As filed with the Securities and Exchange Commission on September 29, 2003
File No. 333-40384
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HERITAGE COMMERCE CORP
______________________________________________________
(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0469558
_____________________________________________ ______________________
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification Number)
150 ALMADEN BOULEVARD, SAN JOSE, CA 95113
_________________________________________
(Address of principal executive offices)
BANK OF LOS ALTOS 1995 STOCK OPTION PLAN
________________________________________
(Full title of plan)
LAWRENCE D. MCGOVERN
HERITAGE COMMERCE CORP
150 ALMADEN BOULEVARD
SAN JOSE, CA 95113
(408) 947-6900
_________________________________________________________
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
_________________________________________________________________________________________________________
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per Aggregate offering registration
share price fee
_________________________________________________________________________________________________________
Common Stock, no par value 375,600 (1) (1) (1)
_________________________________________________________________________________________________________
(1) Not applicable. All filing fees payable in connection with the registration
of the issuance of these securities were paid in connection with the filing of
the registrant's Registration Statement on Form S-4 (333-40384) on June 29,
2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Heritage Commerce Corp. hereby amends its Registration Statement on
Form S-4 (No. 333-40384) (the "Form S-4") by filing this Post-Effective
Amendment No. 1 on Form S-8 with respect to up to 375,600 of the registrant's
common shares, without par value, issuable in connection with options under the
Bank of Los Altos 1995 Stock Option Plan.
On October 1, 2000, the registrant completed a merger with Western
Holdings Bancorp, a California corporation, and Western Holding Bancorp's
subsidiary bank, Bank of Los Altos, a California state-chartered commercial
bank. Pursuant to the terms of the Agreement of Merger, each option for Western
Holdings Bancorp common stock outstanding at the effective time of the merger
was exchanged for an option exercisable for the number of shares of registrant's
common stock equal to the number of Western Holdings Bancorp common shares
underlying the original option times the merger exchange ratio of 1.2264. These
common shares were registered under the Form S-4. This Post-Effective Amendment
is being filed to conform the disclosure in the Registration Statement to
reflect the continuing offering of the registrant's shares underlying the
converted options.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2002;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31 and June 30, 2003;
(c) The Company's Current Report on Form 8-K dated January 22,
2003;
(d) The description of the Company's common stock contained in the
Company's Registration Statement on Form 8-A, as filed with the
Commission on March 5, 1998; and
(e) The description of rights covering the Company's Series A
Junior Participating Preferred Stock contained in the Company's
Registration Statement on Form 8-A, as filed with the
Commission on November 15, 2001.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 317 of the California General Corporation Law permits
indemnification of directors, officers and employees of corporations under
certain conditions and subject to certain limitations. Article V of the Articles
of Incorporation of the Company contains provisions limiting the monetary
liability of directors for breaches of the duty of care. Article VII of the
Articles of Incorporation of the Company contains provisions that authorize the
registrant to indemnify its directors, officers and employees to the fullest
extent permitted, and in excess of that authorized, under Section 317. Section
12 of the Company's By-laws provide for the indemnification of directors and
officers to the fullest extent permitted by law.
The Company also maintains insurance policies which insure its officers
and directors against certain liabilities.
The foregoing summaries are necessarily subject to the complete text of
the statute, the Articles and the By-Laws referred to above and are qualified in
their entirety by reference thereto.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this Registration Statement are listed in the Exhibit
Index to this filing, which is incorporated by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
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) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in 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) Filings incorporating subsequent Exchange Act
documents by reference.
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 Exchange Act that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Request for acceleration of effective date or filing
of Registration Statement on Form S-8.
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
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on September 23, 2003.
HERITAGE COMMERCE CORP
(Registrant)
By: /s/ LAWRENCE D. MCGOVERN
______________________________________
Lawrence D. McGovern
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the registrant in the capacities and on the dates indicated.
Signature Title Date
____________________________ ___________________________ __________________
/s/ FRANK BISCEGLIA Director September 23, 2003
____________________________
Frank Bisceglia
/s/ JAMES BLAIR Director September 23, 2003
____________________________
James Blair
/s/ RICHARD CONNIFF Director, President and September 23, 2003
____________________________ Chief Operating Officer
Richard Conniff
/s/ WILLIAM DEL BIAGGIO, JR. Director September 23, 2003
____________________________
William Del Biaggio, Jr.
/s/ ANNEKE DURY Director September 23, 2003
____________________________
Anneke Dury
/s/ LON NORMANDIN Director September 23, 2003
____________________________
Lon Normandin
/s/ LAWRENCE D. MCGOVERN Executive Vice President September 23, 2003
____________________________ and Chief Financial Officer
Lawrence D. McGovern (Principal Financial and
Accounting Officer)
/s/ JACK L. PECKHAM Director September 23, 2003
____________________________
Jack L. Peckham
/s/ HUMPHREY POLANEN Director September 23, 2003
____________________________
Humphrey Polanen
/s/ KIRK ROSSMANN Director September 23, 2003
____________________________
Kirk Rossmann
/s/ LAWRENCE D. MCGOVERN Individually and as September 23, 2003
____________________________ Attorney-in-Fact
Lawrence D. McGovern
EXHIBIT LIST
Exhibit Description
_______ ___________
4.1 Bank of Los Altos 1995 Stock Option Plan
4.2 Agreement and Plan of Merger among Heritage Commerce Corp,
Western Holdings Bancorp and Bank of Los Altos dated as of May 9,
2000 (incorporated by reference to Part I, Appendix A of
Registration Statement on Form S-4 of the registrant (File No.
333-40384))
5 Opinion of Counsel as to the legality of securities being
registered (incorporated by reference to Exhibit 5 to
Registration Statementon Form S-4 of the registrant (File No.
333-40384)
24.1 Consent of Counsel (included in Exhibit 5)
24.2 Consent of Independent Auditors (incorporated by reference to
Exhibit 23.1 to the registrant's Annual Report on Form 10-K for
the year ended December 31, 2002)
25 Power of Attorney (included in signature page of Registration
Statement on Form S-4, 333-40384)