forms3.htm
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As filed with
the Securities and Exchange Commission October 27, 2009
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Registration
No. 333-_____
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SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________________
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
____________________________
BANK
OF MARIN BANCORP
(Exact name of
registrant as specified in its charter)
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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 Boulevard, Suite 100
Novato,
California
94947
(Address, Including
Zip Code, and Telephone Number, Including Area Code, or Registrant’s Principal
Executive Offices)
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
of communications to:
John
F. Stuart, Esq.
Kenneth
E. Moore, Esq.
Stuart
| Moore
641
Higuera Street
Suite
302
San
Luis Obispo, CA 93401
(805)
545-8590
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date
of this registration statement.
If
the only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
If
any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If
this form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If
this form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If
this form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to rule 413(b) under the Securities
Act, check the following box. ¨
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act (Check one):
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Large
accelerated filer ¨
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Accelerated
filer x
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Non-accelerated
filer ¨
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Smaller
reporting company ¨
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(Do not check
if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title
of each class of
securities
to be registered
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Amount
to
be Registered(1)(2)(3)
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Proposed
maximum
offering price per unit(1)(3)
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Common
Stock
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Preferred
Stock
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Warrants
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Units
(4)
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Total:
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$75,000,000(1)(2)
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$
4,185.00(5)
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(1)
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Not specified
as to each class of securities to be registered pursuant to General
Instruction II.D of Form S-3 under the Securities Act of 1933, as amended
(the “Securities Act”).
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(2)
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The
Registrant is hereby registering an additional indeterminate principal
amount and number of each identified class of its securities up to a
proposed maximum aggregate offering price of $75,000,000, which may be
offered from time to time in unspecified numbers at unspecified
prices. The Registrant has estimated the proposed maximum
aggregate offering price solely for the purpose of calculating the
registration fee pursuant to Rule 457(o) under the Securities
Act. Securities registered hereunder may be sold separately,
together or as units with other securities registered
hereby.
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(3)
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The
Registrant is hereby registering such indeterminate amount and number of
each identified class of the identified securities as may be issued upon
conversion, exchange, or exercise of any other securities that provide for
such conversion, exchange, or
exercise.
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(4)
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Each unit
will be issued under a unit agreement and will represent an interest in
two or more equity securities, which may or may not be separable from one
another.
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(5)
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Calculated in
accordance with Rule 457(o) under the Securities
Act.
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The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
The information in this prospectus is
not complete and may be changed. We may not sell these securities or
accept your offer to buy any of them until the registration statement filed with
the Securities and Exchange Commission relating to these securities has been
declared “effective” by the Securities and Exchange Commission. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any jurisdiction where such offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED October 27,
2009
PROSPECTUS
BANK
OF MARIN BANCORP
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
UNITS
Title, Amount and Offering Price of
Securities. We may offer, issue and sell from time to time,
together or separately, (a) shares of our common stock, (b) shares of our
preferred stock, which we may issue in one or more series, (c) warrants to
purchase our common or preferred securities and (d) units which may include a
combination of any of the other offered securities, up to a maximum aggregate
offering price of $75,000,000.
Prospectus
Supplements. We will provide the specific terms of these
securities in supplements to this prospectus. You should read this prospectus
and the accompanying prospectus supplement carefully before you make your
investment decision. This prospectus may not be used to sell
securities unless accompanied by a prospectus supplement or a free writing
prospectus.
Market and Market
Price. Our common stock is listed on the NASDAQ Capital
Market under the symbol “BMRC.” On October
22, 2009, the closing price of our common stock was $34.14 per
share. Each prospectus supplement will indicate if the securities
offered thereby will be listed on any securities exchange.
Underwriting. We
may offer securities through underwriting syndicates managed or co-managed by
one or more underwriters, or directly to purchasers. The prospectus
supplement for each offering of securities will describe in detail the plan of
distribution for that offering. For general information about the
distribution of securities offered, please see “Plan of Distribution” on page 13
in this prospectus.
Address and Telephone
Number. Our principal executive office is located at 504 Redwood Blvd, Suite
100, Novato, California 94947, and the telephone number is (415)
763-4520.
_______________________
Risk Factors. You
should carefully read and consider the risk factors contained in our Annual
Report on Form 10-K for the year ended December 31, 2008, other periodic reports
incorporated into this prospectus, prospectus supplements relating to specific
offerings of securities, and in other information that we file with the
Securities and Exchange Commission before you invest in our
securities.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus or
any accompanying prospectus supplement is truthful or complete. Any
representation to the contrary is a criminal offense.
________________________
These
securities will be equity securities in Bank of Marin Bancorp. These
securities will be unsecured and are not savings accounts, deposits or other
obligations of our bank subsidiary, and are not insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental agency. These
securities involve investment risks, including possible loss of
principal.
_________________________
The date of this
prospectus is October 27, 2009
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This prospectus is
part of a registration statement we filed with the Securities and Exchange
Commission, or the SEC, using a “shelf” registration process. Under this shelf
registration process, we may, from time to time, offer and sell, in one or more
offerings, the securities described in this prospectus.
The registration
statement containing this prospectus, including the exhibits to the registration
statement, provides additional information about us and the securities offered
under this prospectus. The registration statement, including the exhibits and
the documents incorporated herein by reference, can be read on the SEC website
or at the SEC offices mentioned under the heading “Where You Can Find More
Information” and “Incorporation by Reference.”
We
will provide a prospectus supplement containing specific information about the
terms of a particular offering by us. The prospectus supplement may add, update
or change information in this prospectus. If the information in this prospectus
is inconsistent with a prospectus supplement, you should rely on the information
in that prospectus supplement. You should read both this prospectus and any
prospectus supplement. See “Where You Can Find More Information” for more
information.
In
this prospectus, “Bank of Marin Bancorp,” the “Company,” “we,” “our,” “ours,”
and “us” refer to Bank of Marin Bancorp, which is a bank holding company
headquartered in Novato, California, and its subsidiary on a consolidated basis,
unless the context otherwise requires. References to “Bank of Marin” mean Bank
of Marin, which is our bank subsidiary. The website for Bank of Marin
Bancorp and Bank of Marin is www.bankofmarin.com. Information
on the website does not constitute part of this prospectus, unless specifically
incorporated by reference.
We
have not authorized any dealer, salesman or other person to give any information
or to make any representation other than those contained or incorporated by
reference in this prospectus or any prospectus supplement. You must not rely
upon any information or representation not contained or incorporated by
reference in this prospectus or any prospectus supplement. This prospectus and
any prospectus supplement do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the registered securities to which
they relate, nor do this prospectus and any prospectus supplement constitute an
offer to sell or the solicitation of an offer to buy securities in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the information
contained in this prospectus or any prospectus supplement is accurate on any
date subsequent to the date set forth on the front of such document or that any
information we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though this
prospectus and any prospectus supplement is delivered or securities are sold on
a later date.
FORWARD-LOOKING STATEMENTS
This prospectus and
the documents incorporated by reference contain statements that are considered
“forward looking statements” within the meaning of United States securities
laws. In addition, Bank of Marin Bancorp and its management may make other
written or oral communications from time to time that contain forward-looking
statements. Forward-looking statements, including statements about industry
trends, management’s future expectations and other matters that do not relate
strictly to historical facts, are based on assumptions by management, and are
often identified by such forward-looking terminology as “expect,” “look,”
“believe,” “anticipate,” “estimate,” “seek,” “may,” “will,” “trend,” “target,”
and “goal” or similar statements or variations of such terms. Forward-looking
statements may include, among other things, statements about Bank of Marin
Bancorp’s confidence in its strategies and its expectations about financial
performance, market growth, market and regulatory trends and developments,
acquisitions and divestitures, new technologies, services and opportunities and
earnings.
Forward-looking
statements are subject to various risks and uncertainties, which change over
time, are based on management’s expectations and assumptions at the time the
statements are made, and are not guarantees of future results. Management’s
expectations and assumptions, and the continued validity of the forward-looking
statements, are subject to change due to a broad range of factors affecting the
national and global economies, the equity, debt, currency and other financial
markets, as well as factors specific to Bank of Marin Bancorp and its
consolidated subsidiary, Bank of Marin.
Actual outcomes and
results may differ materially from what is expressed in our forward-looking
statements and from our historical financial results due to the factors
discussed elsewhere in this prospectus or disclosed in our other SEC filings.
Forward-looking statements should not be relied upon as representing our
expectations or beliefs as of any date subsequent to the time this prospectus is
filed with the SEC. Bank of Marin Bancorp undertakes no obligation to revise the
forward-looking statements contained in this prospectus to reflect events after
the time it is filed with the SEC. The factors discussed herein, in our Annual
Report on Form 10-K for the year ended December 31, 2008, any other periodic
report incorporated by reference herein, and any future prospectus supplement
are not intended to be a complete summary of all risks and uncertainties that
may affect our businesses. Though we strive to monitor and mitigate risk, we
cannot anticipate all potential economic, operational and financial developments
that may adversely impact our operations and our financial results.
Forward-looking
statements should not be viewed as predictions, and should not be the primary
basis upon which investors evaluate Bank of Marin Bancorp. Any investor in Bank
of Marin Bancorp should consider all risks and uncertainties disclosed in our
SEC filings described below under the heading “Where You Can Find More
Information,” all of which are accessible on the SEC’s website at
http://www.sec.gov.
An
investment in our securities involves significant risks. You should carefully
consider the risks and uncertainties and the risk factors set forth in the
documents and reports filed with the SEC that are incorporated by reference into
this prospectus, as well as any risks described in any applicable prospectus
supplement, before you make an investment decision regarding the securities.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect our business operations.
On
July 1, 2007, a bank holding company reorganization was completed whereby Bank
of Marin Bancorp became the parent holding company for Bank of Marin, its sole
subsidiary. Upon formation of the holding company, Bank of Marin Bancorp became
subject to regulation under the Bank Holding Company Act of 1956, as amended,
which subjects it to Federal Reserve Board reporting and examination
requirements. Bank of Marin was incorporated in August 1989, received its
charter from the California Superintendent of Banks (now the California
Department of Financial Institutions) and commenced operations in January 1990.
Bank of Marin is an insured bank under the Federal Deposit Insurance
Act.
Virtually all of
our business is conducted through our sole subsidiary, Bank of
Marin. We operate through thirteen branch offices in Marin and
southern Sonoma counties, north of San Francisco, California. We also
have a loan production office in San Francisco. Our customer base is made up of
business and personal banking relationships from the communities near the branch
office locations. Our business banking focus is on small to
medium-sized businesses, professionals and not-for-profit
organizations.
We
offer a broad range of commercial and retail lending programs designed to meet
the needs of our target markets. These include commercial loans and
lines of credit, construction financing, consumer loans, and home equity lines
of credit. Through a third party vendor, we offer a proprietary Visa®
credit card combined with a rewards program to our customers, as well as a
Business Visa® program for business and professional customers. We also offer a
cash management deposit sweep product to business clients through a third party
vendor.
We
offer a variety of checking and savings accounts, and a number of time deposit
alternatives, including interest bearing and non-interest bearing personal and
business checking accounts and time certificates of deposit. In March
2008, we introduced a new deposit product, Certificate of Deposit Account
Registry Service (“CDARS®”). CDARS® is a network through which we offer full
FDIC insurance coverage in excess of the regulatory maximum by placing deposits
in multiple banks participating in the network. We also offer remote
deposit capture and direct deposit of payroll, social security and pension
checks. A valet deposit pick-up service is available to our
professional and business clients. Automatic teller machines
(“ATM's”) are available at each branch location and at the Marin Airporter
terminal in Larkspur.
Our ATM network is
linked to the STAR, PLUS and NYCE networks. In January 2009, we began
offering free access to a network of nation-wide surcharge-free ATM’s called
MoneyPass. We also offer our depositors 24-hour access to their
accounts by telephone and through our internet banking products available to
personal and business account holders.
We
offer Wealth Management Services which include customized investment portfolio
management, financial planning, trust administration, estate settlement and
custody services. We also offer 401(k) plan services to small and
medium businesses through a third party vendor.
We
offer branch-based Private Banking as a natural extension of our services. Our
Private Banking includes deposit services, loans, investment management, trust
administration, financial planning and advice on charitable giving.
As
of September 30, 2009, we had consolidated total assets of $1.1 billion, total
gross loans of $919.8 million, total deposits of $949.3 million and
shareholder’s equity of $107.4 million.
Unless otherwise
set forth in a prospectus supplement, we intend to use the net proceeds from the
sale of securities covered by this prospectus for general corporate
purposes. We may temporarily invest funds that we do not immediately
need for these purposes in short-term marketable securities or use them to make
payments on our borrowings.
SUMMARY
OF SECURITIES OFFERED BY THIS PROSPECTUS
We may offer any of the following securities
from time to time:
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Warrants to
purchase common stock or preferred stock;
and
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When we use the term “securities” in this
prospectus, we mean any of the securities we may offer with this prospectus,
unless we say otherwise. The total dollar amount of all securities
that we may issue will not exceed $75,000,000. This prospectus,
including the following summary of the securities that may be issued, describes
the general terms that may apply to the securities. The specific
terms of any particular securities that we may offer will be described in a
separate prospectus supplement.
Common
Stock
We
may offer shares of our common stock, which is currently traded on the
NASDAQ Capital Market under the symbol “BMRC.” See “Description
of Common Stock” beginning on page 5 of this prospectus.
Preferred
Stock
We
may offer our preferred stock in one or more series. For any particular series
we offer, the applicable prospectus supplement will describe the specific
designation; the aggregate number of shares offered; the rate and periods, or
the manner of calculating the rate and periods, for dividends, if any; the
stated value and liquidation preference amount, if any; the voting rights, if
any; the terms on which the series will be convertible into or exchangeable for
other securities or property, if any; the redemption terms, if any; and any
other specific terms that apply to that series of preferred stock. See
“Description of Preferred Stock” beginning on page 9 of this
prospectus.
Warrants
We
may offer warrants to purchase our common stock or preferred
stock. For any particular warrants we offer, the applicable
prospectus supplement will describe the underlying security; the expiration
date; the exercise price or the manner of determining the exercise price; the
amount and kind, or the manner of determining the amount and kind, of securities
to be delivered by us upon exercise; and any other specific terms. We may issue
the warrants under warrant agreements between us and one or more warrant agents.
See “Description of Warrants” beginning on page 11 of this
prospectus.
Units
We
may offer units comprising one or more of the securities described in this
prospectus in any combination. Each unit will be issued so that the
holder of the unit also is the holder of each security included in the
unit. For any particular units we offer, the applicable prospectus
supplement will describe the specific terms relating to the offering and units,
including, the designation and terms of the units and of the securities
comprising the units, and whether and under what circumstances those securities
may be held or transferred separately; any provision for the issuance, payment,
settlement, transfer or exchange of the units or of the securities comprising
those units; and whether the units will be issued in fully registered or global
form. See “Description of Units” beginning on page 13 of this
prospectus.
Listing
If
any securities we offer are to be listed or quoted on a securities exchange or
quotation system, the applicable prospectus supplement will state such
information.
DESCRIPTION OF COMMON STOCK
General
The discussion
below is a summary of various rights of shareholders, it is not intended to be a
complete statement of all rights. The discussion is qualified in its
entirety by reference to the Articles of Incorporation of the Company, the
Company’s Bylaws as well as the provisions of California and federal
law.
Authorized Capital
Stock. The Company’s Articles of Incorporation authorize the
issuance of up to 15,000,000 shares of Company common stock, no par value, of
which 5,226,993 shares were outstanding as of September 30, 2009, and 5,000,000
shares of Company preferred stock, no par value, of which no shares are
presently issued and outstanding.
Issuance of
Stock. Under the Company’s Articles of Incorporation, shares
of common stock or preferred stock may be issued from time to time by the board
of directors without the approval of the shareholders.
Liquidation
Rights. In the event of liquidation, holders of common stock
of the Company are entitled to rights to assets distributable to shareholders on
a pro rata basis after satisfaction of liabilities and rights of holders of
preferred stock, if any.
Redemption
Rights. The Company is empowered by California law to buy its
shares of stock from its shareholders at the mutual accord of the shareholder
and the Company.
Preemptive
Rights. The Company’s Articles of Incorporation do not provide
for preemptive rights.
Voting
Rights. Each share of Company common stock is entitled
to one vote per share.
Cumulative voting
in the election of directors of the Company may apply to elections of directors
by virtue of California law. Cumulative voting entitles a shareholder
providing the proper prior notice to vote as many votes as equals the number of
shares the shareholder owns multiplied by the number of directors to be
elected. A shareholder may cast all his votes for a single candidate
or distribute such votes among any or all of the candidates.
Shareholder Action without a
Meeting. The Company’s Bylaws provide that any action that is
required or permitted to be taken by shareholders at an annual or special
meeting may be taken by a written consent signed by the same number of
shareholders that would be required to approve a measure presented at an annual
or special meeting.
Shareholder Vote on Business
Combinations. In general, approval of a business combination
(a merger or sale of assets) involving the Company requires the approval of a
majority of the Board of Directors and a favorable vote of a majority of the
outstanding shares.
Special Meetings of
Shareholders. The Company’s Bylaws provide that a special
meeting of the shareholders may be called by, among others, holders of 10% or
more of the outstanding voting shares.
Dividends. The
Company may pay cash dividends out of funds legally available therefor, subject
to the restrictions set forth in the California General Corporation Law (the
“CGCL”). The CGCL provides that a corporation may make a distribution
to its shareholders if the corporation’s retained earnings equal at least the
amount of the proposed distribution. CGCL also provides that, in the
event that sufficient retained earnings are not available for the proposed
distribution, a corporation may nevertheless make a distribution to its
shareholders if it meets two conditions, which generally stated are as follows:
(i) the corporation’s assets equal at least 1-1/4 times its liabilities, and
(ii) the corporation’s current assets equal at least its current liabilities or,
if the average of the corporation’s earnings before taxes on income and before
interest expenses for the two preceding fiscal years was less than the average
of the corporation’s interest expenses for such fiscal years, then the
corporation’s current assets must equal at least 1-1/4 times its
current liabilities.
Amendment to Charter and
Bylaws. Amendments to the Company’s Articles of Incorporation
generally require the approval of a majority vote of the Company’s Board of
Directors and also by a majority of the outstanding shares of the Company’s
voting stock. The Company’s Bylaws may be amended by a majority vote
of the Board of Directors or the affirmative vote of a majority of the total
votes eligible to be voted by shareholders.
Board of
Directors. The Company’s Bylaws provide that the number of
directors shall be not less than 9 nor more than 17 with the exact number of
directors fixed by a resolution of the board or shareholders. The
number of directors has been fixed at 12.
Directors of the
Company will also be elected annually for a one year term.
In
general, the removal of a director of the Company requires a vote of a majority
of the shareholders at a meeting.
Nomination to the Board of
Directors. The Company’s Bylaws require shareholders to comply
with certain prior notice provisions in connection with the nomination of
persons to become directors of the Company. Failure to comply with
these provisions may result in the nomination being disregarded.
Dissenters’
Rights. Because the Company is a California corporation, the
dissenters’ rights available to Company shareholders also will be governed by
Chapter 13 of the CGCL.
Financial
Information. Our common stock is listed on NASDAQ Capital
Market under the symbol “BMRC.” Outstanding shares of our common
stock are validly issued, fully paid and non-assessable. Holders of our common
stock are not, and will not be, subject to any liability as
shareholders.
Shareholder Rights
Plan. Pursuant to our Rights Agreement,
each registered holder of our common stock is entitled to purchase
from the Company one one-hundredth of a share of Series A Junior Participating
Preferred stock, no par value of Company at a price of $125 per one
one-hundredth of a preferred share, subject to adjustments, upon the occurrence
of certain events. The Bank of Marin Bancorp Rights Agreement is
designed to discourage takeovers that involve abusive tactics or do not provide
fair value to shareholders.
Transfer
Agent and Registrar
The transfer agent
and registrar for our common stock is Registrar and Transfer
Company.
Restrictions
on Ownership
The Bank Holding
Company Act requires any “bank holding company,” as defined in the Bank Holding
Company Act, to obtain the approval of the Federal Reserve Board prior to the
acquisition of 5% or more of our common stock. Any person, other than a bank
holding company, is required to obtain prior approval of the Federal Reserve
Board to acquire 10% or more of our common stock under the Change in Bank
Control Act. Any holder of 25% or more of our common stock, or a holder of 5% or
more if such holder otherwise exercises a “controlling influence” over us, is
subject to regulation as a bank holding company under the Bank Holding Company
Act.
Existing
Warrant
The following is a
brief description of the terms of the existing warrant (the “Warrant”) currently
held by the United States Treasury Department (the “Treasury”). This
summary does not purport to be complete in all respects. This description is
subject to and is qualified in its entirety by reference to the Warrant, a
copy of which has been filed with the SEC as Exhibit 4.4 to our post
effective amendment to registration statement on Form S-3 filed on
April 29, 2009 and also is available upon request from us.
Shares of Common Stock Subject to
the Warrant. The Warrant is initially exercisable for 154,242
shares of our common stock. The number of shares subject to the
Warrant are subject to certain adjustments described below under the heading
“—Adjustments to the Warrant.”
Exercise of the
Warrant. The initial exercise price applicable to the Warrant
is $27.23 per share of common stock for which the Warrant may be exercised. The
Warrant may be exercised at any time on or before December 5, 2018 by surrender
of the Warrant and a completed notice of exercise attached as an annex to
the Warrant and the payment of the exercise price for the shares of common stock
for which the Warrant is being exercised. The exercise price may be paid either
by the withholding by the Company of such number of shares of common stock
issuable upon exercise of the Warrant equal to the value of the aggregate
exercise price of the Warrant determined by reference to the market price of our
common stock on the trading day on which the Warrant is exercised or, if agreed
to by us and the warrantholder, by the payment of cash equal to the aggregate
exercise price. The exercise price applicable to the Warrant is subject to the
further adjustments described below under the heading “—Adjustments to the
Warrant.”
The Warrant may be
partially exercised. The holder of the Warrant is entitled to
receive, within three business days of partial exercise, a new substantially
identical Warrant for the unexercised shares.
Upon exercise of
the Warrant, certificates for the shares of common stock issuable upon exercise
will be issued to the warrantholder. We will not issue fractional shares upon
any exercise of the Warrant. Instead, the warrantholder will be entitled to a
cash payment equal to the market price of our common stock on the last day
preceding the exercise of the Warrant (less the pro-rated exercise price of the
Warrant) for any fractional shares that would have otherwise been issuable upon
exercise of the Warrant. We will at all times reserve the aggregate number of
shares of our common stock for which the Warrant may be exercised.
Liquidation. Under
the American Recovery and Reinvestment Act of 2009, since we repurchased the
shares of Series B Preferred Stock we sold to the Treasury, the Treasury is
required to liquidate the Warrant. As of the date of this prospectus,
the Treasury has not liquidated the Warrant.
Rights as a
Shareholder. The warrantholder shall have no rights or
privileges that holders of our common stock have, including any voting rights,
until the Warrant has been exercised, and then only with respect to shares of
common stock issued in connection with such exercise.
Transferability. The
Treasury may freely transfer all or any portion of the Warrant, and all rights
under the Warrant.
Adjustments
to the Warrant
Adjustments in Connection with Stock
Splits, Subdivisions, Reclassifications and Combinations. The number of
shares for which the Warrant may be exercised and the exercise price applicable
to the Warrant will be proportionately adjusted in the event we pay stock
dividends or make distributions of our common stock, subdivide, combine or
reclassify outstanding shares of our common stock.
Anti-dilution Adjustment.
Until the earlier of December 5, 2011 and the date the Treasury no longer holds
the Warrant (and other than in certain permitted transactions described below),
if we issue any shares of common stock (or securities convertible or exercisable
into common stock) for less than 90% of the market price of the common stock on
the last trading day prior to pricing such shares, then the number of shares of
common stock into which the Warrant is exercisable and the exercise price will
be adjusted. Permitted transactions include issuances:
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as
consideration for or to fund the acquisition of businesses and/or related
assets
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in connection
with employee benefit plans and compensation related arrangements in the
ordinary course and consistent with past practice approved by our board of
directors;
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in connection
with public or broadly marketed offerings and sales of common stock or
convertible securities for cash conducted by us or our affiliates pursuant
to registration under the Securities Act or Rule 144A thereunder on a
basis consistent with capital-raising transactions by comparable financial
institutions (but do not include other private transactions);
and
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in connection
with the exercise of preemptive rights on terms existing as of December 5,
2011.
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Other
Distributions. If we declare any dividends or distributions
other than our ordinary cash dividends, the exercise price of the Warrant will
be adjusted to reflect such distribution.
Certain
Repurchases. If we effect a pro rata repurchase of common
stock, both the number of shares issuable upon exercise of the Warrant and the
exercise price will be adjusted.
Business
Combinations. In the event of a merger, consolidation or
similar transaction involving the Company and requiring shareholder approval,
the warrantholder’s right to receive shares of our common stock upon exercise of
the warrant will be converted into the right to exercise the Warrant for the
consideration that would have been payable to the warrantholder with respect to
the shares of common stock for which the Warrant may be exercised, as if the
Warrant had been exercised prior to such merger, consolidation or similar
transaction.
DESCRIPTION OF PREFERRED STOCK
General. We have
authorized 5,000,000 shares of preferred stock, no par value per share, of which
no shares are issued and outstanding as of the date of this prospectus. Our
board of directors has the authority to (or may direct a board committee to),
without approval of the shareholders, issue shares of preferred stock in one or
more series and to fix the number of shares and rights, preferences and
limitations of each series. The shares of preferred stock, when issued and sold,
will be validly issued, fully paid and nonassessable.
The number of
shares and all of the relative rights, preferences and limitations of the
respective series of preferred stock authorized by the board of directors (or a
committee established by the board of directors) will be described in the
applicable prospectus supplement. The terms of a particular series of preferred
stock may differ from any other series, among other things, in:
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number of
shares that constitute the series;
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dividends
(which may be cumulative or noncumulative), the dividend rate, or the
method of calculating the dividend
rate;
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dividend
periods, or the method of calculating the dividend
periods;
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redemption
provisions, including whether, on what terms and at what prices the shares
will be subject to redemption at our option and whether a sinking fund
will be established;
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preferences
and rights upon liquidation or winding
up;
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whether and
on what terms the shares will be convertible into or exchangeable for
shares of any other class, series or security of ours or any other
corporation or any other property;
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for preferred
stock convertible into common stock, the number of shares of common stock
to be reserved in connection with, and issued upon conversion of, the
preferred stock;
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whether
depositary shares representing the preferred stock will be offered and, if
so, the fraction or multiple of a share that each depositary share will
represent; and
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the other
rights and privileges and any qualifications, limitations or restrictions
of those rights or privileges.
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Each series of
preferred stock will rank, with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up:
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junior to any
series of our capital stock expressly stated to be senior to that series
of preferred stock;
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senior to our
common stock and any class of our capital stock expressly stated to be
junior to that series of preferred stock;
and
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on a parity
with each other series of preferred stock and all other classes of our
capital stock.
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Dividends. If
described in the applicable prospectus supplement, we will pay dividends to the
holders of preferred stock, when and as declared by the board of directors, out
of funds legally available for payment. The prospectus supplement will detail
the annual rate of dividends or the method or formula for determining or
calculating them, the payment dates and payment periods for dividends, and
whether the dividends are cumulative or non-cumulative. The board of directors
will fix a record date for the payment of dividends. We will pay dividends on
the preferred stock to the holders of record on that record date.
We
will not declare, pay or set aside for payment any dividends on any preferred
stock ranking on a parity as to payment of dividends with the preferred stock
unless we declare, pay or set aside for payment dividends on all the outstanding
shares of preferred stock for all dividend payment periods ending on or before
the dividend payment date for that parity stock.
Redemption. The
prospectus supplement will indicate whether, and on what terms, shares of any
series of preferred stock will be subject to mandatory redemption or sinking
fund provision. The prospectus supplement will also indicate whether, and on
what terms, including the date on or after which redemption may occur, we may
redeem shares of a series of the preferred stock.
Liquidation
Rights. In the event we liquidate, dissolve or wind up our
affairs, the holders of shares of preferred stock will be entitled to receive,
out of our assets available for distribution to shareholders, liquidating
distributions in an amount equal to the stated value per share of preferred
stock, as described in the applicable prospectus supplement, plus accrued and
accumulated but unpaid dividends to the date of final distribution, before any
distribution is made to holders of:
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·
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any class or
series of capital stock ranking junior to the preferred stock as to rights
upon liquidation, dissolution or winding up;
or
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However, holders of
the shares of preferred stock will not be entitled to receive the liquidation
price of their shares until we have paid or set aside an amount sufficient to
pay in full the liquidation preference of any class or series of our securities
ranking senior as to rights upon liquidation, dissolution or winding up. Neither
a consolidation or merger in which we participate with or into another
corporation nor a merger of another corporation with or into us nor a sale or
transfer of all or part of our assets for cash or securities will be considered
a liquidation, dissolution or winding up.
If, upon our
liquidation, dissolution or winding up, our assets then distributable are
insufficient to pay in full the amounts payable with respect to the preferred
stock and any other preferred stock ranking on parity with the preferred stock
as to rights upon liquidation, dissolution or winding up, the holders of the
preferred stock and of that other preferred stock will share ratably in any
distribution in proportion to the full respective preferential amounts to which
they are entitled. After we have paid the full amount of the liquidating
distribution to which they are entitled, the holders of the preferred stock will
not be entitled to any further participation in any distribution of
assets.
Voting Rights.
Unless otherwise determined by our board of directors and indicated in the
prospectus supplement, holders of the preferred stock will not have any voting
rights except as from time to time required by law.
We
may offer warrants from time to time in one or more series for the purchase of
our common stock or preferred stock or any combination of those
securities. Warrants may be issued independently or together with any
shares of common stock or shares of preferred stock or offered by any prospectus
supplement and may be attached to or separate from common stock or preferred
stock. Each series of warrants will be issued under a separate
warrant agreement to be entered into between us and a warrant agent specified in
the related prospectus supplement relating to the particular issue of
warrants. The warrant agent will act as our agent in connection with
the warrants and will not assume any obligation or relationship of agency or
trust for or with any holders of warrants or beneficial owners of
warrants. The specific terms of a series of warrants will be
described in the prospectus supplement relating to that series of warrants along
with any general provisions applicable to that series of warrants.
The following is a
general description of the warrants we may issue. The prospectus
supplement relating to the warrants will describe the specific terms of any
issuance of warrants. The terms of any warrants we offer may differ
from the terms described in this prospectus. Consequently, we
will describe in the prospectus supplement the specific terms of the particular
series of warrants offered by that prospectus supplement. For a
description of the terms of a particular series of warrants, you should
carefully read this prospectus, the prospectus supplement related to those
warrants, and the applicable warrant agreement, which will be filed as an
exhibit to the registration statement of which this prospectus forms a part or
by a document incorporated by reference into this prospectus.
Terms. If we offer warrants,
the prospectus supplement will describe the terms of the warrants, including the
following if applicable to the particular offering:
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the title of
the warrants;
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the total
number of warrants;
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the number of
shares of common stock purchasable upon exercise of the warrants to
purchase common stock and the price at which shares of common stock may be
purchased upon exercise of the
warrants;
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·
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the
designation and terms of any series of preferred stock purchasable upon
exercise of the warrants to purchase preferred stock and the price at
which shares of preferred stock may be purchased upon exercise of the
warrants;
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·
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the date on
and after which the warrants and the related common stock or preferred
stock will be separately
transferable;
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·
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the date on
which the right to exercise the warrants will commence and the date on
which this right will expire;
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the minimum
or maximum amount of the warrants which may be exercised at any one
time;
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a discussion
of federal income tax, accounting and other special considerations,
procedures and limitations relating to the warrants;
and
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any other
terms of the warrants including terms, procedures and limitations relating
to the exchange and exercise of the
warrants.
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Before the exercise
of their warrants, holders of warrants will not have any of the rights of
holders of shares of common stock or shares of preferred stock purchasable upon
exercise, including the right to receive any dividends or
vote. Unless otherwise stated in the prospectus supplement, warrants
may be exchanged for new warrants of different denominations, may be presented
for registration of transfer, and may be exercised at the office of the warrant
agent.
Exercise of
Warrants. Each warrant will entitle the holder to purchase a
number of shares of common stock or shares of preferred stock at an exercise
price as will in each case be set forth in, or calculable from, the related
prospectus supplement. Warrants may be exercised at the times set forth in the
applicable prospectus supplement. After the close of business on the
expiration date (or any later date to which the expiration date may be extended
by us), unexercised warrants will become void. Subject to any
restrictions and additional requirements that may be set forth in the related
prospectus supplement, warrants may be exercised by delivery to the warrant
agent of the certificate evidencing the warrants properly completed and duly
executed and of payment as provided in the prospectus supplement of the amount
required to purchase shares of common stock or shares of preferred stock
purchasable upon such exercise. The exercise price will be the price
applicable on the date of payment in full, as set forth in the prospectus
supplement relating to the warrants. Upon receipt of the payment and
the certificate representing the warrants to be exercised properly completed and
duly executed at the office of the warrant agent or any other office indicated
in the prospectus supplement, we will, as soon as practicable, issue and deliver
the shares of common stock or shares of preferred stock purchasable upon such
exercise. If fewer than all of the warrants represented by that
certificate are exercised, a new certificate will be issued for the remaining
amount of warrants.
The description in
the applicable prospectus supplement and other offering material of any warrants
we offer will not necessarily be complete and will be qualified in its entirety
by reference to the applicable warrant agreement, which will be filed with the
SEC if we offer warrants. For more information on how you can obtain
copies of the applicable warrant agreement if we offer warrants, see
“Incorporation by Reference” on page 15 of this prospectus. We urge
you to read the applicable warrant agreement and the applicable prospectus
supplement and any other offering material in their entirety.
We
may offer units comprising one or more of the securities described in this
prospectus in any combination. Each unit will be issued so that the
holder of the unit also is the holder of each security included in the
unit. Consequently, the holder of a unit will have the rights and
obligations of a holder of each included security. The unit agreement
under which a unit is issued may provide that the securities included in the
unit may not be held or transferred separately at any time or at any time before
a specified date. In this section, we describe the general terms and
provisions of the units that we may offer.
The prospectus
supplement relating to the units we may offer will include specific terms
relating to the offering, including, the designation and terms of the units and
the securities comprising the units; whether and under what circumstances those
securities may be held or transferred separately; any provision for the
issuance, payment, settlement, transfer or exchange of the units or of the
securities comprising those units; and whether the units will be issued in fully
registered or global form.
The description in
the applicable prospectus supplement and other offering material of any units we
offer will not necessarily be complete and will be qualified in its entirety by
reference to the applicable unit certificate, which will be filed with the SEC
if we offer units. We urge you to read the applicable unit
certificate and the applicable prospectus supplement and any other offering
material in their entirety.
The following sets
forth a general summary of the plan of distribution for securities we may offer.
The applicable prospectus supplement may update and supersede this
summary.
We
may sell our securities in any of three ways (or in any
combination):
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through
underwriters or dealers;
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directly to
one purchaser or a limited number of purchasers;
or
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Each time that we
use this prospectus to sell our securities, we will also provide a prospectus
supplement that contains the specific terms of the offering, which will
include:
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the name or
names of any underwriters, dealers, or agents and the type and amounts of
securities underwritten or purchased by each of
them;
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the public
offering price of the securities and the proceeds to us and any discounts,
commissions or concessions allowed or reallowed or paid to underwriters or
dealers; and
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any delayed
delivery arrangements.
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The offer and sale
of the securities by us, the underwriters, or the third parties described above
may be effected from time to time in one or more transactions, including
privately negotiated transactions, either:
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at a fixed
price or prices, which may be
changed;
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at market
prices prevailing at the time of
sale;
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at prices
related to the prevailing market prices;
or
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Any public offering
price and any discounts or concessions to dealers may be changed from time to
time.
If
underwriters are used in the sale of any securities, the securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The securities may be either offered to the public through
underwriting syndicates represented by managing underwriters, or directly by
underwriters. Unless otherwise provided in a prospectus supplement, any
obligation of underwriters to purchase the securities will be subject to certain
conditions precedent and any underwriters will be obligated to purchase all of
the securities if they purchase any of the securities.
We
may sell the securities through agents from time to time. The
prospectus supplement will name any agent involved in the offer or sale of our
securities and any commissions we pay to them. Generally, any agent
will be acting on a best efforts basis for the period of its
appointment.
If
so indicated in the applicable prospectus supplement, we may authorize
underwriters, dealers, or agents to solicit offers by certain purchasers to
purchase our securities at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. The contracts will be
subject only to those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth any commissions or discounts we pay for
solicitation of these contracts.
Agents and
underwriters may be entitled to indemnification by us against certain
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments that the agents or underwriters may be required to make
in respect thereof. Agents and underwriters may be customers of,
engage in transactions with, or perform services for us in the ordinary course
of business.
Unless otherwise
indicated in the applicable prospectus supplement, certain legal matters with
respect to the securities offered from time to time under this prospectus will
be passed upon for us by Stuart | Moore. If legal matters are passed upon by
counsel for the underwriters, dealers or agents, if any, such counsel will be
named in the prospectus supplement relating to such offering.
The consolidated
financial statements of Bank of Marin Bancorp appearing in Bank of Marin
Bancorp’s Annual Report on Form 10-K for the year ended December 31,
2008, and the effectiveness of Bank of Marin Bancorp’s internal control over
financial reporting as of December 31, 2008 have been audited by Moss Adams
LLP, independent registered public accounting firm, as set forth in their
reports thereon, included therein, and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such reports given on the authority of such firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC’s website at http:/www.sec.gov. Copies of certain
information filed by us with the SEC are also available on our website at
http://www.bankofmarin.com. Our website is not a part of this prospectus. You
may also read and copy any document we file at the SEC’s public reference room,
100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
room.
The SEC allows us
to “incorporate by reference” information we file with it, which means that we
can disclose important information to you by referring you to other documents.
The information incorporated by reference is considered to be a part of this
prospectus, and information that we file later with the SEC will automatically
update and supersede this information. In all cases, you should rely on the
later information over different information included in this
prospectus.
INCORPORATION BY REFERENCE
We
incorporate by reference the documents listed below and all future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the termination of the offering, except to the extent that any
information contained in such filings is deemed “furnished” in accordance with
SEC rules:
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Annual Report
on Form 10-K for the year ended December 31,
2008;
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Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2009 and
June 30, 2009;
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Current
Reports on Form 8-K filed on March 31 and October 26, 2009;
and
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Registration
of Securities on Form 8-A filed on July 2,
2007.
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You may request a
copy of these filings, at no cost, by writing or telephoning us at the following
address:
Bank of Marin
Bancorp
504 Redwood Blvd.,
Suite 100
Novato, California
94947
Telephone: (415)
763-4520
Attn: Corporate
Secretary
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
The following table
sets forth the various expenses to be incurred in connection with the sale and
distribution of the Securities being registered hereby, all of which will be
borne by Bank of Marin Bancorp (except any underwriting discounts and
commissions and expenses incurred by the selling securityholders for brokerage,
accounting, tax or legal services or any other expenses incurred by the selling
securityholders in disposing of the shares). All amounts shown are estimates
except the SEC registration fee.
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SEC
registration fee
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$ |
4,185 |
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Legal fees
and expenses
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$ |
15,000 |
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Accounting
fees and expenses
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$ |
5,000 |
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Miscellaneous
expenses
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$ |
1,000 |
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Total
expenses
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$ |
25,185 |
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Item 15. 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.
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.
In
addition, Bank of Marin Bancorp and Bank of Marin maintain directors’ and
officers’ liability insurance policies.
Item 16. Exhibits
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1.1
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Form of
Underwriting Agreement between Bank of Marin Bancorp and one or more
underwriters to be named*
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4.1
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Articles of
Incorporation, as amended, is incorporated by reference to Exhibit 3.01 to
Bancorp’s Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2007.
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4.2
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Bylaws, as
amended, incorporated by reference to Exhibit 3.02 to Bancorp’s Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2007.
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4.3
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Rights
Agreement dated as of July 2, 2007 is incorporated by reference to Exhibit
4.1 to Registration Statement on Form 8-A12B filed with the Securities and
Exchange Commission on July 2, 2007.
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4.4
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Form of
Warrant Agreement*
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4.5
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Form of Unit
Certificate*
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5.1
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Opinion of
Stuart | Moore
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23.1
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Consent of
Moss Adams LLP
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23.2
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Consent of
Stuart | Moore, included in Exhibit 5.1 filed herewith
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24.1
|
|
Powers of
Attorney
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*
|
To be filed,
if applicable, subsequent to the effectiveness of this registration
statement (1) by an amendment to this registration statement, or (2) as an
exhibit to a Current Report on Form 8-K and incorporated herein by
reference.
|
Item 17. Undertakings.
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, as
amended (the “Securities Act of 1933”);
(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 this registration statement. Notwithstanding the
foregoing, any increase or decrease in the 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 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)(i), (1)(ii) and (1)(iii) 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”), that
are incorporated by reference in this registration statement, or is contained in
a form of prospectus filed pursuant to Rule 424(b) that is part of this
registration statement.
(2) That, for the
purposes of determining any liability under the Securities Act of 1933, each
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 the 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.
(4) That, for the
purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) each prospectus
filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed to be part
of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that
no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That, for
the purpose of determining liability of a registrant under the Securities Act of
1933 to any purchaser in the initial distribution of the
securities:
The undersigned
registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii) any free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) the portion
of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) any other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
The 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 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
this 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.
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 indemnification provisions described herein, 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 of 1933 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
Securities Act of 1933 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 the Registrant meets all of the requirements of filing on Form S-3 and
authorized this Registration Statement to be signed on its behalf by the
undersigned, in the City of Novato, State of California on October 26,
2009.
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BANK OF MARIN
BANCORP
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By:
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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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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 October 26, 2009.
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Signature
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Capacity
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/s/ Joel Sklar, M.D.
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Chairman of
the Board
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JOEL SKLAR,
M.D.
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/s/ Judith O’Connell Allen
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Director
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JUDITH
O’CONNELL ALLEN
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/s/ Russell A. Colombo
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Director,
President and Chief Executive Officer
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RUSSELL A.
COLOMBO
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/s/ Christina J. Cook
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Executive
Vice President and Chief Financial
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CHRISTINA J.
COOK
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Officer
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Director
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Thomas M.
Foster
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/s/ Robert Heller
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Director
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ROBERT
HELLER
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/s/ Norma J. Howard
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Director
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NORMA J.
HOWARD
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/s/ Stuart D. Lum
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Director
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STUART D.
LUM
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/s/ Joseph D. Martino
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Director
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JOSEPH D.
MARTINO
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/s/ William McDevitt, Jr.
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Director
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WILLIAM
MCDEVITT, JR.
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/s/ Brian M. Sobel
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Director
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BRIAN M.
SOBEL
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/s/ J. Dietrich Stroeh
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Director
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J. DIETRICH
STROEH
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/s/ Jan I. Yanehiro
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Director
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JAN I.
YANEHIRO
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Exhibit
Index
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Exhibit Number
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Description of document
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Opinion of
Stuart | Moore
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Consent of
Moss Adams LLP
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23.2
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Consent of
Stuart | Moore, included in Exhibit 5.1 filed herewith
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Powers of
Attorney
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