Table of Contents
As
filed with the Securities and Exchange Commission on March 9, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PACWEST BANCORP
(Exact name of registrant as
specified in its charter)
DELAWARE
(State or Other
Jurisdiction of
Incorporation or Organization)
|
33-0885320
(IRS Employer
Identification Number)
|
401
West A Street
San Diego, California, 92101
(619) 233-5588
(Address,
Including Zip Code, and Telephone Number,
including Area Code, of Registrants Principal Executive Offices)
Jared
M. Wolff
Executive
Vice President, General Counsel and Secretary
10250
Constellation Boulevard, Suite 1640
Los
Angeles, California 90067
(310)
728-1023
(Name, Address, Including Zip Code,
And Telephone Number, Including Area Code, of Agent for Service)
COPY
TO:
Patrick S. Brown
Sullivan &
Cromwell LLP
1888
Century Park East, Suite 2100
Los
Angeles, California 90067
(310)
712-6600
APPROXIMATE DATE OF
COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER
THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this form
are being offered pursuant to dividend or interest reinvestment plans, please
check the following box.
o
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.
o
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.
o
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.
o
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.
o
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):
Large accelerated filer
|
o
|
Accelerated filer
|
x
|
Non-accelerated filer
|
o
|
Smaller reporting company
|
o
|
(Do not check if a smaller reporting company)
|
|
|
|
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered(1)(2)
|
|
Amount to be
registered(2)
|
|
Proposed maximum
offering price per
share (2)
|
|
Proposed maximum
offering price(2)
|
|
Amount of
registration
fee
|
|
Common Stock, $0.01 par value per share
|
|
3,846,153
|
|
$
|
10.00
|
|
$
|
38,461,530
|
|
$
|
1,511.54
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
This Registration
Statement on Form S-3 registers 3,846,153
shares of common stock, $0.01 par value per share, of
PacWest Bancorp that may be offered by the selling stockholder.
(2)
Estimated solely for
purposes of calculating the registration fee in accordance with Rule 457(c) based
on the average of the high and low reported sales prices on the NASDAQ Global
Select Market on March 6, 2009.
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
SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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The information in this prospectus is not complete
and may be changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT TO COMPLETION, DATED MARCH 9, 2009
Prospectus
3,846,153 SHARES
PACWEST BANCORP
Common
Stock
This
prospectus relates to resales of up to 3,846,153 shares of our common stock,
$0.01 par value per share, that may be sold by the
selling stockholder identified in this prospectus from time to time at prices
determined by the selling stockholder at the time of sale. These shares were
acquired from us by the selling stockholder pursuant to a Stock Purchase
Agreement, dated as of August 29, 2008. We will not receive any proceeds
from the sale of the shares by the selling stockholder.
Our
common stock is traded on the NASDAQ Global Select Market, which we refer to as
the NASDAQ, under the symbol PACW. On March 6, 2009, the last reported sale
price of our common stock was $9.78 per share.
In connection
with the registration of the 3,846,153 shares of common stock offered herein,
we have paid or will pay the registration fees and any blue sky filing fees.
Investing
in our common stock involves risks. You should carefully review the information
contained under the heading Risk Factors beginning on page 20 of our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008, which information is incorporated by reference into this prospectus, for
a discussion of factors you should carefully consider before deciding to invest
in our common stock.
Neither
the Securities and Exchange Commission nor any other regulatory body has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
These
securities are equity securities. They are not savings or deposit accounts and
are not insured by the Federal Deposit Insurance Corporation, the Bank
Insurance Fund or any other governmental agency or instrumentality.
The date of this prospectus
is , 2009
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TABLE OF CONTENTS
You
should rely only on the information contained or incorporated by reference in
this prospectus and any prospectus supplement. We have not authorized any other
person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it. The selling
stockholder is not making an offer to sell these securities in any jurisdiction
where the offer and sale is not permitted. You should assume that the
information contained in this prospectus and the documents incorporated by
reference in this prospectus is accurate only as of the date on the front of
the respective document. Our business, financial condition, results of
operation and prospects may have changed since that date.
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, which we refer to as the SEC, using the SECs
shelf registration rules. Under the shelf registration rules, using this
prospectus, together with a prospectus supplement, the selling stockholder may
sell from time to time, in one or more offerings, on a continuous or delayed
basis, the securities described in this prospectus.
In
this prospectus, PacWest Bancorp, the Company, we, us, and our refer
to PacWest Bancorp, a Delaware corporation, unless the context otherwise
requires. This prospectus provides you with a general description of the
securities to be sold. The selling stockholder may offer and sell, from time to
time, an aggregate of up to 3,846,153 shares of our common stock under this
prospectus. In some cases, the selling stockholder will be required to provide
a prospectus supplement containing specific information about the selling
stockholder and the terms on which it is offering and selling our common stock.
We may also add, update or change in a prospectus supplement any information
contained in this prospectus. This prospectus does not contain all of the
information included in the registration statement. For a complete
understanding of the offering of securities, you should refer to the
registration statement relating to this prospectus, including its exhibits, and
read this prospectus, the applicable prospectus supplement and the additional
information described below under Where You Can Find More Information before
making an investment decision.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or
other information we file with the SEC at its public reference rooms at
100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our
filings are also available to the public on the Internet, through a database
maintained by the SEC at http://www.sec.gov.
The
SEC allows us to incorporate by reference into this document the information we
have filed with it. This means that we can disclose important business,
financial and other information to you by referring you to other documents
separately filed with the SEC. All information incorporated by reference is part
of this document, unless and until that information is updated and superseded
by the information contained in this document or any information subsequently
incorporated by reference.
We
incorporate by reference the documents listed below (other than, in each case,
documents or information deemed to have been furnished and not filed in
accordance with SEC rules):
1.
Our Annual Report
on Form 10-K for the year ended December 31, 2008;
2.
Our current report
on Form 8-K filed on January 14, 2009; and
3.
The description of
our common stock contained in Registration Statement No. 000-30747 on Form 8-A
filed on June 2, 2000, including any amendment or report filed for the
purpose of updating such description.
We
will provide to each person, including any beneficial owner, to whom a
prospectus is delivered, a copy of any or all of the information that has been
or may be incorporated by reference in the prospectus, but not delivered with
the prospectus. You may request, and we will provide, a copy of these filings,
at no cost to you, by writing or telephoning us at the following address:
PacWest Bancorp
Attention: Investor Relations
401 West A Street
San Diego, California, 92101
(619) 233-5588
Exhibits
to the filings will not be sent, however, unless those exhibits have
specifically been incorporated by reference.
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We
also incorporate by reference all future filings we make with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or
the Exchange Act, (i) on or after the date of the filing of the
registration statement containing this prospectus and prior to the effectiveness
of such registration statement and (ii) on or after the date of this
prospectus and prior to the termination of the offering made hereby. Such
documents will become a part of this prospectus from the date that the
documents are filed with the SEC.
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, any prospectus supplement and any documents incorporated by
reference may contain certain forward-looking statements about the Company and
its subsidiaries, which statements are intended to be covered by the safe
harbor for forward-looking statements provided by the Private Securities
Litigation Reform Act of 1995. All statements other than statements of
historical fact are forward-looking statements. Such statements involve
inherent risks and uncertainties, many of which are difficult to predict and
are generally beyond the control of the Company. We caution readers that a
number of important factors could cause actual results to differ materially
from those expressed in, implied or projected by, such forward-looking
statements. Risks and uncertainties include, but are not limited to:
·
lower than
expected revenues;
·
credit quality
deterioration or pronounced and sustained reduction in real estate market
values could cause an increase in the allowance for credit losses and a
reduction in net earnings;
·
increased
competitive pressure among depository institutions;
·
the Companys
ability to complete any further acquisitions, to successfully integrate such
acquired entities, or to achieve expected synergies and operating efficiencies
within expected time-frames or at all;
·
the possibility
that personnel changes will not proceed as planned;
·
the cost of
additional capital is more than expected;
·
a change in the
interest rate environment reduces interest margins;
·
asset/liability
repricing risks and liquidity risks;
·
pending legal
matters may take longer or cost more to resolve or may be resolved adversely to
the Company;
·
general economic
conditions, either nationally or in the market areas in which the Company does
or anticipates doing business, are less favorable than expected;
·
environmental
conditions, including natural disasters, may disrupt our business, impede our
operations, negatively impact the values of collateral securing the Companys
loans or impair the ability of our borrowers to support their debt obligations;
·
the economic and
regulatory effects of the continuing war on terrorism and other events of war,
including conflicts in Iraq, Afghanistan, and neighboring countries;
·
legislative or
regulatory requirements or changes adversely affecting the Companys business;
·
changes in the
securities markets;
·
regulatory
approvals for any capital activities cannot be obtained on terms expected or on
the anticipated schedule; and
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·
other risks that
are described in PacWests public filings with the SEC.
If any
of these risks or uncertainties materializes or if any of the assumptions
underlying such forward-looking statements proves to be incorrect, the Companys
results could differ materially from those expressed in, implied or projected
by, such forward-looking statements. We assume no obligations to update such
forward-looking statements. For a more detailed discussion of certain of these
factors, see the section entitled Risk Factors in the applicable prospectus
supplement and Risk Factors in our most recent Form 10-K (incorporated
by reference in this prospectus) and similar sections in our future filings
which are incorporated by reference in this prospectus, which describe risks
and factors that could cause results to differ materially from those projected
in such forward-looking statements. We caution the reader that these risk
factors may not be exhaustive. We operate in a continually changing business
environment, and new risk factors emerge from time to time. Management cannot
predict such new risk factors, nor can it assess the impact, if any, of such
new risk factors on our business or the extent to which any factor, or
combination of factors, may cause actual results to differ materially from
those projected in any forward-looking statements.
USE
OF PROCEEDS
All
shares of common stock sold pursuant to this prospectus will be sold by the
selling stockholder, and we will not receive any of the proceeds from such
sales.
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DESCRIPTION
OF CAPITAL STOCK
Rights
of our stockholders are governed by the Delaware General Corporation Law, or
DGCL, our certificate of incorporation and our bylaws. The following is a
description of provisions of the DGCL, our certificate of incorporation and
bylaws that are generally applicable or relevant to holders of our capital
stock. For information on how to obtain copies of our certificate of
incorporation and bylaws, see Where You Can Find More Information.
Pursuant
to our certificate of incorporation, the total number of shares of all classes
of stock which we have the authority to issue is 55,000,000, of which
50,000,000 shares are designated as common stock, par value $0.01 per share,
and 5,000,000 shares are designated as preferred stock, par value $0.01 per
share. PacWest Bancorp common stock represents non-withdrawable capital and is
not insured by the Federal Deposit Insurance Corporation. All of the
outstanding shares of stock are, and any stock issued and sold under this
prospectus will be, including those issued to the selling stockholder, fully
paid and nonassessable.
Limitation of Liability
and Indemnification Matters
Our
certificate of incorporation provides that a director of the Company shall not
be liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent that such exemption from
liability or limitation thereof is not permitted under Delaware law. Our bylaws
provide that, to the maximum extent permitted by law, the Company shall
indemnify any person made or threatened to be made a party to any action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person or such persons testator or intestate is
or was a director, officer or employee of the Company or serves or served at
the request of the Company any other enterprise as a director, officer or
employee. Expenses, including attorneys fees, incurred by any such person in
defending any such action, suit or proceeding shall be paid or reimbursed by
the Company promptly upon receipt by it of an undertaking of such person to
repay such expenses if it shall ultimately be determined that such person is
not entitled to be indemnified by the Company. The bylaws do not limit the
power of PacWest Bancorp or its board of directors to provide other
indemnification and expense reimbursement rights to directors, officers,
employees, agents and other persons.
Anti-takeover Provisions
in the Certificate of Incorporation and Bylaws
Certain
provisions of our certificate of incorporation could make it less likely that
our management would be changed or someone would acquire voting control of us
without the consent of our board of directors. These provisions could
delay, deter or prevent tender offers or takeover attempts that stockholders
might believe are in their best interests, including tender offers or takeover
attempts that could allow stockholders to receive premiums over the market
price of their common stock.
Preferred
Stock
: Our board of directors can at any time, under
our certificate of incorporation and without stockholder approval, issue one or
more new series of preferred stock. In some cases, the issuance of
preferred stock could discourage or make more difficult attempts to take
control of us through a merger, tender offer, proxy context or otherwise.
Preferred stock with special voting rights or other features issued to persons
favoring our management could stop a takeover by preventing the person trying
to take control of us from acquiring enough voting shares necessary to take
control.
Nomination
Procedures
: Holders of our common stock can nominate
candidates for our board of directors. A stockholder must follow the
advance notice procedures described in our bylaws. In general, to
nominate a person for election to our board of directors at a meeting of our
stockholders, a stockholder must submit a written notice of the proposed
nomination to our corporate secretary at least 90 but not more than 120 days
before the meeting.
Rights
Plan
: Although we do not have a stockholder rights plan
(commonly referred to as a poison pill), under Delaware law our board of
directors can adopt such a plan without stockholder approval. If adopted,
a stockholder rights plan could operate to cause substantial dilution to a
person or group that attempts to acquire us on terms not approved by our board
of directors.
Amendment
of Bylaws
: Under our bylaws, our board of directors can
adopt, amend or repeal the bylaws, subject to limitations under the DGCL.
Our stockholders also have the power to change or repeal our bylaws.
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DESCRIPTION
OF COMMON STOCK
The
following summary description of the common stock of PacWest Bancorp does not
purport to be complete and is qualified in its entirety by reference to our
certificate of incorporation and bylaws, as well as the DGCL. Pursuant to our
certificate of incorporation, we have the authority to issue up to 50,000,000
shares of common stock, par value $0.01 per share. Each share of PacWest Bancorp common stock
has the same relative rights, and is identical in all respects with, each other
share of PacWest Bancorp common stock. Our common stock is traded on the NASDAQ
Global Select Market under the symbol PACW.
Voting
Rights
:
Holders of
PacWest Bancorp common stock are entitled to one vote per share on all matters
requiring stockholder action, including, but not limited to, the election of
directors. Holders of PacWest Bancorp common stock are entitled to cumulate
their votes for the election of directors.
In an election of directors under cumulative voting, each share of
voting stock is entitled to vote the number of votes to which such share would
normally be entitled, multiplied by the number of directors to be elected. A
stockholder may then cast all such votes for a single candidate or may allocate
them among as many candidates as the stockholder may choose. Cumulative voting
may enable a minority stockholder or group of stockholders to elect at least
one representative to the board. Without cumulative voting, the holders of a
majority of the shares present at an annual meeting would have the power to
elect all the directors to be elected at that meeting, and no person could be
elected without the support of a majority of the stockholders voting. Without
cumulative voting, any director or the entire board of directors of a
corporation may be removed with or without cause with the approval of a
majority of the outstanding shares entitled to vote at an election of
directors.
Dividends
:
Holders of PacWest Bancorp common stock may receive
dividends when, as and if declared by our board of directors out of funds
legally available for payment of dividends, subject to any restrictions imposed
by federal regulators and the payment of any preferential amounts to which any
class of preferred stock may be entitled. Other restrictions on our ability to
pay dividends are described below under Restrictions on Dividends.
Liquidation
Preference
: Holders of common stock are not entitled to a
liquidation preference in respect of those shares. Upon liquidation,
dissolution or winding up of PacWest Bancorp, holders of PacWest Bancorp common
stock would be entitled to share ratably in all assets remaining after the
payment of all liabilities of PacWest Bancorp and of preferential amounts to
which any preferred stock may be entitled.
Other
Matters
: PacWest Bancorps certificate of incorporation and
bylaws do not provide for preemptive or other subscription rights. PacWest
Bancorp common stock is not subject to call or redemption.
Restrictions
on Dividends
: We are incorporated in Delaware and are
governed by the DGCL. Delaware law allows a corporation to pay dividends
only out of surplus, as determined under Delaware law or, if there is no
surplus, out of net profits for the fiscal year in which the dividend was
declared and for the preceding fiscal year. Under Delaware law, however,
we cannot pay dividends out of net profits if, after we pay the dividend, our
capital would be less than the capital represented by the outstanding stock of
all classes having a preference upon the distribution of assets.
As a
bank holding company, our ability to pay dividends is affected by the ability
of our bank subsidiary to pay dividends to us. In addition, our banking
subsidiary is a state-chartered bank, which is subject to state regulations
that limit dividends. Refer to BusinessSupervision and RegulationBank
Holding Company Regulation and BusinessSupervision and RegulationRegulation
of the Bank in our most recent Annual Report on Form 10K and similar
sections in our future filings for more information about restrictions on the
ability of our subsidiary to pay us dividends.
Transfer
Agent
: The transfer agent for our common stock is Wells Fargo
Shareowner Services.
Restrictions
on Ownership of Our Common Stock
: The Bank Holding Company
Act of 1956, or the Bank Holding Company Act, requires any bank holding
company (as defined in that Act) to obtain the approval of the Board of
Governors of the Federal Reserve System prior to acquiring more than 5% of our
outstanding common stock. Any holder of 25% or more of our outstanding
common stock, other than an individual, is subject to regulation as a bank
holding company under the Bank Holding Company Act. In addition, any person is
required to
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obtain prior approval of the Federal Reserve Board to acquire 10% or
more of our outstanding common stock under the Change in Bank Control Act of
1978.
SELLING
STOCKHOLDER
We are
registering for resale shares of common stock issued to the selling
stockholder. We are registering the shares, pursuant to the Stock Purchase
Agreement, dated as of August 29, 2008, entered into with the selling
stockholder, which we refer to as the Stock Purchase Agreement. The purpose of
this registration is to permit the selling stockholder to resell the shares
when and as it deems appropriate and in accordance with the Stock Purchase
Agreement. We do not know when or in what amounts the selling stockholder may
offer our common stock for sale. The selling stockholder may elect not to sell
any or all of the shares offered by this prospectus. Because the selling
stockholder may sell all or some of its shares pursuant to this offering, and
because we have no knowledge of any agreements, arrangements or understandings
with respect to the sale of any of our common stock that are or will be held by
the selling stockholder after completion of the offering, we cannot estimate
the number of shares of our common stock that will be held by the selling stockholder
in the future. However, for purposes of this table, we have assumed that the
selling stockholder will sell all its shares and that none of the shares
covered by the prospectus will be held by the selling stockholder after
completion of the offering. Except as indicated otherwise in the table below,
the selling stockholder has sole voting power and disposition power with
respect to all of our common stock listed as owned by the selling stockholder.
SHARES OF COMMON STOCK REGISTERED FOR RESALE
|
|
Number of Shares
Beneficially Owned Prior
to Offering
|
|
Number of
Shares
Offered
|
|
Number of Shares
Beneficially Owned
After Offering
|
|
Name of Selling Stockholder
|
|
Number
|
|
Percent
|
|
Hereby
|
|
Number
|
|
Percent
|
|
CapGen Capital Group II LP (1)
|
|
3,846,153
|
(1)
|
12.38
|
%(2)
|
3,846,153
|
|
0
|
|
0
|
|
(1)
According to the information provided by the selling
stockholder on Schedule 13D filed with the SEC on January 22, 2009, as the
sole general partner of CapGen Capital Group II LP, CapGen Capital Group II LLC
(CapGen LLC) may be deemed to be the indirect beneficial owner of such
shares. Mr. Eugene A. Ludwig,
managing member of CapGen LLC, may also be deemed to be the indirect beneficial
owner of such shares. Beneficial ownership is determined under rules promulgated
by the SEC, and the information may not represent beneficial ownership for any
other purpose. Pursuant to such rules,
CapGen LLC and Mr. Ludwig each disclaims beneficial ownership of such
shares, except to the extent of their pecuniary interest.
(2)
Based on 31,059,100 shares, excluding 42,830
treasury shares and 1,274,689 shares of unvested restricted stock, as of March 5,
2009.
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PLAN
OF DISTRIBUTION
The
resale shares covered by this prospectus may be offered and sold from time to
time by the selling stockholder. The term selling stockholder includes
pledgees, donees, transferees or other successors-in-interest that receive the
resale shares from the selling stockholder as a gift, distribution or other
transfer (including a purchase) after the date of this prospectus in accordance
with the Stock Purchase Agreement. To the extent required by applicable law,
this prospectus may be amended and supplemented from time to time to describe a
specific plan of distribution.
We
will not receive any proceeds from the sale of the shares by the selling
stockholder, but we have paid or will pay the following expenses, estimated to
be $31,512, in connection with the registration of the shares:
·
registration
fees;
·
blue sky filing
fees;
·
fees and
disbursements of our counsel
·
expenses of our
independent accountant.
We
have no obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of our common stock offered hereby. We also have no
obligation to pay any out-of-pocket expenses of the selling stockholder or any
transfer taxes relating to the registration or sale of the common stock.
The
selling stockholder will act independently of us in making decisions with
respect to the timing, manner and size of each sale of the resale shares. These
sales may be made at a fixed price or prices, which may be changed, at prices
quoted on the NASDAQ or at prices related to the then current market price and
under terms then prevailing. Sales of the resale shares may also be made by one
or more of the following methods, without limitation:
·
ordinary
brokerage transactions and transactions in which the broker solicits
purchasers,
·
sales at the
market to or through a market maker or into an existing trading market (on an
exchange or otherwise), for the resale shares,
·
sales in other
ways not involving market makers or established trading markets,
·
through put or
call transactions relating to the resale shares,
·
through the
distribution of the resale shares by the selling stockholder to its partners,
members or stockholders,
·
block trades in
which the broker-dealer will attempt to sell the resale shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction,
·
in privately
negotiated transactions, and
·
any combination
of any of these methods of sale or any other method permitted by law.
In
connection with the distributions of the resale shares or otherwise, the selling
stockholder may:
·
enter into
hedging transactions with broker-dealers or other financial institutions, which
may in turn engage in short sales of the resale shares in the course of hedging
the positions they assume,
·
sell the shares
short and deliver the resale shares to close out such short positions,
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·
enter into
option or other transactions with broker-dealers or other financial
institutions which require the delivery to them of resale shares offered by
this prospectus, which they may in turn resell, or
·
pledge shares to
broker-dealers or other financial institutions, which, upon a default by the
pledgee under the transaction to which such pledge relates, they may in turn
resell.
In
addition, the selling stockholder may sell the shares pursuant to Rule 144
adopted under the Securities Act of 1933, which we refer to as the Securities
Act, as permitted by that rule, or under Section 4(1) of the
Securities Act, rather than pursuant to this prospectus.
In
effecting sales, broker-dealers or agents engaged by the selling stockholder
may arrange for other broker-dealers to participate. Broker-dealers or agents
may receive commissions, discounts or concessions from the selling stockholder,
in amounts to be negotiated immediately prior to the sale.
In
offering the resale shares covered by this prospectus, the selling stockholder,
and any broker-dealers and any other participating broker-dealers who execute
sales for the selling stockholder, may be deemed to be underwriters within
the meaning of the Securities Act in connection with these sales. Any profits
realized by the selling stockholder and the compensation of such broker-dealers
may be deemed to be underwriting discounts and commissions. To the extent the
selling stockholder or any such broker-dealer may be deemed to be an
underwriter, the selling stockholder and such broker-dealer will be subject to
the prospectus delivery requirements of the Securities Act and may be subject
to certain statutory liabilities of, including but not limited to, Sections 11,
12 and 17 of the Securities Act and Rule 10b-5 under the Exchange Act.
In
order to comply with the securities laws of certain states, the resale shares
must be sold in those states only through registered or licensed brokers or
dealers. In addition, some states may restrict the selling stockholder from
selling the resale shares unless the shares have been registered or qualified
for sale in the applicable state or an exemption for the registration or
qualification requirement is available and is complied with.
We
will make copies of this prospectus available to the selling stockholder for
the purpose of satisfying the prospectus delivery requirements of the
Securities Act. The selling stockholder may indemnify any broker-dealer that
participates in transactions involving the sale of the resale shares against
certain liabilities, including liabilities arising under the Securities Act.
Under
the terms of the Stock Purchase Agreement, we have agreed to indemnify the
selling stockholder and certain other persons against certain liabilities in
connection with the offering of the shares of common stock offered hereby,
including certain liabilities arising under the Securities Act.
VALIDITY
OF SECURITIES
The
validity of the shares of common stock offered hereby will be passed upon for
our Company by Jared M. Wolff, our Executive Vice President, General Counsel and
Secretary. As of March 5, 2009, Jared M. Wolff beneficially owned 2,543
shares of our common stock.
EXPERTS
The
consolidated financial statements of the Company as of December 31, 2008
and 2007, and for each of the years in the three-year period ended December 31,
2008, and managements assessment of the effectiveness of internal control over
financial reporting as of December 31, 2008 have been incorporated by
reference in this prospectus and in the registration statement in reliance upon
the report of KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon authority of said firm as experts in
accounting and auditing.
8
Table of Contents
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14.
Other
Expenses of Issuance and Distribution.
The
following table sets forth all fees and expenses payable by the registrant in
connection with the issuance and distribution of the securities being
registered hereby. All such expenses, except the SEC registration fee, are
estimated.
SEC registration fee
|
|
$
|
1,512
|
|
Accounting fees and expenses
|
|
$
|
7,000
|
|
Legal fees and expenses
|
|
$
|
15,000
|
|
Miscellaneous fees and expenses
|
|
$
|
8,000
|
|
Total
|
|
$
|
31,512
|
|
Item
15.
Indemnification
of Directors and Officers.
Section 145
of the DGCL provides that a corporation may indemnify directors and officers as
well as other employees and individuals against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with any threatened, pending or completed
actions, suits or proceedings in which such person is made a party by reason of
such person being or having been a director, officer, employee of or agent to
PacWest Bancorp or Pacific Western Bank. The statute provides that it is not
exclusive of other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 9
of PacWest Bancorps certificate of incorporation provides that a director of
the Company shall not be liable to the registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, except to the
extent that such exemption from liability or limitation thereof is not
permitted under Delaware law.
Section 6.4
of PacWest Bancorps bylaws provides that, to the maximum extent permitted by
law, the registrant shall indemnify any person made or threatened to be made a
party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person or such
persons testator or intestate is or was a director, officer or employee of the
registrant or serves or served at the request of the registrant any other
enterprise as a director, officer or employee. Expenses, including attorneys
fees, incurred by any such person in defending any such action, suit or
proceeding shall be paid or reimbursed by the registrant promptly upon receipt
by it of an undertaking of such person to repay such expenses if it shall
ultimately be determined that such person is not entitled to be indemnified by
the registrant. The bylaws do not limit the power of PacWest Bancorp or its
board of directors to provide other indemnification and expense reimbursement
rights to directors, officers, employees, agents and other persons as otherwise
pursuant to the bylaws.
The
registrant maintains insurance policies under which its directors and officers
are insured, within the limits and subject to the limitations of the policies,
against expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities that might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been directors or officers of the registrant.
II-1
Table of Contents
Item
16.
Exhibits
Exhibit No.
|
|
Description
|
|
|
|
4.1
|
|
Certificate of
Incorporation, as amended, of PacWest Bancorp, a Delaware corporation
(Incorporated by reference to Exhibit 3.1 to the Registrants Current
Report on Form 8-K filed on May 14, 2008).
|
|
|
|
4.2
|
|
Bylaws of
PacWest Bancorp, a Delaware corporation, dated April 22, 2008
(Incorporated by reference to Exhibit 3.2 to the Registrants Current
Report on Form 8-K filed on May 14, 2008).
|
|
|
|
5.1*
|
|
Opinion and
Consent of Jared M. Wolff.
|
|
|
|
10.1
|
|
Stock Purchase
Agreement by and between PacWest Bancorp and CapGen Capital Group II LP,
dated as of August 29, 2008 (Incorporated by reference to
Exhibit 10.1 to the Registrants Current Report on Form 8-K filed
on September 4, 2008).
|
|
|
|
23.1*
|
|
Consent of
KPMG LLP.
|
|
|
|
23.2*
|
|
Consent of Jared
M. Wolff (included in Exhibit 5.1).
|
|
|
|
24.1*
|
|
Power of
Attorney (included on the signature page hereto).
|
*
Filed
herewith.
Item
17.
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;
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 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 the registration statement or any material change to such information in the
registration statement;
provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement.
II-2
Table of Contents
(2)
That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(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)
That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(1)
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
(2)
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 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.
(c)
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of our annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plans 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; and
(d)
Insofar
as indemnification for liabilities arising under the Securities Act 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 SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the 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 and will be governed by the final adjudication
of such issue.
II-3
Table of Contents
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Los
Angeles, State of California, on the 9th day of March, 2009.
|
PACWEST BANCORP
|
|
|
|
|
|
By:
|
/s/
|
MATTHEW P. WAGNER
|
|
|
|
Matthew P. Wagner
|
|
Chief
Executive Officer
|
POWER OF ATTORNEY AND SIGNATURES
We,
the undersigned directors and officers of PacWest Bancorp, do hereby constitute
and appoint Matthew P. Wagner, Lynn M. Hopkins, Victor R. Santoro and Jared M.
Wolff, and each of them singly, our true and lawful attorneys-in-fact and
agents with full power to them, and each of them singly, to do any and all acts
and things in our names and on our behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our name in the
capacities indicated below, which said attorneys and agents may deem necessary
or advisable to enable said registrant to comply with the Securities Act and
any rules, regulations and requirements of the SEC, in connection with this
Registration Statement, including specifically, but without limitation, power
and authority to sign for us or any of us in our names in the capacities
indicated below, any and all amendments (including post-effective amendments)
hereof; and we do hereby ratify and confirm all that said attorneys-in-fact and
agents shall do or cause to be done by virtue thereof
Pursuant
to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the capacities and on the dates indicated
.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ JOHN M. EGGEMEYER
|
|
Chairman of the Board
of Directors
|
|
March 9, 2009
|
John M. Eggemeyer
|
|
|
|
|
|
|
|
|
|
/s/ MATTHEW P. WAGNER
|
|
Chief Executive Officer
and Director (Principal Executive
|
|
March 9, 2009
|
Matthew P. Wagner
|
|
Officer)
|
|
|
|
|
|
|
|
/s/ VICTOR R. SANTORO
|
|
Executive Vice
President and Chief Financial Officer (Principal
|
|
March 9, 2009
|
Victor R. Santoro
|
|
Financial Officer and
Principal Accounting Officer)
|
|
|
|
|
|
|
|
/s/ MARK N. BAKER
|
|
Director
|
|
March 9, 2009
|
Mark N. Baker
|
|
|
|
|
|
|
|
|
|
/s/ GARY W. DEEMS
|
|
Director
|
|
March 9, 2009
|
Gary W. Deems
|
|
|
|
|
|
|
|
|
|
/s/ STEPHEN M. DUNN
|
|
Director
|
|
March 9, 2009
|
Stephen M. Dunn
|
|
|
|
|
|
|
|
|
|
/s/ BARRY C. FITZPATRICK
|
|
Director
|
|
March 9, 2009
|
Barry C. Fitzpatrick
|
|
|
|
|
|
|
|
|
|
/s/ GEORGE E. LANGLEY
|
|
Director
|
|
March 9, 2009
|
George E. Langley
|
|
|
|
|
II-4
Table of Contents
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ SUSAN E. LESTER
|
|
Director
|
|
March 9, 2009
|
Susan E. Lester
|
|
|
|
|
|
|
|
|
|
/s/ TIMOTHY B. MATZ
|
|
Director
|
|
March 9, 2009
|
Timothy B. Matz
|
|
|
|
|
|
|
|
|
|
/s/ ARNOLD W. MESSER
|
|
Director
|
|
March 9, 2009
|
Arnold W. Messer
|
|
|
|
|
|
|
|
|
|
/s/ DANIEL B. PLATT
|
|
Director
|
|
March 9, 2009
|
Daniel B. Platt
|
|
|
|
|
|
|
|
|
|
/s/ JOHN W. ROSE
|
|
Director
|
|
March 9, 2009
|
John W. Rose
|
|
|
|
|
|
|
|
|
|
/s/ ROBERT A. STINE
|
|
Director
|
|
March 9, 2009
|
Robert A. Stine
|
|
|
|
|
|
|
|
|
|
/s/ DAVID S. WILLIAMS
|
|
Director
|
|
March 9, 2009
|
David S. Williams
|
|
|
|
|
II-5
Table of Contents
EXHIBIT
INDEX
Exhibit No.
|
|
Description
|
|
|
|
4.1
|
|
Certificate of
Incorporation, as amended, of PacWest Bancorp, a Delaware corporation
(Incorporated by reference to Exhibit 3.1 to the Registrants Current
Report on Form 8-K filed on May 14, 2008).
|
|
|
|
4.2
|
|
Bylaws of
PacWest Bancorp, a Delaware corporation, dated April 22, 2008
(Incorporated by reference to Exhibit 3.2 to the Registrants Current
Report on Form 8-K filed on May 14, 2008).
|
|
|
|
5.1*
|
|
Opinion and
Consent of Jared M. Wolff.
|
|
|
|
10.1
|
|
Stock Purchase
Agreement by and between PacWest Bancorp and CapGen Capital Group II LP,
dated as of August 29, 2008 (Incorporated by reference to
Exhibit 10.1 to the Registrants Current Report on Form 8-K filed
on September 4, 2008).
|
|
|
|
23.1*
|
|
Consent of
KPMG LLP.
|
|
|
|
23.2*
|
|
Consent of Jared
M. Wolff (included in Exhibit 5.1).
|
|
|
|
24.1*
|
|
Power of
Attorney (included on the signature page hereto).
|
*
Filed herewith.
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