is necessary or appropriate in the public interest,
consistent with the protection of investors and is consistent with the purposes of the Act.
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B.
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Consistency with Purposes of Act
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Consistency with Previous Commission Policies
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Relevant to the appropriateness of the requested relief is the exception from the definition of an investment company provided by Rule 3a-2 under the Act, which provides that an issuer is
deemed not to be an investment company pursuant to Section 3(a)(1)(A) during a period of time not to exceed one year;
Provided,
That the issuer has a
bona fide
intent to be engaged primarily, as soon as is
reasonably possible (in any event by the termination of such period of time), in a business other than that of investing, reinvesting, owning, holding or trading in securities.
Similarly, in interpreting Section 7(a) of the Act,
which excludes from the scope of Section 7(a) transactions which are merely incidental to [a companys] dissolution, the Commission has taken a position that companies are entitled to a certain amount of transition time without
being subject to the requirements of the Act. Transient Investment Companies, Investment Company Act Release No. 10,943 (Nov. 16, 1979) (Proposed Rule). The Commissions reasoning is that it may not be appropriate to require an
issuer to effect for only an interim period the significant operational modifications which may be necessary to comply with the Act. Id.
The Commission further stated that Rule 3a-2 creates a safe harbor for transient investment companies and is not intended to preclude a company from seeking either a no-action assurance from the
Commission staff or a Commission order of exemption. Transient Investment Companies, Investment Company Act Release No. 11,552 (Jan. 14, 1981) (Final Rule). In determining whether to grant relief for a company in an extended transition
period, the Commission considers such factors as (1) whether the failure of the company to become primarily engaged in a non-investment business or excepted business or to liquidate within one year was due to factors beyond its control;
(2) whether the companys officers and employees during that period tried, in good faith, to effect the companys investment of its assets in a non-investment business or excepted business or to cause the liquidation of the company;
and (3) whether the company invested in securities solely to preserve the value of its assets. See Medidentic Mortgage Investors, SEC No-Action Letter (pub. avail. May 23, 1984); See also LDX Group, Inc., SEC No-Action Letter (May 4,
1990).
BHBC believes that it meets these criteria, and thus similar relief is justified. Just like the situations addressed
by Rule 3a-2 and exemptions for companies in the process of dissolution, the public interest is not served by making BHBC comply with the requirements of the Act as it addresses its outstanding liabilities.
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(a)
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Factors Beyond Its Control; Good Faith Efforts
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BHBCs failure to become primarily engaged in a non-investment business or to liquidate within a year following the receivership of the Bank is due to factors beyond its control. BHBCs Board of
Directors has met 4 times in 2011 and has regularly considered the feasibility of liquidating or engaging in an operating non-investment business. The Board of Directors has concluded throughout this period that it is not feasible to commence or
acquire a non-investment business or liquidate as a result of BHBCs negative net worth and the uncertainties associated with actual and potential litigation and regulatory claims.
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As discussed above, BHBC has approximately $25.8 million of junior subordinated notes
associated with two trust preferred offerings by trust subsidiaries. This liability far exceeds BHBCs assets. However, because BHBC has been able to defer payments on these notes until 2014, BHBC is able to pay its current obligations when due
as they arise, and anticipates being able to do so through the date the junior subordinated notes become due. However, the Board of Directors believes it would be imprudent to utilize all or any significant part of BHBCs remaining assets in an
operating business until these liabilities are fully or substantially resolved. In this respect, BHBC is aware that a number of other bank holding companies, or former bank holding companies, have negotiated substantial debt reductions for early
payment of trust preferred securities (resulting in a parallel reduction of the related junior subordinated notes). BHBC is exploring whether that is possible with its trust preferred securities and has begun exchanging information with the holders
of the trust preferred securities with the intention that such information may encourage the holder to accept such a reduction.
Perhaps more importantly, BHBC has potential contingent liabilities relating to possible claims by regulatory agencies or stockholders.
If made, it would be likely that the amount claimed would be substantial and would almost certainly exceed the amount of BHBCs assets. Further, if these claims are made, BHBC would incur substantial costs in defense of those claims. As
disclosed above, BHBC is subject to a claim for approximately $12 million in connection with its former operations.
Finally,
as discussed above, BHBC has indemnification obligations associated with claims made directly against directors and officers of BHBC or the Bank. While BHBC maintains certain insurance policies that may provide coverage to BHBC for indemnification
payments, under the insurance policies, BHBC would be required, prior to any payment by the insurers, to absorb a deductible of $500,000 of each covered loss ($1,000,000 for securities law violation), assuming the carrier does not deny coverage on
the grounds of certain exclusions, limitations and loss participation provisions under such policies. If insurance coverage is denied, BHBC may not be reimbursed for any expenses or indemnification payments incurred.
These contingent liabilities make it impossible to liquidate BHBC and distribute its assets to creditors and make it imprudent to utilize
any substantial part of its assets in an operating business.
These circumstances are unlikely to change over the
requested one-year period in light of the nature of the actual and contingent liabilities. Though the Bank was placed into receivership over a year ago, claims can be (and often are) brought in excess of a year after a bank is put into receivership.
Under the Financial Institutions Reform, Recovery and Enforcement Act of 1989, the FDIC as receiver can make tort claims on behalf of the Bank for three years (or if longer, the period prescribed by applicable state law) from the date of the
FDICs appointment as receiver. 12 USC 1821(d)(14). For example, many of the claims against Cityfed Financial Corp. (discussed under Precedent below) were brought two to three years after its operating subsidiary was put into
receivership.
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(b)
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Securities Solely to Preserve the Value of Its Assets
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As indicated by the nature of BHBCs investment activities, BHBC has invested its liquid assets solely to preserve the value of its assets. Since the receivership of the Bank, BHBC had invested only
in bank checking accounts and the Vanguard Fund. In connection with this request for exemptive relief, BHBC has liquidated the Vanguard Fund and invested the proceeds in Permitted Securities. The limited investments BHBC has made since the
receivership indicate that its intention is not to profit from trading activities in securities, but is solely to hold securities in order to maintain the value of its assets.
While BHBCs subsidiaries hold certain loans (discussed above under Assets), these loans were acquired prior to the Bank
being put into receivership. Due to the characteristics of these loans and the current economic market, BHBC does not believe it can sell these assets except at a substantial discount to their value, if at all, and cannot foresee when such assets
may be salable. BHBC does not believe its current ownership of these assets is inconsistent with its purpose of preserving the value of its assets for the benefit of its security holders.
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2.
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Consistency with the Public Interest
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It is not in the public interest or necessary or appropriate for the protection of investors to subject BHBC to the requirements of the Act. BHBC is no longer subject to the reporting obligations under
the Exchange Act and does not intend to make any public offering of its securities. BHBCs common stock is not traded on any national securities exchange and is solely traded on the Pink Sheets, through no action of BHBC. The Pink Sheets
currently categorizes BHBCs common stock as in its Pink Sheets Limited category. The Pink Sheets warn investors that this category is designed for companies with financial reporting problems, economic distress, or in bankruptcy.
Therefore, any potential investors are given substantial warning that BHBC is in distress.
The public
interest is better served by allowing BHBC to continue to invest in Permitted Securities in order to preserve the value of its assets for the benefit of its security holders. Many operating companies use such securities as an alternative to bank
checking accounts and other forms of short term liquid investment because the investment return offered by such instruments is highly competitive compared to the returns offered by those other investments, the risk to principal is minimal and such
Permitted Securities are convenient to use. BHBC has a duty, as a matter of corporate law, to its stockholders to earn the highest possible investment return on its cash holdings consistent with the preservation of principal. If BHBC is permitted to
invest in the Permitted Securities, it will be able to maintain the value of its assets for its stockholders and creditors with minimal risk of loss of such assets.
BHBC believes
that its situation is substantially similar to that of Cityfed Financial Corp. (
Cityfed
). See Cityfed Financial Corp., Release Nos. IC-20074 (Feb. 15, 1994) (Notice); IC-20135 (Mar. 15, 1994) (Order). After the expiration of the
original exemptive order, Cityfed received seven subsequent exemptive orders in light of its continuing efforts to resolve its
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contingent and other liabilities. See Cityfed Financial Corp., Release Nos. IC-20877 (Feb. 2, 1995) (Notice); IC-20929 (Feb. 28, 1995) (Order); IC-21710 (Jan. 26, 1996) (Notice); 21761 (Feb. 21,
1996) (Order); IC-22473 (Jan. 17, 1997) (Notice); IC-22506 (Feb. 12, 1997) (Order); IC-23659 (Jan. 20, 1999) (Notice); IC-23692 (Feb. 12, 1999) (Order); IC-24252 (Jan. 13, 2000) (Notice); IC-24283 (Feb. 9, 2000) (Order); IC-24825 (Jan. 11, 2001)
(Notice); IC-24851 (Feb. 6, 2001) (Order); IC-25362 (Jan. 14, 2002) (Notice); IC-25411 (Feb. 6, 2002) (Order).
The Commission
has also granted relief similar to that requested by this Application on numerous occasions to companies similar to BHBC that needed extended periods to either obtain an operating business or liquidate because of factors beyond their control. See
First Coastal Corporation, SEC No-Action Letter (pub. avail. July 28, 1994) (Bank holding company liquidation in connection with settlement with FDIC regarding bank subsidiaries); Dean Witter Principal Guaranteed Fund III L.P., SEC No-Action
Letter (pub. avail. July 23, 1992) (Partnership liquidation waiting for redemption date pursuant to partnership agreement); LDX Group, Inc., SEC No-Action Letter (pub. avail. May 4, 1990) (Liquidation delayed because of court order
regarding agreement among shareholders); United Financial Group, Inc., Release Nos. IC-17395 (March 21, 1990) (Notice); IC-17441 (April 18, 1990) (Order) (Savings and loan holding company delayed in seeking an operating business because of pending
bankruptcy and unresolved issues with bank regulators).
IV.
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APPLICANTS CONDITIONS
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BHBC agrees that the requested order will be subject to the following conditions:
1. BHBC will not purchase or otherwise acquire any securities other than Permitted Securities, except that BHBC may acquire equity securities of an issuer that is not an investment company as
defined in Section 3(a) of the Act or is relying on an exclusion from the definition of investment company under Section 3(c) of the Act other than Section 3(c)(1) or 3(c)(7), in connection with the acquisition of an operating business
as evidenced by a resolution approved by BHBCs Board of Directors. BHBC may continue to hold the Subsidiary Assets.
2. BHBC will not hold itself out as being engaged in the business of investing, reinvesting, owning, holding, or trading in securities.
3. BHBC will not make any primary or secondary public offerings of its securities, and it will notify its stockholders
that an exemptive order has been granted pursuant to Sections 6(c) and 6(e) of the Act and that BHBC and other persons, in their transactions and relations with BHBC, are subject to Sections 9, 17(a), 17(d), 17(e), 17(f), 36 through 45, and 47
through 51 of the Act, and the rules thereunder, as if BHBC were a registered investment company, except as permitted by the order requested hereby.
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4. Notwithstanding Sections 17(a) and 17(d) of the Act, an affiliated person (as
defined in Section 2(a)(3) of the Act) of BHBC may engage in a transaction that otherwise would be prohibited by these sections with BHBC:
(a) if such proposed transaction is first approved by a bankruptcy court on the basis that (i) the terms thereof, including the consideration to be paid or received, are reasonable and fair to BHBC,
and (ii) the participation of BHBC in the proposed transaction will not be on a basis less advantageous to BHBC than that of other participants; and
(b) in connection with each such transaction, BHBC shall inform the bankruptcy court of (i) the identity of all of its affiliated persons who are parties to, or have a direct or indirect financial
interest in, the transaction; (ii) the nature of the affiliation; and (iii) the financial interests of such persons in the transaction.
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V.
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PROCEDURAL REQUIREMENTS
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The Board of Directors of BHBC has adopted the resolutions attached hereto as
Exhibit A
authorizing the execution and filing
of this Application.
Pursuant to Rule 0-2(c) under the Act, BHBC hereby states that the person signing and filing this
Application is fully authorized to do so; that under the provisions of the Articles of Incorporation, Bylaws or similar governing documents, as amended, as applicable, of BHBC, responsibility for the management of the affairs of BHBC is vested in
its Board of Directors or its officers, as the case may be; and that BHBC has complied with all requirements for the execution and filing of this Application in its name and on its behalf.
The verification required by Rule 0-2(d) is attached to this Application as
Exhibit B
.
Pursuant to Rule 0-2(f) under the Act, BHBC further states that:
(a) The address of BHBC is as follows:
Beverly Hills Bancorp Inc.
Post Office Box 8280
Calabasas, CA 91372
(b) Any questions regarding this Application should be directed to:
Alan B. Spatz, Esq.
Alison M. Pear, Esq.
TroyGould PC
1801 Century Park East, Suite 1600
Los Angeles, CA 90067
(310) 789-1231
For the
foregoing reasons, we respectfully request, on behalf of BHBC, that the SEC grant an exemptive order pursuant to Sections 6(c) and 6(e) of the Act, subject to terms and conditions set forth herein, without conducting a hearing. BHBC submits that the
relief requested will be consistent with the protection of investors.
This Application has been duly executed as of the
2nd day of November, 2011 by the undersigned officer of BHBC.
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BEVERLY HILLS BANCORP INC.
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By:
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/s/ William D. King
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Name:
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William D. King
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Title:
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Chief Executive Officer
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EXHIBIT A
BEVERLY HILLS BANCORP INC.
Resolutions of the Board of Directors
Authorization to Apply for Exemptive Relief
RESOLVED, that each of the Chief Executive Officer, the Chief Financial Officer, any Executive Vice President and the Secretary of the Company (each an
Authorized Officer
and
collectively, the
Authorized Officers
) be, and each of them hereby is, authorized, empowered and directed, to prepare, execute and submit to the Securities and Exchange Commission (the
SEC
), on behalf of the
Company, an application or applications seeking exemptive relief from such sections of the Investment Company Act of 1940, as amended (the
Act
), and the rules related thereto, as he deems necessary or appropriate for the Company
to be able to preserve the value of its assets without registering under the Act; and
RESOLVED FURTHER, that the Authorized
Officers be, and each of them hereby is, authorized, empowered and directed, to take such additional actions and to execute and deliver on behalf of the Company such other documents or instruments as they deem necessary or appropriate in furtherance
of the above resolution, including, without limitation, the preparation, execution and filing of any necessary or appropriate amendments or supplements to such applications, his authority therefore to be conclusively evidenced by the taking of any
such action or the execution or delivery of any such documents; and
RESOLVED FURTHER, that upon issuance of an order of
exemptive relief by the SEC in accordance with the terms and conditions of the above-described application, the Company is authorized to act in accordance with the provisions of such order.
General Enabling Resolution
RESOLVED, that the Authorized Officers be,
and each of them hereby is, authorized and directed, by and on behalf of the Company and in its name, to take all such other actions, to cause to be prepared and filed all such other documents, to make all expenditures and to execute all instruments
deemed by him or them to be necessary or appropriate in carrying out the purposes of all of the foregoing resolutions.
Ratifying
Resolution
RESOLVED FURTHER, that all actions by any and all officers and agents of the Company taken or performed prior
to the date hereof in respect of the matters referred to in the foregoing resolutions be and such actions here by are, approved, ratified and confirmed in all respects.
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EXHIBIT B
BEVERLY HILLS BANCORP INC.
VERIFICATION
The undersigned states that he has duly executed this application for exemptive relief pursuant to Sections 6(c) and 6(e) of the Act,
dated November 2, 2011 for and on behalf of BHBC; that he is Chief Executive Officer of BHBC; and that all action by stockholders, directors, and other bodies necessary to authorize the undersigned to execute and file such instrument has been taken.
The undersigned further states that he is familiar with such instrument, and the contents thereof, and that the facts therein set forth are true to the best of his knowledge, information and belief.
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BEVERLY HILLS BANCORP INC.
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By:
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/s/ William D. King
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Name:
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William D. King
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Title:
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Chief Executive Officer
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