forms-8.htm
As
filed with the Securities and Exchange Commission on July 24,
2007
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Registration
No. 333-_____
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SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
BANK
OF MARIN BANCORP
(Exact
name of registrant as specified in its charter)
California
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20-8859754
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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504
Redwood Boulevard, Suite 100
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|
Novato,
California
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94947
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(Address
of Principal Executive Offices)
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(Zip
Code)
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BANK
OF MARIN
1989
STOCK OPTION PLAN
(Full
title of plan)
Christina
J. Cook
Chief
Financial Officer
Bank
of Marin Bancorp
504
Redwood Blvd., Suite 100
Novato,
CA 94947
(Name
and
address of agent for service)
(415)
884-7781
(Telephone
number, including area code, of agent for service)
Copies
of communications to:
John
F. Stuart, Esq.
Reitner,
Stuart & Moore
1319
Marsh Street
San
Luis Obispo, CA 93401
(805)
545-8590
CALCULATION
OF REGISTRATION FEE
Title
of securities to
be registered
|
Amount
to
be registered
(1)
|
Proposed
maximum
offering
price
per
share
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Proposed
maximum
aggregate
offering
price
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Amount
of registration
fee
|
Common
Stock, no
par value
|
30,782
|
$32.52
(2)
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$1,001,030.60
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$30.73
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(1) Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
this registration statement shall also cover any additional shares of common
stock which becomes issuable under the plans to which this registration relates
by reason of any anti-dilution provisions, stock dividend, stock split,
recapitalization or any other similar transaction or action taken effected
without the receipt of consideration which results in an increase in the number
of the registrant’s outstanding shares of common stock.
(2) Estimated
solely for the purpose of calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act. The computation
with respect to shares not previously registered is based upon the average
high
and low sale prices of the registrant’s common stock as reported on the Nasdaq
Capital Market on July 20, 2007.
EXPLANATORY
NOTE
Bank
of
Marin Bancorp is registering these shares which were originally intended to
be
issued by Bank of Marin pursuant to stock options granted in accordance with
the
Bank of Marin 1989 Stock Option Plan. The stock option plan and the
options granted pursuant thereto were assumed by Bank of Marin Bancorp pursuant
to that certain Plan of Reorganization and Agreement of Merger, dated March
8,
2007, which resulted in Bank of Marin Bancorp becoming the bank holding company
for Bank of Marin. As a result, options to purchase shares of Bank of
Marin common stock now have become options to purchase shares of common stock
of
Bank of Marin Bancorp.
Part
I Information Required in the Section 10(a)
Prospectus
Item
1.
|
Plan
Information.
|
Bank
of
Marin Bancorp will send or give the documents containing the information
specified in this Item 1 to each participant as specified by Rule
428(b)(1). In accordance with the rules and regulations of the
Securities and Exchange Commission and the instructions to Form S-8, Bank of
Marin Bancorp is not filing such documents with the Securities and Exchange
Commission whether as part of this Registration Statement or as prospectuses
or
prospectus supplements pursuant to Rule 424 of the Securities Act. In
addition, Bank of Marin Bancorp will undertake to provide, upon request, copies
of both the annual report on Form 10-K for the year ended December 31, 2006,
and
the quarterly report on Form 10-Q for the quarter ended March 31, 2007,
previously filed by Bank of Marin with the Federal Deposit Insurance
Corporation.
Item
2.
|
Registrant
Information and Employee Plan Annual
Information.
|
Bank
of
Marin Bancorp will send or give the documents containing the information
specified in Item 2 to each participant as specified by Rule
428(b)(1). In accordance with the rules and regulations of the
Securities and Exchange Commission and the instructions to Form S-8, Bank of
Marin Bancorp is not filing such documents with the Securities and Exchange
Commission whether as part of this Registration Statement or as prospectuses
or
prospectus supplements pursuant to Rule 424 of the Securities Act. In
addition, Bank of Marin Bancorp will undertake to provide, upon request, copies
of both the annual report on Form 10-K for the year ended December 31, 2006,
and
the quarterly report on Form 10-Q for the quarter ended March 31, 2007,
previously filed by Bank of Marin with the Federal Deposit Insurance
Corporation.
Part
II Information Required in the Registration
Statement
Item
3.
|
Incorporation
of Documents by Reference.
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The
following documents filed with the Securities and Exchange Commission (the
“Commission”) are hereby incorporated by reference.
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(a)
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The
registrant’s Current Reports on Form 8-K filed on June 29, July 2, July
13, and July 20, 2007; and
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|
(b)
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The
registrant’s Registration on Form 8-A filed July 2,
2007.
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Additionally,
all documents subsequently filed by the registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”),
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and be part thereof from the date of filing of such
documents.
Item
4.
|
Description
of Securities.
|
Not
applicable.
Item
5.
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Interests
of Named Experts and
Counsel.
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Not
applicable.
Item
6.
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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.
Item
7.
|
Exemption
from Registration Claimed.
|
Not
applicable.
|
|
Opinion
of Reitner, Stuart & Moore regarding legality of the securities
covered by the Registration
Statement
|
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23.1
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Consent
of Reitner, Stuart & Moore (included in Exhibit
5.1)
|
|
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Consent
of Moss Adams, LLP
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Item
9. Undertakings.
A. The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and
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 that are incorporated by reference in the
registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
B. The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the registrant=s
annual
report pursuant to section 13(a) or section 15(d) of the Securities Exchange
Act
of 1934 (and, where applicable), each filing of an employee benefit plan=s
annual
report pursuant to section 15(d) of the Securities Exchange Act of 1934) that
is
incorporated by reference in the registration statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona
fide offering thereof.
C. Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will
be governed by the final adjudication of such issue.
SIGNATURES
In
accordance with the requirements of
the Securities Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that the Registrant meets all of the requirements of filing
on Form S-8 and authorized this Registration Statement to be signed on its
behalf by the undersigned, in the City of Novato, State of California on July
24, 2007.
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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 July 24, 2007.
Signature
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Capacity
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*
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Chairperson
of the Board
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JOEL
SKLAR, M.D.
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*
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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 CEO
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RUSSELL
A. COLOMBO
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/s/
CHRISTINA J. COOK
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Executive
Vice President and
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CHRISTINA
J. COOK
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Chief
Financial Officer
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*
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Director
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JAMES
A. DIETZ
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*
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Director
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ROBERT
HELLER
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*
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Director
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NORMA
J. HOWARD
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*
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Director
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J.
PATRICK HUNT
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*
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Director
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JAMES
D. KIRSNER
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*
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Director
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STUART
D. LUM
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*
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Director
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JOSEPH
D. MARTINO
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Director
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WILLIE
MCDEVITT
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*
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Director
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BRIAN
M. SOBEL
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*
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Director
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J.
DIETRICH STROEH
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*
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Director
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JAN
I. YANEHIRO
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* By:
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/s/
RUSSELL A. COLOMBO
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RUSSELL
A. COLOMBO
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Attorney-in-fact
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