Unassociated Document
As filed
with the Securities and Exchange Commission on March 19,
2010
Registration
Nos. 333- 164259
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
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BANNER
CORPORATION
(Exact
name of registrant as specified in its
charter)
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Washington
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91-1691604
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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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10
S. First Avenue
Walla
Walla, Washington 99362
(509)
527-3636
(Address,
including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Albert
H. Marshall
Vice
President
Banner
Corporation
10
S. First Avenue
Walla
Walla, Washington 99362
(509)
527-3636
(Name,
address, including zip code, and telephone number, including area code, of
agent for service)
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Copy
of communications to:
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John
F. Breyer, Jr., Esq.
Breyer
& Associates PC
8180
Greensboro Drive, Suite 785
McLean,
Virginia 22102
(703)
883-1100
(703)
883-2911 (fax)
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Dave
M. Muchnikoff, P.C.
Craig
M. Scheer, P.C.
Silver,
Freedman & Taff, L.L.P.
3299
K Street, N.W., Suite 100
Washington,
D.C. 20007
(202)
295-4500
(202)
337-5502 (fax)
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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.
[__]
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 o
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Accelerated
filer þ
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Non-accelerated
filer o
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Smaller reporting company o
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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)
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PROPOSED
MAXIMUM
OFFERING
PRICE
PER UNIT(1)(2)
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PROPOSED
MAXIMUM
AGGREGATE
OFFERING
PRICE(1)(2)
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AMOUNT
OF
REGISTRATION
FEE(3)
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Common
Stock (4)
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Preferred
Stock (5)
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Depositary
Shares (6)
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Purchase
Contracts (7)
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Warrants
(8)
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Units(9)
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Total
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$ 150,000,000
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100%
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$ 150,000,000
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$ 3,565
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(1)
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In
no event will the aggregate initial offering price of all securities
issued exceed $100,000,000. The registered securities may be
offered for U.S. dollars or the equivalent thereof in foreign currencies,
currency units or composite currencies. The registered
securities may be sold separately, together or as units with other
registered securities.
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(2)
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Certain
information as to each class of securities to be registered is not
specified, in accordance with General Instruction II.D. to Form S-3 under
the Securities Act and
Rule 457(o) under the Securities
Act.
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(3)
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Pursuant
to Rule 415(a)(6) under the Securities Act, the securities registered
pursuant to this Registration Statement include unsold securities
previously registered on the Registration Statement on Form S-3 that we
filed on December 20, 2006 (File No. 333-139520)(the “Prior Registration
Statement”). The Prior Registration Statement registered
securities for a proposed maximum aggregate offering price of
$100,000,000, none of which have been sold. In connection with
the registration of such unsold securities on the Prior Registration
Statement, we paid a registration fee of $10,700, which fee will continue
to be applied to such unsold securities that are included in this
Registration Statement; accordingly, no additional filing fee is due other than for the additional $50,000,000 in securities
being registered in this Pre-Effective Amendment No.
1 . Pursuant to Rule 415(a)(5) under the Securities Act,
we may continue to offer and sell such unsold securities under the Prior
Registration Statement that are included in this Registration Statement
until the earlier of the effective date of this Registration Statement and
July 8, 2010.
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(4)
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Subject
to note (1) above, we are registering an indeterminate number of shares of
common stock. We are also registering an indeterminate number
of shares of common stock as may be issuable upon conversion of the
preferred stock or upon exercise of warrants registered
hereby.
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(5)
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Subject
to note (1) above, we are registering an indeterminate number of shares of
preferred stock as may be sold from time to time by us. We are
also registering an indeterminate number of shares of preferred stock as
shall be issuable upon exercise of warrants registered
hereby
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(6)
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Such
indeterminate number of depositary shares to be evidenced by depositary
receipts, representing a fractional interest of a share of preferred
stock.
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(7)
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Subject
to note (1) above, we are registering an indeterminate number of purchase
contracts, which may require the holder thereof to purchase or sell: (i)
our common stock, preferred stock or depository shares; (ii) securities of
an entity unaffiliated with us, a basket of those securities, an index or
indices of those securities or any combination of the foregoing; (iii)
currencies; or (iv) commodities.
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(8)
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Subject
to note (1) above, we are registering an indeterminate number of warrants
representing rights to purchase debt securities, shares of common stock or
preferred stock or depositary shares registered
hereby.
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(9)
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Subject
to note (1) above, we are registering an indeterminable number of units,
which will be comprised of two or more of the securities registered hereby
in any combination.
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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 said Section 8(a),
may determine.
PROSPECTUS
$ 150,000,000
Banner
Corporation
Common
Stock
Preferred
Stock
Depositary
Shares
Purchase
Contracts
Warrants
Units
We may
offer and sell from time to time, shares of our common stock or preferred stock,
depository shares, purchase contracts, warrants and units comprised of two or
more of these securities in any combination. The preferred stock may be
convertible into or exchangeable for our common stock. This prospectus provides
you with a general description of these securities. Each time we offer any
securities pursuant to this prospectus, we will provide you with a prospectus
supplement, and, if necessary, a pricing supplement, that will describe the
specific amounts, prices and terms of the securities being offered. These
supplements may also add, update or change information contained in this
prospectus. To understand the terms of the securities offered, you should
carefully read this prospectus with the applicable supplements, which together
provide the specific terms of the securities we are offering.
Our
common stock is traded on the NASDAQ Global Select Market under the symbol
“BANR.”
These
securities are not deposits or obligations of a bank or savings association and
are not insured or guaranteed by the Federal Deposit Insurance Corporation or
any other governmental agency.
This
prospectus may be used to offer and sell securities only if accompanied by the
prospectus supplement for those securities.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined that this prospectus
or the accompanying prospectus supplement is accurate or complete. Any
representation to the contrary is a criminal offense.
The
date of this prospectus is ________, 2010
IMPORTANT
NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS AND THE
ACCOMPANYING
PROSPECTUS SUPPLEMENT
We may
provide information to you about the securities we are offering in three
separate documents that progressively provide more detail:
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this
prospectus, which provides general information, some of which may not
apply to your securities;
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the
accompanying prospectus supplement, which describes the terms of the
securities, some of which may not apply to your securities;
and
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if
necessary, a pricing supplement, which describes the specific terms of
your securities.
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If the
terms of your securities vary among the pricing supplement, the prospectus
supplement and the accompanying prospectus, you should rely on the information
in the following order of priority:
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the
pricing supplement, if any;
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the
prospectus supplement; and
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We
include cross-references in this prospectus and the accompanying prospectus
supplement to captions in these materials where you can find further related
discussions. The following table of contents and the table of contents included
in the accompanying prospectus supplement provide the pages on which these
captions are located.
Unless
indicated in the applicable prospectus supplement, we have not taken any action
that would permit us to publicly sell these securities in any jurisdiction
outside the United States. If you are an investor outside the United States, you
should inform yourself about and comply with any restrictions as to the offering
of the securities and the distribution of this prospectus.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or the “SEC,” utilizing a “shelf” registration process.
Under this shelf registration process, we may from time to time offer and sell
the securities described in this prospectus in one or more offerings, up to a
total dollar amount for all offerings of $ 150,000,000 . This prospectus provides you with a general
description of the securities covered by it. Each time we offer these
securities, we will provide a prospectus supplement that will contain specific
information about the terms of the offer and include a discussion of any risk
factors or other special considerations that apply to the securities. The
prospectus supplement may also add, update or change information contained in
this prospectus. You should read this prospectus, the applicable prospectus
supplement and any pricing supplement together with the additional information
described under the heading
“Where You Can Find More Information.”
In
this prospectus, “Banner,” the “Company,” “we,” “our,” “ours,” and “us” refer to
Banner Corporation, which is a bank holding company headquartered in Walla
Walla, Washington, and its subsidiaries on a consolidated basis, unless the
context otherwise requires. References to “Banner Bank” and “Islanders Bank” in
this prospectus mean our subsidiaries, Banner Bank and Islanders Bank,
respectively, each of which is a Washington state-chartered commercial bank. We
sometimes collectively refer to Banner Bank and Islanders Bank as the “Banks,”
and each individually as a “Bank.” References to “Banner Corporation” refer to
Banner Corporation, a Washington corporation, on an unconsolidated
basis
We have
filed with the SEC a registration statement under the Securities Act of 1933, or
the “Securities Act,” that registers the offer and sale of the securities that
we may offer under this prospectus. The registration statement, including the
attached exhibits and schedules included or incorporated by reference in the
registration statement, contains additional relevant information about us. The
rules and regulations of the SEC allow us to omit certain information included
in the registration statement from this prospectus. In addition, we file
reports, proxy statements and other information with the SEC under the
Securities Exchange Act of 1934, or the “Exchange Act.”
You may
read and copy this information at the Public Reference Room of the SEC, located
at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You may
also obtain copies of this information by mail from the Public Reference Room at
prescribed rates. You may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330.
The SEC
also maintains an Internet world wide web site that contains reports, proxy
statements and other information about issuers like us who file electronically
with the SEC. The address of that site is:
http://www.sec.gov
The SEC
allows us to “incorporate by reference” information into this prospectus. This
means that we can disclose important information to you by referring you to
another document that we file separately with the SEC. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by information that is included directly
in this document or in a more recent incorporated document.
This
prospectus incorporates by reference the documents listed below that we have
previously filed with the SEC.
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SEC
Filings
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Period
or Filing Date (as applicable)
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Annual
Report on Form 10-K (including the portions of
our
2010 annual meeting proxy statement
incorporated
therein
by reference)
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Year
ended December 31, 2009
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Current
Report on Form 8-K
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Filed
on January 29, 2010
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This
prospectus also incorporates by reference the description of our common stock
set forth in the registration statement on Form 8-A (No. 0-26584) filed on
August 8, 1995, and any amendment or report filed with the SEC for the purpose
of updating such description.
In
addition, we incorporate by reference all future documents that we file with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of our initial registration statement relating to the securities until the
completion of the offering of the securities covered by this prospectus or until
we terminate this offering. These documents include periodic reports, such as
annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports
on Form 8-K (other than current reports furnished under Items 2.02 or 7.01 of
Form 8-K), as well as proxy statements.
The
information incorporated by reference contains information about us and our
business, financial condition and results of operations and is an important part
of this prospectus.
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Banner
Corporation
Attention:
Albert H. Marshall
10
South First Avenue
Walla
Walla, Washington 99362
509-526-8894
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In
addition, we maintain a corporate website, www.bannerbank.com. We make
available, through our website, our annual reports on Form 10-K, quarterly
reports on Form 10-Q, current reports on Form 8-K, and any amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of the
Exchange Act as soon as reasonably practicable after we electronically file such
material with, or furnish it to, the SEC. This reference to our website is for
the convenience of investors as required by the SEC and shall not be deemed to
incorporate any information on the website into this registration
statement.
We have
not authorized anyone to give any information or make any representation about
us that is different from, or in addition to, those contained in this prospectus
or in any of the materials that we have incorporated into this prospectus. If
anyone does give you information of this sort, you should not rely on it. If you
are in a jurisdiction where offers to sell, or solicitations of offers to
purchase, the securities offered by this document are unlawful, or if you are a
person to whom it is unlawful to direct these types of activities, then the
offer presented in this document does not extend to you. The information
contained in this document speaks only as of the date of this document unless
the information specifically indicates that another date applies.
This
prospectus, the applicable prospectus supplements and the other documents we
incorporate by reference in this prospectus, may include forward-looking
statements within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act.
Forward-looking
statements, which are based on certain assumptions and describe our future
goals, plans, strategies, and expectations, are generally identified by use of
the words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “plan,”
“project,” “seek,” “strive,” “try,” or future or conditional verbs such as
“will,” “would,” “should,” “could,” “may,” or similar
expressions. Our ability to predict results or the actual effects of
our plans or strategies is inherently uncertain. Although we believe that our
plans, intentions and expectations, as reflected in these forward-looking
statements, are reasonable, we can give no assurance that these plans,
intentions or expectations will be achieved or realized. Actual
results, performance or achievements could differ materially from those
contemplated, expressed or implied by the forward-looking statements contained
in this prospectus, the applicable prospectus supplements or any document
incorporated by reference. Important factors that could cause actual results to
differ materially from our forward-looking statements are set forth under
Item 1A—“Risk Factors” in our most recent annual report on Form 10-K, under
the caption “Risk Factors” in the applicable prospectus supplement, and in other
reports filed with the Securities and Exchange Commission. Additional
factors include, but are not limited to:
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the
credit risks of lending activities, including changes in the level and
trend of loan delinquencies and write-offs and changes in our allowance
for loan losses and provision for loan losses that may be impacted by
deterioration in the housing and commercial real estate
markets;
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changes
in general economic conditions, either nationally or in our market
areas;
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changes
in the levels of general interest rates, and the relative differences
between short and long term interest rates, deposit interest rates, our
net interest margin and funding
sources;
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fluctuations
in the demand for loans, the number of unsold homes, land and other
properties and fluctuations in real estate values in our market
areas;
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secondary
market conditions for loans and our ability to sell loans in the secondary
market;
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results
of examinations of us by the Board of Governors of the Federal Reserve
System (the “Federal Reserve Board”) and of our bank subsidiaries by the
Federal Deposit Insurance Corporation (the “FDIC”), the Washington State
Department of Financial Institutions, Division of Banks (the “Washington
DFI”) or other regulatory authorities, including the possibility that any
such regulatory authority may, among other things, institute a formal or
informal enforcement action against us or any of the Banks which could
require us to increase our reserve for loan losses, write-down assets,
change our regulatory capital position or affect our ability to borrow
funds or maintain or increase deposits, which could adversely affect our
liquidity and earnings;
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legislative
or regulatory changes that adversely affect our business including changes
in regulatory policies and principles, or the interpretation of regulatory
capital or other rules;
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our
ability to attract and retain
deposits;
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further
increases in premiums for deposit
insurance;
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our
ability to control operating costs and
expenses;
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the
use of estimates in determining fair value of certain of our assets, which
estimates may prove to be incorrect and result in significant declines in
valuation;
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staffing
fluctuations in response to product demand or the implementation of
corporate strategies that affect our workforce and potential associated
charges;
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the
failure or security breach of computer systems on which we
depend;
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our
ability to retain key members of our senior management
team;
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costs
and effects of litigation, including settlements and
judgments;
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our
ability to implement our growth
strategy;
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our
ability to successfully integrate into our operations any assets,
liabilities, customers, systems, and management personnel we have acquired
or may in the future acquire and our ability to realize related revenue
synergies and cost savings within expected time frames and any goodwill
charges related thereto;
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increased
competitive pressures among financial services
companies;
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changes
in consumer spending, borrowing and savings
habits;
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the
availability of resources to address changes in laws, rules, or
regulations or to respond to regulatory
actions;
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our
ability to pay dividends on our common and preferred stock and interest or
principal payments on our junior subordinated
debentures;
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adverse
changes in the securities markets;
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inability
of key third-party providers to perform their obligations to
us;
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changes
in accounting policies and practices, as may be adopted by the financial
institution regulatory agencies or the Financial Accounting Standards
Board, including additional guidance and interpretation on accounting
issues and details of the implementation of new accounting
methods;
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other
economic, competitive, governmental, regulatory, and technological factors
affecting our operations, pricing, products and services and the other
risks described elsewhere in this prospectus supplement, the accompanying
prospectus and the incorporated documents;
and
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future
legislative changes in the United States Department of Treasury
(“Treasury”) Troubled Asset Relief Program (“TARP”) Capital Purchase
Program.
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Additionally,
the timing and occurrence or non-occurrence of events may be subject to
circumstances beyond our control.
Any
forward-looking statements are based upon management’s beliefs and assumptions
at the time they are made. We undertake no obligation to publicly update or
revise any forward-looking statements included or incorporated by reference in
this prospectus or to update the reasons why actual results could differ from
those contained in such statements, whether as a result of new information,
future events or otherwise. In light of these risks, uncertainties and
assumptions, the forward-looking statements discussed in this prospectus
supplement or the accompanying prospectus or the incorporated documents might
not occur, and you should not put undue reliance on any forward-looking
statements.
This
summary provides a general description of the securities we may offer. This
summary is not complete and does not contain all of the information that may be
important to you. For a more complete understanding of us and the terms of the
securities we will offer, you should read carefully this entire prospectus,
including the “Risk Factors” section, the applicable prospectus supplement for
the securities and the other documents we refer to and incorporate by reference.
In particular, we incorporate important business and financial information into
this prospectus by reference.
The
Securities We May Offer
We may
use this prospectus to offer securities in an aggregate amount of up to $ 150,000,000 in one or more offerings. A prospectus
supplement, which we will provide each time we offer securities, will describe
the amounts, prices and detailed terms of the securities and may describe risks
associated with an investment in the securities in addition to those described
in the “Risk Factors” section of this prospectus. Terms used in this
prospectus will have the meanings described in this prospectus unless otherwise
specified.
We may
sell the securities to or through underwriters, dealers or agents or directly to
purchasers. We, as well as any agents acting on our behalf, reserve the sole
right to accept or to reject in whole or in part any proposed purchase of our
securities. Each prospectus supplement will set forth the names of any
underwriters, dealers or agents involved in the sale of our securities described
in that prospectus supplement and any applicable fee, commission or discount
arrangements with them.
Common
Stock
We may
sell our common stock, par value $0.01 per share. In a prospectus supplement, we
will describe the aggregate number of shares offered and the offering price or
prices of the shares.
Preferred
Stock; Depositary Shares
We may
sell shares of our preferred stock in one or more series. In a prospectus
supplement, we will describe the specific designation, the aggregate number of
shares offered, the dividend rate or manner of calculating the dividend rate,
the dividend periods or manner of calculating the dividend periods, the ranking
of the shares of the series with respect to dividends, liquidation and
dissolution, the stated value of the shares of the series, the voting rights of
the shares of the series, if any, whether and on what terms the shares of the
series will be convertible or exchangeable, whether and on what terms we can
redeem the shares of the series, whether we will offer depositary shares
representing shares of the series and if so, the fraction or multiple of a share
of preferred stock represented by each depositary share, whether we will list
the preferred stock or depositary shares on a securities exchange and any other
specific terms of the series of preferred stock.
Purchase
Contracts
We may
issue purchase contracts, including purchase contracts issued as part of a unit
with one or more other securities, for the purchase or sale of: our preferred
stock, depositary shares or common stock; securities of an entity not affiliated
with us, a basket of those securities, an index or indices of those securities
or any combination of the foregoing; currencies; or commodities. The price per
share of common stock, preferred stock or depositary shares, or the price of the
other securities, currencies or commodities that are the subject of the
contract, as applicable, may be fixed at the time the purchase contracts are
issued or may be determined by reference to a specific formula contained in the
purchase contracts. We may issue purchase contracts in such amounts and in as
many distinct series as we wish.
Units
We may
sell any combination of one or more of the other securities described in this
prospectus, together as units. In a prospectus supplement, we will describe the
particular combination of securities constituting any units and any other
specific terms of the units.
Warrants
We may
sell warrants to purchase shares of our preferred stock or depositary shares or
shares of our common stock. In a prospectus supplement, we will inform you of
the exercise price and other specific terms of the warrants, including whether
our or your obligations, if any, under any warrants may be satisfied by
delivering or purchasing the underlying securities or their cash
value.
RISK
FACTORS
Before
making an investment decision, you should carefully consider the risks described
under “Risk Factors” in the applicable prospectus supplement and in our most
recent Annual Report on Form 10-K, and in our updates to those Risk Factors in
our Quarterly Reports on Form 10-Q and any Current Report on Form 8-K in which
we update those Risk Factors, together with all of the other information
appearing in this prospectus or incorporated by reference into this prospectus
and the applicable prospectus supplement, in light of your particular investment
objectives and financial circumstances. In addition to those risk
factors, there may be additional risks and uncertainties of which management is
not aware of focused on or that management deems immaterial. Our
business, financial condition or results or operations could be materially
adversely affected by any of these risks. The trading price of our
securities could decline due to any of these risks, and you may lose all or part
of your investment.
BANNER
CORPORATION
Banner
Corporation is a bank holding company incorporated in the State of Washington.
We are primarily engaged in the business of planning, directing and coordinating
the business activities of our wholly-owned subsidiaries, Banner Bank and
Islanders Bank. Banner Bank is a Washington-chartered commercial bank that
conducts business from its main office in Walla Walla, Washington and, as of
December 31 , 2009, its 89 branch offices and seven
loan production offices located in Washington, Oregon and Idaho. Islanders Bank
is also a Washington-chartered commercial bank that conducts business from three
locations in San Juan County, Washington. Banner Corporation is subject to
regulation by the Federal Reserve Board. Banner Bank and Islanders Bank are
subject to regulation by the Washington DFI and the FDIC.
As of
December 31 , 2009, we had total consolidated assets
of $ 4.7 billion, total loans of $ 3.7 billion, total deposits of $3.9 billion and total
stockholders’ equity of $ 405 million.
Banner
Bank is a regional bank which offers a wide variety of commercial banking
services and financial products to individuals, businesses and public sector
entities in its primary market areas. Islanders Bank is a community bank which
offers similar banking services to individuals, businesses and public entities
located in the San Juan Islands in the State of Washington. Our primary business
is that of a traditional financial institution, accepting deposits and
originating loans in locations surrounding our offices in portions of
Washington, Oregon and Idaho. Banner Bank is also an active participant in the
secondary residential mortgage market, engaging in mortgage banking operations
largely through the origination and sale of one- to four-family residential
loans. Lending activities include commercial business and commercial real estate
loans, agriculture business loans, construction and land development loans, one-
to four-family residential loans and consumer loans. A portion of Banner Bank’s
construction and mortgage lending activities are conducted through its
subsidiary, Community Financial Corporation, which is located in the Lake Oswego
area of Portland, Oregon.
Our
common stock is traded on the NASDAQ Global Select Market under the ticker
symbol “BANR.” Our principal executive offices are located at 10 South First
Avenue, Walla Walla, Washington 99362-0265. Our telephone number is
(509) 527-3636.
Additional
information about us and our subsidiaries is included in documents incorporated
by reference in this prospectus. See “Where You Can Find More
Information” on page 4 of this prospectus.
CONSOLIDATED
RATIOS OF EARNINGS TO
FIXED CHARGES AND PREFERRED STOCK
DIVIDEND
REQUIREMENT
Our
historical consolidated ratios of earnings to fixed charges and preferred stock
dividend requirement for the periods indicated, both including and excluding
interest on deposits, are set forth in the table below. The ratio of
earnings to fixed charges and preferred stock dividend requirement is computed
by dividing (i) income from continuing operations before income taxes and
fixed charges by (ii) the sum of total fixed charges and (pre-tax)
preferred stock dividend requirement. For purposes of computing these ratios,
fixed charges excluding interest on deposits represents interest expense on
Federal Home Loan Bank advances and other borrowed funds and fixed charges
including interest on deposits represents all interest
expense.
|
|
Year
Ended December 31, |
|
|
2009 |
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
|
|
|
|
|
|
|
|
|
Restated
|
|
Restated
|
|
|
|
Ratio
of Earnings to Fixed Charges and
Preferred
Stock Dividend Requirement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Excluding
interest on deposits
|
--(1) |
|
--( 2 )
|
|
4.37x
|
|
2.82x
|
|
1.58x
|
|
|
|
less
goodwill impairment
|
-- |
|
0.13x
|
|
4.37x
|
|
2.82x
|
|
1.58x
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Including
interest on deposits
|
0.39x |
|
--( 3 )
|
|
1.38x
|
|
1.41x
|
|
1.21x
|
|
|
|
less
goodwill impairment
|
0.39x |
|
0.89x
|
|
1.38x
|
|
1.41x
|
|
1.21x
|
|
|
The
earnings coverage for some of these periods was inadequate to cover total fixed
charges. The coverage deficiencies were:
|
(1)
|
for
the year ended December 31, 2009: $43.5
million.
|
|
(2)
|
for
the year ended December 31, 2008: $119.0
million.
|
|
(3)
|
for
the year ended December 31, 2008: $8.7
million.
|
We intend
to use the net proceeds from the sale of the securities for general corporate
purposes unless otherwise indicated in the prospectus supplement relating to a
specific issue of securities. Our general corporate purposes may include
repurchasing our outstanding securities, financing possible acquisitions of
branches, other financial institutions, other businesses that are related to
banking or diversification into other banking-relating businesses, extending
credit to, or funding investments in, our subsidiaries and repaying, reducing or
refinancing indebtedness.
The
precise amounts and the timing of our use of the net proceeds will depend upon
market conditions, our subsidiaries’ funding requirements, the availability of
other funds and other factors. Until we use the net proceeds from the sale of
any of our securities for general corporate purposes, we will use the net
proceeds to reduce our indebtedness or for temporary investments. We expect that
we will, on a recurrent basis, engage in additional financings as the need
arises to finance our corporate strategies, to fund our subsidiaries, to finance
acquisitions or otherwise.
Our
subsidiary banks, Banner Bank and Islanders Bank, are Washington-chartered
commercial banks and are subject to regulation and supervision by the Washington
DFI and by the FDIC. As the holding company for the Banks, we are a bank holding
company subject to regulation and supervision by the FRB.
Because
we are a holding company, our rights and the rights of the holders of the
preferred stock and common stock we may offer under this prospectus to
participate in the assets of any of our subsidiaries upon the subsidiary’s
liquidation or reorganization will be subject to the prior claims of the
subsidiary’s creditors, except to the extent that we may ourselves be a creditor
with recognized claims against the subsidiary.
In
addition, dividends, loans and advances from the Banks are restricted by federal
and state statutes and regulations. The FDIC and the Washington DFI
can limit each Bank’s payment of dividends based on, among other factors, the
maintenance of adequate capital for such Bank.
In
addition, there are various statutory and regulatory limitations on the extent
to which the Banks can finance us or otherwise transfer funds or assets to us,
whether in the form of loans, extensions of credit, investments or asset
purchases. These extensions of credit and other transactions involving the Banks
and us are limited in amount to 10% of each Bank’s capital and surplus and, with
respect to us and any nonbanking subsidiaries, to an
aggregate
of 20% of each Bank’s capital and surplus. Furthermore, loans and extensions of
credit are required to be secured in specified amounts and are required to be on
terms and conditions consistent with safe and sound banking
practices.
For a
discussion of the material elements of the regulatory framework applicable to
bank holding companies and their subsidiaries, and specific information relevant
to us, you should refer to our most recent Annual Report on Form 10-K and the
subsequent quarterly and current reports filed by us with the SEC pursuant to
the Exchange Act, which are incorporated by reference in this prospectus. This
regulatory framework is intended primarily for the protection of depositors and
the deposit insurance funds that insure deposits of banks, rather than for the
protection of security holders.
Changes
to the laws and regulations applicable to us or our subsidiaries can affect the
operating environment of bank holding companies and their subsidiaries in
substantial and unpredictable ways. We cannot accurately predict whether those
changes in laws and regulations will occur, and, if those changes occur, the
ultimate effect they would have upon our or our subsidiaries’ financial
condition or results of operations.
Our
authorized capital stock consists of:
|
·
|
75,000,000
shares of common stock, par value $.01 per share;
and
|
|
·
|
500,000
shares of preferred stock, par value $.01 per
share.
|
As of
March 31, 2010 , there
were 23,101,149 shares of our common stock
issued and outstanding and 124,000 shares of our preferred stock issued and
outstanding, all of which consisted of our Fixed Rate, Cumulative Perpetual
Preferred Stock, Series A (the “Series A Preferred Stock”). In this
section we describe certain features and rights of our common stock and
preferred stock. The summary does not purport to be exhaustive and is qualified
in its entirety by reference to our Articles of Incorporation, Bylaws, and to
applicable Washington law. You should refer to the provisions of our Articles of
Incorporation and Bylaws because they, and not the summaries, define the rights
of holders of shares of our common stock and preferred stock. Our Articles of
Incorporation and Bylaws have been filed or incorporated by reference as
exhibits to the registration statement of which this prospectus is a part and
may be obtained by following the directions under the heading “Where You Can Find More
Information.”
Common
Stock
We may
issue, either separately or together with other securities, shares of common
stock. Upon our receipt of the full specified purchase price, the
common stock issued will be fully paid and nonassessable. A
prospectus supplement relating to an offering of common stock, or other
securities convertible or exchangeable for, or exercisable into, common stock,
will describe the relevant offering terms, including the number of shares
offered, the initial offering price, and market price and dividend information,
as well as, if applicable, information on other related securities.
General. Except as described
below under “—Anti-takeover
Effects – Restrictions on Voting Rights,” each holder of common stock is
entitled to one vote for each share on all matters to be voted upon by the
common shareholders. There are no cumulative voting rights. Subject to
preferences to which holders of any shares of preferred stock may be entitled,
holders of common stock will be entitled to receive ratably any dividends that
may be declared from time to time by the Board of Directors out of funds legally
available for that purpose. In the event of our liquidation, dissolution or
winding up, holders of common stock will be entitled to share in our assets
remaining after the payment or provision for payment of our debts and other
liabilities, distributions or provisions for distributions in settlement of the
liquidation account established in connection with the conversion of Banner Bank
from the mutual to the stock form of ownership, and the satisfaction of any
liquidation preferences granted to the holders of any shares of preferred stock
that may be outstanding. Holders of common stock have no preemptive or
conversion rights or other subscription rights. There are no
redemption or sinking fund provisions that apply to
the
common stock. All shares of common stock currently outstanding are fully paid
and nonassessable. The rights, preferences and privileges of the holders of
common stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock that we may designate in the
future.
Restrictions on Dividends and
Repurchases Under Agreement with Treasury. The securities
purchase agreement we entered into with the U.S. Department of the Treasury
(“Treasury”) in connection with the sale of the Series A Preferred Stock to
Treasury pursuant to the TARP Capital Purchase Program provides that prior to
the earlier of (i) November 21, 2011 and (ii) the date on which all of the
shares of the Series A Preferred Stock have been redeemed by us or transferred
by Treasury to third parties, we may not, without the consent of Treasury, (a)
increase the cash dividend on our common stock or (b) subject to limited
exceptions, redeem, repurchase or otherwise acquire shares of our common stock
or preferred stock (other than the Series A Preferred Stock) or trust preferred
securities.
Preferred
Stock
General. Our
Articles of Incorporation permits our Board of Directors to authorize the
issuance of up to 500,000 shares of preferred stock, par value $0.01, in one or
more series, without shareholder action. The Board of Directors can fix the
designation, powers, preferences and rights of each series. Therefore, without
shareholder approval (except as may be required under the terms of the Series A
Preferred Stock or by the rules of The NASDAQ Stock Market or any other exchange
or market on which our securities may then be listed or quoted), our Board of
Directors can authorize the issuance of preferred stock with voting, dividend,
liquidation and conversion and other rights that could dilute the voting power
or other rights or adversely affect the market value of the common stock and may
assist management in impeding any unfriendly takeover or attempted change in
control. See “—Anti-Takeover Effects – Authorized
Shares.”
The
preferred stock has the terms described below unless otherwise provided in the
prospectus supplement relating to a particular series of the preferred stock.
You should read the prospectus supplement relating to the particular series of
the preferred stock being offered for specific terms, including:
|
·
|
the
designation and stated value per share of the preferred stock and the
number of shares offered;
|
|
·
|
the
amount of liquidation preference per share, if
any;
|
|
·
|
the
price at which the preferred stock will be
issued;
|
|
·
|
the
dividend rate, or method of calculation, the dates on which dividends will
be payable, whether dividends will be cumulative or noncumulative and, if
cumulative, the dates from which dividends will commence to
accumulate;
|
|
·
|
any
listing of the preferred stock being offered on any securities exchange or
other securities market;
|
|
·
|
any
redemption or sinking fund
provisions;
|
|
·
|
any
conversion provisions;
|
|
·
|
whether
interests in the preferred stock being offered will be represented by
depositary shares; and
|
|
·
|
any
other specific terms of the preferred stock being
offered.
|
Upon our
receipt of the full specified purchase price, the preferred stock will, when
issued, be fully paid and nonassessable. Unless otherwise specified in the
prospectus supplement, each series of the preferred stock will rank equally as
to dividends and liquidation rights in all respects with each other series of
preferred stock. The rights of holders of shares of each series of preferred
stock will be subordinate to those of our general creditors.
Rank. Any series
of the preferred stock will, with respect to the priority of the payment of
dividends and the priority of payments upon liquidation, winding up and
dissolution, rank:
|
·
|
senior
to all classes of common stock and all equity securities issued by us the
terms of which specifically provide that the equity securities will rank
junior to the preferred stock (referred to as the “junior
securities”);
|
|
·
|
junior
to all equity securities issued by us the terms of which specifically
provide that the equity securities will rank senior to the preferred
stock.
|
The terms
of the Series A Preferred Stock provide that we must obtain the approval of the
holders of at least 66 2/3% of the outstanding shares of the Series A Preferred
Stock in order to amend our Articles of Incorporation to authorize or create or
increase the authorized amount of, or any issuance of, any shares of, or any
securities convertible into or exchangeable or exercisable for shares of, any
class or series of stock ranking senior to the Series A Preferred Stock with
respect to the payment of dividends and/or payments upon our liquidation,
dissolution or winding up. See “—Series A Preferred Stock-Voting
Rights.”
Dividends. Holders
of the preferred stock of each series will be entitled to receive, when, as and
if declared by our Board of Directors, cash dividends at such rates and on such
dates described, if any, in the prospectus supplement. Different series of
preferred stock may be entitled to dividends at different rates or based on
different methods of calculation. The dividend rate may be fixed or variable or
both. Dividends will be payable to the holders of record as they appear on our
stock books on record dates fixed by our Board of Directors, as specified in the
applicable prospectus supplement.
Dividends
on any series of the preferred stock may be cumulative or noncumulative, as
described in the applicable prospectus supplement. If our Board of Directors
does not declare a dividend payable on a dividend payment date on any series of
noncumulative preferred stock, then the holders of that noncumulative preferred
stock will have no right to receive a dividend for that dividend payment date,
and we will have no obligation to pay the dividend accrued for that period,
whether or not dividends on that series are declared payable on any future
dividend payment dates. Dividends on any series of cumulative preferred stock
will accrue from the date we initially issue shares of such series or such other
date specified in the applicable prospectus supplement.
No full
dividends may be declared or paid or funds set apart for the payment of any
dividends on any parity securities unless dividends have been paid or set apart
for payment on the preferred stock. If full dividends are not paid, the
preferred stock will share dividends pro rata with the parity securities. No
dividends may be declared or paid or funds set apart for the payment of
dividends on any junior securities unless full cumulative dividends for all
dividend periods terminating on or prior to the date of the declaration or
payment will have been paid or declared and a sum sufficient for the payment set
apart for payment on the preferred stock.
Rights Upon
Liquidation. If we dissolve, liquidate or wind up our affairs,
either voluntarily or involuntarily, the holders of each series of preferred
stock will be entitled to receive, before any payment or distribution of assets
is made to holders of junior securities, liquidating distributions in the amount
described in the prospectus supplement relating to that series of the preferred
stock, plus an amount equal to accrued and unpaid
dividends
and, if the series of the preferred stock is cumulative, for all dividend
periods prior to that point in time. If the amounts payable with respect to the
preferred stock of any series and any other parity securities are not paid in
full, the holders of the preferred stock of that series and of the parity
securities will share proportionately in the distribution of our assets in
proportion to the full liquidation preferences to which they are entitled. After
the holders of preferred stock and the parity securities are paid in full, they
will have no right or claim to any of our remaining assets.
Because
we are a bank holding company, our rights and the rights of our creditors and of
our shareholders, including the holders of any shares of preferred stock then
outstanding, to participate in the assets of any subsidiary upon the
subsidiary’s liquidation or recapitalization will be subject to the prior claims
of the subsidiary’s creditors except to the extent that we may ourselves be a
creditor with recognized claims against the subsidiary.
Redemption. We may
provide that a series of the preferred stock may be redeemable, in whole or in
part, at our option or at the option of the holder of the stock. In
addition, a series of preferred stock may be subject to mandatory redemption
pursuant to a sinking fund or otherwise. The redemption provisions that may
apply to a series of preferred stock, including the redemption dates and the
redemption prices for that series, will be described in the prospectus
supplement.
In the
event of partial redemptions of preferred stock, whether by mandatory or
optional redemption, our Board of Directors will determine the method for
selecting the shares to be redeemed, which may be by lot or pro rata or by any
other method determined to be equitable.
On or
after a redemption date, unless we default in the payment of the redemption
price, dividends will cease to accrue on shares of preferred stock called for
redemption. In addition, all rights of holders of the shares will terminate
except for the right to receive the redemption price.
Unless
otherwise specified in the applicable prospectus supplement for any series of
preferred stock, if any dividends on any other series of preferred stock ranking
equally as to payment of dividends and liquidation rights with such series of
preferred stock are in arrears, no shares of any such series of preferred stock
may be redeemed, whether by mandatory or optional redemption, unless all shares
of preferred stock are redeemed, and we will not purchase any shares of such
series of preferred stock. This requirement, however, will not prevent us from
acquiring such shares pursuant to a purchase or exchange offer made on the same
terms to holders of all such shares outstanding.
Voting
Rights. Unless otherwise described in the applicable
prospectus supplement, holders of the preferred stock will have no voting rights
except as otherwise required by law or in our Articles of
Incorporation.
Under
regulations adopted by the FRB, if the holders of any series of the preferred
stock are or become entitled to vote for the election of directors, such series
may then be deemed a “class of voting securities” and a holder of 10% or more of
such series that is a company may then be subject to regulation as a bank
holding company. In addition, at such time as such series is deemed a class of
voting securities, (a) any holder that is a bank holding company may be
required to obtain the approval of the FRB to acquire or retain more than 5% of
that series and (b) any person may be required to obtain the approval of
the FRB to acquire or retain 10% or more of that series.
Series
A Preferred Stock
This
section summarizes specific terms and provisions of the Series A Preferred
Stock. The description of the Series A Preferred Stock contained in
this section is qualified in its entirety by the actual terms of the Series A
Preferred Stock, as are stated in the articles of amendment to our Articles of
Incorporation, a copy of which is included in Exhibit 3.2 to the registration
statement of which this prospectus is a part and is incorporated by reference
into this prospectus. See “Where You Can Find More
Information.”
General. The
Series A Preferred Stock constitutes a single series of our preferred stock,
consisting of 124,000 shares, par value $0.01 per share, having a liquidation
preference amount of $1,000 per share. The Series A
Preferred
Stock has no maturity date. We issued the shares of Series A
Preferred Stock to Treasury on November 21, 2008 in connection with the TARP
Capital Purchase Program for a purchase price of $124.0 million.
Dividend Rate. Dividends on
the Series A Preferred Stock are payable quarterly in arrears, when, as and if
authorized and declared by our Board of Directors out of legally available
funds, on a cumulative basis on the $1,000 per share liquidation preference
amount plus the amount of accrued and unpaid dividends for any prior dividend
periods, at a rate of (i) 5% per annum, from the original issuance date to but
excluding the first day of the first dividend period commencing after the fifth
anniversary of the original issuance date (i.e., 5% per annum from November 21,
2008 to but excluding February 15, 2014), and (ii) 9% per annum, from and after
the first day of the first dividend period commencing after the fifth
anniversary of the original issuance date (i.e., 9% per annum on and after
February 15, 2014). Dividends are payable quarterly in arrears on
February 15, May 15, August 15 and November 15 of each
year, commencing on February 15, 2009.
Dividends
on the Series A Preferred Stock are cumulative. If for any reason our
Board of Directors does not declare a dividend on the Series A Preferred Stock
for a particular dividend period, or if the Board of Directors declares less
than a full dividend, we will remain obligated to pay the unpaid portion of the
dividend for that period and the unpaid dividend will compound on each
subsequent dividend date (meaning that dividends for future dividend periods
will accrue on any unpaid dividend amounts for prior dividend
periods).
We are
not obligated to pay holders of the Series A Preferred Stock any dividend in
excess of the dividends on the Series A Preferred Stock that are payable as
described above. There is no sinking fund with respect to dividends
on the Series A Preferred Stock.
Priority of
Dividends. So long as the Series A Preferred Stock remains
outstanding, we may not declare or pay a dividend or other distribution on our
common stock or any other shares of Junior Stock (other than dividends payable
solely in common stock) or Parity Stock (other than dividends paid on a pro rata
basis with the Series A Preferred Stock), and we generally may not directly or
indirectly purchase, redeem or otherwise acquire any shares of common stock,
Junior Stock or Parity Stock unless all accrued and unpaid dividends on the
Series A Preferred Stock for all past dividend periods are paid in
full.
“Junior
Stock” means our common stock and any other class or series of our stock the
terms of which expressly provide that it ranks junior to the Series A Preferred
Stock as to dividend rights and/or as to rights on liquidation, dissolution or
winding up of Banner Corporation. We currently have no outstanding
class or series of stock constituting Junior Stock other than our common
stock.
“Parity
Stock” means any class or series of our stock, other than the Series A Preferred
Stock, the terms of which do not expressly provide that such class or series
will rank senior or junior to the Series A Preferred Stock as to dividend rights
and/or as to rights on liquidation, dissolution or winding up of Banner
Corporation, in each case without regard to whether dividends accrue
cumulatively or non-cumulatively. We currently have no outstanding
class or series of stock constituting Parity Stock.
Liquidation
Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of Banner Corporation,
holders of the Series A Preferred Stock will be entitled to receive for each
share of Series A Preferred Stock, out of the assets of Banner Corporation or
proceeds available for distribution to our shareholders, subject to any rights
of our creditors, before any distribution of assets or proceeds is made to or
set aside for the holders of our common stock and any other class or series of
our stock ranking junior to the Series A Preferred Stock, payment of an amount
equal to the sum of (i) the $1,000 liquidation preference amount per share and
(ii) the amount of any accrued and unpaid dividends on the Series A Preferred
Stock (including dividends accrued on any unpaid dividends). To the
extent the assets or proceeds available for distribution to shareholders are not
sufficient to fully pay the liquidation payments owing to the holders of the
Series A Preferred Stock and the holders of any other class or series of our
stock ranking equally with the Series A Preferred Stock, the holders of the
Series A Preferred Stock and such other stock will share ratably in the
distribution.
For
purposes of the liquidation rights of the Series A Preferred Stock, neither a
merger or consolidation of Banner Corporation with another entity nor a sale,
lease or exchange of all or substantially all of Banner Corporation’s assets
will constitute a liquidation, dissolution or winding up of the affairs of
Banner Corporation.
Redemption and
Repurchases Subject to the prior approval of the Federal
Reserve, the Series A Preferred Stock is redeemable at our option in whole or in
part at a redemption price equal to 100% of the liquidation preference amount of
$1,000 per share plus any accrued and unpaid dividends to but excluding the date
of redemption (including dividends accrued on any unpaid dividends), provided
that any declared but unpaid dividend payable on a redemption date that occurs
subsequent to the record date for the dividend will be payable to the holder of
record of the redeemed shares on the dividend record date, and provided further
that the Series A Preferred Stock may be redeemed prior to the first dividend
payment date falling after the third anniversary of the original issuance date
(i.e., prior to February 15, 2012) only if (i) we have, or our successor
following a business combination with another entity which also participated in
the TARP Capital Purchase Program has, raised aggregate gross proceeds in one or
more Qualified Equity Offerings of at least the Minimum Amount and (ii) the
aggregate redemption price of the Series A Preferred Stock does not exceed the
aggregate net proceeds from such Qualified Equity Offerings by us and any
successor. The “Minimum Amount” means $31.0 million plus, in the
event we are succeeded in a business combination by another entity which also
participated in the TARP Capital Purchase Program, 25% of the aggregate
liquidation preference amount of the preferred stock issued by that entity to
Treasury. A “Qualified Equity Offering” is defined as the sale for
cash by Banner Corporation (or its successor) of preferred stock or common stock
that qualifies as Tier 1 capital under applicable regulatory capital
guidelines.
Subsequent
to our issuance of the Series A Preferred Stock, on February 17, 2009, President
Obama signed the American Recovery and Reinvestment Act of 2009 (the “ARRA”)
into law. Among other things, the ARRA provides that subject to consulting with
the appropriate federal banking agency (the Federal Reserve in our case),
Treasury must permit repayment of funds provided under the TARP Capital Purchase
Program without regard to whether the institution which received the funds has
replaced the funds from any other source. Accordingly, the ARRA
effectively permits us to currently cause the redemption of the Series A
Preferred Stock, without regard to whether we have raised additional capital in
a Qualified Equity Offering or otherwise, subject to Treasury's consultation
with the Federal Reserve.
Shares of
Series A Preferred Stock that we redeem, repurchase or otherwise acquire will
revert to authorized but unissued shares of preferred stock, which may then be
reissued by us as any series of preferred stock other than the Series A
Preferred Stock.
No Conversion
Rights. Holders of the Series A Preferred Stock have no right
to exchange or convert their shares into common stock or any other
securities.
Voting Rights. The holders of
the Series A Preferred Stock do not have voting rights other than those
described below, except to the extent specifically required by Washington
law.
Whenever
dividends have not been paid on the Series A Preferred Stock for six or more
quarterly dividend periods, whether or not consecutive, the authorized number of
directors of Banner Corporation will automatically increase by two and the
holders of the Series A Preferred Stock will have the right, with the holders of
shares of any other classes or series of Voting Parity Stock outstanding at the
time, voting together as a class, to elect two directors (the “Preferred
Directors”) to fill such newly created directorships at our next annual meeting
of shareholders (or at a special meeting called for that purpose prior to the
next annual meeting) and at each subsequent annual meeting of shareholders until
all accrued and unpaid dividends for all past dividend periods on all
outstanding shares of Series A Preferred Stock have been paid in full at which
time this right will terminate with respect to the Series A Preferred Stock,
subject to revesting in the event of each and every subsequent default by us in
the payment of dividends on the Series A Preferred Stock.
No person
may be elected as a Preferred Director who would cause us to violate any
corporate governance requirements of any securities exchange or other trading
facility on which our securities may then be listed or traded that listed or
traded companies must have a majority of independent directors. Upon any
termination of the right of the holders of the Series A Preferred Stock and
Voting Parity Stock as a class to vote for directors as described above, the
Preferred Directors will cease to be qualified as directors, the terms of office
of all Preferred Directors then in office will terminate immediately and the
authorized number of directors will be reduced by the number of Preferred
Directors which had been elected by the holders of the Series A Preferred Stock
and the Voting Parity Stock. Any Preferred Director may be removed at any time,
with or without cause, and any vacancy created by such a removal may be filled,
only by the affirmative vote of the holders a majority of the outstanding shares
of Series A
Preferred
Stock voting separately as a class together with the holders of shares of Voting
Parity Stock, to the extent the voting rights of such holders described above
are then exercisable. If the office of any Preferred Director becomes vacant for
any reason other than removal from office, the remaining Preferred Director may
choose a successor who will hold office for the unexpired term of the office in
which the vacancy occurred.
The term
“Voting Parity Stock” means with regard to any matter as to which the holders of
the Series A Preferred Stock are entitled to vote, any series of Parity Stock
(as defined under “—Dividends-Priority of Dividends”) upon which voting rights
similar to those of the Series A Preferred Stock have been conferred and are
exercisable with respect to such matter. We currently have no
outstanding shares of Voting Parity Stock.
In
addition to any other vote or consent required by Washington law or by our
Articles of Incorporation, the vote or consent of the holders of at least 66
2/3% of the outstanding shares of Series A Preferred Stock, voting as a separate
class, is required in order to do the following:
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amend
our Articles of Incorporation or the articles of amendment for the Series
A Preferred Stock to authorize or create or increase the authorized amount
of, or any issuance of, any shares of, or any securities convertible into or
exchangeable or exercisable for shares of, any class or series of stock
ranking senior to the Series A Preferred Stock with respect to the payment
of dividends and/or the distribution of assets on any liquidation,
dissolution or winding up of Banner Corporation;
or
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amend
our Articles of Incorporation or the articles of amendment for the Series
A Preferred Stock in a way that materially and adversely affect the
rights, preferences, privileges or voting powers of the Series A Preferred
Stock; or
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consummate
a binding share exchange or reclassification involving the Series A
Preferred Stock or a merger or consolidation of Banner Corporation with
another entity, unless (i) the shares of Series A Preferred Stock
remain outstanding or, in the case of a merger or consolidation in which
Banner Corporation is not the surviving or resulting entity, are converted
into or exchanged for preference securities of the surviving or resulting
entity or its ultimate parent, and (ii) the shares of Series A
Preferred Stock remaining outstanding or such preference securities, have
such rights, preferences, privileges, voting powers, limitations and
restrictions, taken as a whole, as are not materially less favorable than
the rights, preferences, privileges, voting powers, limitations and
restrictions of the Series A Preferred Stock prior to consummation of the
transaction, taken as a whole;
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provided, however, that
(1) any increase in the amount of our authorized but unissued shares of
preferred stock, and (2) the creation and issuance, or an increase in the
authorized or issued amount, of any other series of preferred stock, or any
securities convertible into or exchangeable or exercisable for any other series
of preferred stock, ranking equally with and/or junior to the Series A Preferred
Stock with respect to the payment of dividends, whether such dividends are
cumulative or non-cumulative and the distribution of assets upon our
liquidation, dissolution or winding up, will not be deemed to materially and
adversely affect the rights, preferences, privileges or voting powers of the
Series A Preferred Stock and will not require the vote or consent of the holders
of the Series A Preferred Stock.
To the
extent holders of the Series A Preferred Stock are entitled to vote, holders of
shares of the Series A Preferred Stock will be entitled to one for each share
then held.
Anti-takeover
Effects
The
provisions of our Articles of Incorporation, our Bylaws, and Washington law
summarized in the following paragraphs may have anti-takeover effects and may
delay, defer, or prevent a tender offer or takeover attempt that a shareholder
might consider to be in such shareholder’s best interest, including those
attempts that might result in a premium over the market price for the shares
held by shareholders, and may make removal of management more
difficult.
Authorized Shares. Our Articles of
Incorporation authorize the issuance of 75,000,000 shares of common stock and
500,000 shares of preferred stock. These shares of common stock and
preferred stock provide our Board of Directors with as much flexibility as
possible to effect, among other transactions, financings, acquisitions, stock
dividends, stock splits and the exercise of employee stock
options. However, these additional authorized shares may also be used
by the Board of Directors consistent with its fiduciary duty to deter future
attempts to gain control of us. The Board of Directors also has sole
authority to determine the terms of any one or more series of preferred stock,
including voting rights, conversion rates, and liquidation
preferences. As a result of the ability to fix voting rights for a
series of preferred stock, the Board has the power to the extent consistent with
its fiduciary duty to issue a series of preferred stock to persons friendly to
management in order to attempt to block a tender offer, merger or other
transaction by which a third party seeks control of us, and thereby assist
members of management to retain their positions.
Restrictions on Voting
Rights. Our Articles of
Incorporation provide for restrictions on voting rights of shares owned in
excess of 10% of any class of our equity security. Specifically, our
Articles of Incorporation provide that if any person or group acting in concert
acquires the beneficial ownership of more than 10% of any class of our equity
security without the prior approval by a two-thirds vote of our “Continuing
Directors,” (as defined therein) then, with respect to each vote in excess of
10% of the voting power of our outstanding shares of voting stock which such
person would otherwise have been entitled to cast, such person shall be entitled
to cast only one-hundredth of one vote per share. Exceptions from
this limitation are provided for, among other things, any proxy granted to one
or more of our “Continuing Directors” and for our employee benefit
plans. Under our Articles of Incorporation, the restriction on voting
shares beneficially owned in violation of the foregoing limitations is imposed
automatically, and the Articles of Incorporation provide that a majority of our
Continuing Directors have the power to construe the forgoing restrictions and to
make all determinations necessary or desirable to implement these
restrictions. These restrictions would, among other things, restrict
voting power of a beneficial owner of more than 10% of our outstanding shares of
common stock in a proxy contest or on other matters on which such person is
entitled to vote.
Board of Directors. Our Board of
Directors is divided into three classes, each of which contains approximately
one-third of the members of the Board. The members of each class are
elected for a term of three years, with the terms of office of all members of
one class expiring each year so that approximately one-third of the total number
of directors is elected each year. The classification of directors,
together with the provisions in our Articles of Incorporation described below
that limit the ability of shareholders to remove directors and that permit only
the remaining directors to fill any vacancies on the Board of Directors, have
the effect of making it more difficult for shareholders to change the
composition of the Board of Directors. As a result, at least two annual meetings
of shareholders will be required for the shareholders to change a majority of
the directors, whether or not a change in the Board of Directors would be
beneficial and whether or not a majority of shareholders believe that such a
change would be desirable.
Our
Articles of Incorporation provides that the size of the Board shall be not less
than five or more than 25 as set in accordance with the Bylaws. In
accordance with the Bylaws, the number of directors is currently set at
15. The Articles of Incorporation provide that any vacancy occurring
in the Board, including a vacancy created by an increase in the number of
directors, shall be filled by a vote of two-thirds of the directors then in
office and any director so chosen shall hold office for a term expiring at the
annual meeting of shareholders at which the term of the class to which the
director has been chosen expires. The classified Board is intended to
provide for continuity of the Board of Directors and to make it more difficult
and time consuming for a shareholder group to fully use its voting power to gain
control of the Board of Directors without the consent of incumbent members of
the Board. The Articles of Incorporation further provide that a
director may be removed from the Board of Directors prior to the expiration of
his term only for cause and only upon the vote of the holders of 80% of the
total votes eligible to be cast thereon. In the absence of this
provision, the vote of the holders of a majority of the shares could remove the
entire Board, but only with cause, and replace it with persons of such holders'
choice.
The
foregoing description of our Board of Directors does not apply with respect to
directors that may be elected by the holders of the Series A Preferred
Stock. The terms of the Series A Preferred Stock provide that the
holders of the Series A Preferred Stock have the right to elect two directors in
the event we do not pay dividends on the Series A Preferred Stock for six or
more dividend periods, whether or not consecutive. This right will
terminate
and the
terms of such directors will end at the time all unpaid dividends on the Series
A Preferred Stock have been paid in full. See “—Series A Preferred Stock-Voting
Rights.”
Cumulative Voting, Special Meetings
and Action by Written Consent. Our Articles of
Incorporation do not provide for cumulative voting for any
purpose. Moreover, the Articles of Incorporation provide that special
meetings of shareholders may be called only by our Board of Directors or a
committee of the Board. In addition, our Bylaws require that any
action taken by written consent must receive the consent of all of the
outstanding voting stock entitled to vote on the action taken.
Shareholder Vote Required to Approve
Business Combinations with Principal Shareholders. The Articles of
Incorporation require the approval of the holders of at least 80% of our
outstanding shares of voting stock to approve certain ”Business Combinations”
(as defined therein) involving a “Related Person” (as defined therein) except in
cases where the proposed transaction has been approved in advance by two-thirds
of those members of Banner Corporation’s Board of Directors who are unaffiliated
with the Related Person and were directors prior to the time when the Related
Person became a Related Person. The term “Related Person” is defined
to include any individual, corporation, partnership or other entity (other than
tax-qualified benefit plans of Banner Corporation) which owns beneficially or
controls, directly or indirectly, 10% or more of the outstanding shares of
common stock of Banner Corporation or an affiliate of such person or
entity. This provision of the Articles of Incorporation applies to
any “Business Combination,” which is defined to include: (i) any
merger or consolidation of Banner Corporation with or into any Related Person;
(ii) any sale, lease, exchange, mortgage, transfer, or other disposition of 25%
or more of the assets of Banner Corporation to a Related Person; (iii) any
merger or consolidation of a Related Person with or into Banner Corporation or a
subsidiary of Banner Corporation; (iv) any sale, lease, exchange, transfer, or
other disposition of certain assets of a Related Person to Banner Corporation or
a subsidiary of Banner Corporation; (v) the issuance of any securities of Banner
Corporation or a subsidiary of Banner Corporation to a Related Person; (vi) the
acquisition by Banner Corporation or a subsidiary of Banner Corporation of any
securities of a Related Person; (vii) any reclassification of common stock of
Banner Corporation or any recapitalization involving the common stock of Banner
Corporation; or (viii) any agreement or other arrangement providing for any of
the foregoing.
Washington
law imposes restrictions on certain transactions between a corporation and
certain significant shareholders. Chapter 23B.19 of the Washington Business
Corporation Act prohibits a “target corporation,” with certain
exceptions, from engaging in certain “significant business transactions” with
an “Acquiring Person” who acquires 10% or more of the voting
securities of a target corporation for a period of five years after such
acquisition, unless the transaction or acquisition of shares is approved by a
majority of the members of the target corporation's board of directors prior to
the date of the acquisition or, at or subsequent to the date of the acquisition,
the transaction is approved by a majority of the members of the target
corporation’s board of directors and authorized at a shareholders’ meeting by
the vote of at least two-thirds of the outstanding voting shares of the target
corporation, excluding shares owned or controlled by the Acquiring
Person. The prohibited transactions include, among others, a merger
or consolidation with, disposition of assets to, or issuance or redemption of
stock to or from, the Acquiring Person, termination of 5% or more of the
employees of the target corporation as a result of the Acquiring Person's
acquisition of 10% or more of the shares, or allowing the Acquiring Person to
receive any disproportionate benefit as a shareholder. After the five-year
period during which significant business transactions are prohibited, certain
significant business transactions may occur if certain “fair price” criteria or
shareholder approval requirements are met. Target corporations
include all publicly-traded corporations incorporated under Washington law, as
well as publicly traded foreign corporations that meet certain
requirements.
Amendment of Articles of
Incorporation and Bylaws. Amendments to our
Articles of Incorporation must be approved by our Board of Directors by a
majority vote of the Board and by our shareholders by a majority of
the voting group comprising all the votes entitled to be cast on the proposed
amendment, and a majority of each other voting group entitled to vote separately
on the proposed amendment; provided, however, that the affirmative vote of the
holders of at least 80% of votes entitled to be cast by each separate voting
group entitled to vote thereon (after giving effect to the provision limiting
voting rights, if applicable) is required to amend or repeal certain provisions
of the Articles of Incorporation, including the provision limiting voting
rights, the provisions relating to the removal of directors, shareholder
nominations and proposals, the approval of certain business combinations,
calling special meetings, director and officer indemnification by us and
amendment of our Bylaws and Articles of Incorporation.
Our
Bylaws may be amended by a majority vote of our Board of Directors, or by a vote
of 80% of the total votes entitled to vote generally in the election of
directors at a duly constituted meeting of shareholders.
Shareholder Nominations and
Proposals. Our Articles of
Incorporation generally require a shareholder who intends to nominate a
candidate for election to the Board of Directors, or to raise new business at a
shareholder meeting to give not less than 30 nor more than 60 days' advance
notice to the Secretary of Banner Corporation. The notice provision
requires a shareholder who desires to raise new business to provide certain
information to us concerning the nature of the new business, the shareholder and
the shareholder's interest in the business matter. Similarly, a
shareholder wishing to nominate any person for election as a director must
provide us with certain information concerning the nominee and the proposing
shareholder.
The
cumulative effect of the restrictions on a potential acquisition of us that are
contained in our Articles of Incorporation and Bylaws, and federal and
Washington law, may be to discourage potential takeover attempts and perpetuate
incumbent management, even though certain shareholders may deem a potential
acquisition to be in their best interests, or deem existing management not to be
acting in their best interests.
Transfer
Agent
The
transfer agent and registrar for our common stock is Computershare.
DESCRIPTION
OF DEPOSITARY SHARES
We may
offer depositary shares, which will be evidenced by depositary receipts,
representing fractional interests in shares of preferred stock of any series. In
connection with the issuance of any depositary shares, we will enter into a
deposit agreement with a bank or trust company, as depositary, which will be
named in the applicable prospectus supplement. The following briefly summarizes
the material provisions of the deposit agreement and of the depositary shares
and depositary receipts, other than pricing and related terms disclosed for a
particular issuance in an accompanying prospectus supplement. This description
is not complete and is subject to, and qualified in its entirety by reference
to, all provisions of the deposit agreement, depositary shares and depositary
receipts. You should read the particular terms of any depositary shares and any
depositary receipts that we offer and any deposit agreement relating to a
particular series of preferred stock described in more detail in a prospectus
supplement. The prospectus supplement will also state whether any of the
generalized provisions summarized below do not apply to the depositary shares or
depositary receipts being offered.
General
We may,
at our option, elect to offer fractional shares of preferred stock, rather than
full shares of preferred stock. In such event, we will issue receipts for
depositary shares, each of which will represent a fraction of a share of a
particular series of preferred stock.
The
shares of any series of preferred stock represented by depositary shares will be
deposited under a deposit agreement between us and a bank or trust company we
select and that has its principal office in the United States and a combined
capital and surplus of at least $50,000,000, as preferred stock depositary. Each
owner of a depositary share will be entitled to all the rights and preferences
of the underlying preferred stock, including any dividend, voting, redemption,
conversion and liquidation rights described in the particular prospectus
supplement, in proportion to the applicable fraction of a share of preferred
stock represented by such depositary share.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of preferred stock in accordance
with the terms of the applicable prospectus supplement.
Dividends
and Other Distributions
The
preferred stock depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited preferred stock to the record
holders of depositary shares relating to the preferred stock in proportion to
the number of depositary shares owned by the holders.
In the
case of a distribution other than in cash, the preferred stock depositary will
distribute any property received by it other than cash to the record holders of
depositary shares entitled to receive it. If the preferred stock depositary
determines that it is not feasible to make such a distribution, it may, with our
approval, sell the property and distribute the net proceeds from the sale to the
holders of the depositary shares.
The
amounts distributed in any such distribution, whether in cash or otherwise, will
be reduced by any amount required to be withheld by us or the preferred stock
depositary on account of taxes.
Withdrawal
of Preferred Stock
When a
holder surrenders depositary receipts at the office of the preferred stock
depositary maintained for that purpose, and pays any necessary taxes, charges or
other fees, the holder will be entitled to receive the number of whole shares of
the related series of preferred stock, and any money or other property, if any,
represented by the holder's depositary shares. Once a holder exchanges
depositary shares for whole shares of preferred stock, that holder generally
cannot “re-deposit” these shares of preferred stock with the preferred stock
depositary, or exchange them for depositary shares. If a holder delivers
depositary receipts that represent a number of depositary shares that exceeds
the number of whole shares of related preferred stock the holder seeks to
withdraw, the depositary will issue a new depositary receipt to the holder that
evidences the excess number of depositary shares.
Redemption,
Conversion and Exchange of Preferred Stock
If a
series of preferred stock represented by depositary shares is to be redeemed,
the depositary shares will be redeemed from the proceeds received by the
preferred stock depositary resulting from the redemption, in whole or in part,
of that series of preferred stock. The depositary shares will be redeemed by the
preferred stock depositary at a price per depositary share equal to the
applicable fraction of the redemption price per share payable in respect of the
shares of preferred stock redeemed.
Whenever
we redeem shares of preferred stock held by the preferred stock depositary, the
preferred stock depositary will redeem as of the same date the number of
depositary shares representing shares of preferred stock redeemed. If fewer than
all the depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by the preferred stock depositary by lot or ratably or
by any other equitable method, in each case as we may determine.
If a
series of preferred stock represented by depositary shares is to be converted or
exchanged, the holder of depositary receipts representing the shares of
preferred stock being converted or exchanged will have the right or obligation
to convert or exchange the depositary shares evidenced by the depositary
receipts.
After the
redemption, conversion or exchange date, the depositary shares called for
redemption, conversion or exchange will no longer be outstanding. When the
depositary shares are no longer outstanding, all rights of the holders will end,
except the right to receive money, securities or other property payable upon
redemption, conversion or exchange.
Voting
Deposited Preferred Stock
Upon
receipt of notice of any meeting at which the holders of any series of deposited
preferred stock are entitled to vote, the preferred stock depositary will mail
the information contained in the notice of meeting to the record holders of the
depositary receipts evidencing the depositary shares relating to that series of
preferred stock. Each record holder of the depositary receipts on the record
date will be entitled to instruct the preferred stock depositary to vote the
amount of the preferred stock represented by the holder's depositary shares. The
preferred
stock
depositary will try, if practical, to vote the amount of such series of
preferred stock represented by such depositary shares in accordance with such
instructions.
We will
agree to take all reasonable actions that the preferred stock depositary
determines are necessary to enable the preferred stock depositary to vote as
instructed. The preferred stock depositary will abstain from voting shares of
any series of preferred stock held by it for which it does not receive specific
instructions from the holders of depositary shares representing those preferred
shares.
Amendment
and Termination of the Deposit Agreement
The form
of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement may at any time be amended by agreement between us and the
preferred stock depositary. However, any amendment that materially and adversely
alters any existing right of the holders of depositary receipts will not be
effective unless the amendment has been approved by the holders of depositary
receipts representing at least a majority of the depositary shares then
outstanding. Every holder of an outstanding depositary receipt at the time any
such amendment becomes effective will be deemed, by continuing to hold the
depositary receipt, to consent and agree to the amendment and to be bound by the
deposit agreement, as amended.
We may
direct the preferred stock depositary to terminate the deposit agreement at any
time by mailing notice of termination to the record holders of the depositary
receipts then outstanding at least 30 days prior to the date fixed for
termination. Upon termination, the preferred stock depositary will deliver to
each holder of depositary receipts, upon surrender of those receipts, such
number of whole shares of the series of preferred stock represented by the
depositary shares together with cash in lieu of any fractional shares, to the
extent we have deposited cash for payment in lieu of fractional shares with the
preferred stock depositary. In addition, the deposit agreement will
automatically terminate if:
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all
of the shares of the preferred stock deposited with the preferred stock
depositary have been withdrawn, redeemed, converted or exchanged;
or
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there
has been a final distribution in respect of the deposited preferred stock
in connection with our liquidation, dissolution or winding
up.
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Charges
of Preferred Stock Depositary; Taxes and Other Governmental Charges
We will
pay all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. We also will pay charges of the
preferred stock depositary in connection with the initial deposit of preferred
stock and any redemption of preferred stock. Holders of depositary receipts will
pay other transfer and other taxes and governmental charges and such other
charges, including a fee for the withdrawal of shares of preferred stock upon
surrender of depositary receipts, as are expressly provided in the deposit
agreement to be for their accounts.
Prospective
purchasers of depositary shares should be aware that special tax, accounting and
other issues may be applicable to instruments such as depositary
shares.
Resignation
and Removal of Depositary
The
preferred stock depositary may resign at any time by delivering to us notice of
its intent to do so, and we may at any time remove the preferred stock
depositary, any such resignation or removal to take effect upon the appointment
of a successor preferred stock depositary and its acceptance of such
appointment. The successor preferred stock depositary must be appointed within
90 days after delivery of the notice of resignation or removal and must be a
bank or trust company, or an affiliate of a bank or trust company, having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
Miscellaneous
The
preferred stock depositary will forward all reports and communications from us
which are delivered to the preferred stock depositary and which we are required
to furnish to the holders of the deposited preferred stock.
Neither
we nor the preferred stock depositary will be liable if we are or the preferred
stock depositary is prevented or delayed by law or any circumstances beyond our
or its control in performing our or its obligations under the deposit agreement.
Our obligations and the obligations of the preferred stock depositary under the
deposit agreement will be limited to performance in good faith of the duties
under the deposit agreement and we and the preferred stock depositary will not
be obligated to prosecute or defend any legal proceeding in respect of any
depositary shares, depositary receipts or shares of preferred stock unless
satisfactory indemnity is furnished. We and the preferred stock depositary may
rely upon written advice of counsel or accountants, or upon information provided
by holders of depositary receipts or other persons believed to be competent and
on documents believed to be genuine.
DESCRIPTION
OF PURCHASE CONTRACTS
We may
issue purchase contracts, including purchase contracts issued as part of a unit
with one or more other securities, for the purchase or sale of:
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our
preferred stock, depositary shares or common
stock;
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securities
of an entity not affiliated with us, a basket of those securities, an
index or indices of those securities or any combination of the
foregoing;
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The price
per share of our common stock, preferred stock or depositary shares, or the
price of the other securities, currencies or commodities that are the subject of
the contract, as applicable, may be fixed at the time the purchase contracts are
issued or may be determined by reference to a specific formula contained in the
purchase contracts. We may issue purchase contracts in such amounts and in as
many distinct series as we wish.
The
applicable prospectus supplement may contain, where applicable, the following
information about the purchase contracts issued under it:
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whether
the purchase contracts obligate the holder to purchase or sell, or both
purchase and sell, our common stock, preferred stock or depositary shares,
or other securities, currencies or commodities, as applicable, and the
nature and amount of each of those securities, or method of determining
those amounts;
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whether
the purchase contracts are to be prepaid or
not;
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whether
the purchase contracts are to be settled by delivery, or by reference or
linkage to the value, performance or level of our common stock or
preferred stock;
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any
acceleration, cancellation, termination or other provisions relating to
the settlement of the purchase
contracts;
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United
States federal income tax considerations relevant to the purchase
contracts; and
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whether
the purchase contracts will be issued in fully registered or global
form.
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The
applicable prospectus supplement will describe the terms of any purchase
contracts. The preceding description and any description of purchase contracts
in the applicable prospectus supplement does not purport to be complete and is
subject to and is qualified in its entirety by reference to the purchase
contract agreement and, if applicable, collateral arrangements and depositary
arrangements relating to such purchase contracts.
DESCRIPTION
OF WARRANTS
We may
issue warrants for the purchase of shares of our common stock or preferred stock
or depositary shares. Warrants may be issued independently or
together with any shares of our common stock or preferred stock or depositary
shares offered by any prospectus supplement and may be attached to or separate
from the shares of common stock or preferred stock or depositary shares. The
warrants will be issued under warrant agreements to be entered into between
Banner Corporation and a bank or trust company, as warrant agent, as is named in
the prospectus supplement relating to the particular issue of warrants. The
warrant agent will act solely as an agent of Banner Corporation 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
following outlines the some of the anticipated general terms and conditions of
the warrants. Further terms of the warrants and the applicable
warrant agreement will be stated in the applicable prospectus supplement. The
following description and any description of the warrants in a prospectus
supplement may not be complete and is subject to and qualified in its entirety
by reference to the terms and provisions of the applicable warrant
agreement.
General
If
warrants are offered, the prospectus supplement will describe the terms of the
warrants, including the following:
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the
number of shares purchasable upon exercise of any common stock warrants
and the price at which such shares of common stock may be purchased upon
such exercise;
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the
designation, number of shares and terms of the preferred stock purchasable
upon exercise of any preferred stock warrants and the price at which such
shares of preferred stock may be purchased upon such
exercise;
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if
applicable, the date on and after which the warrants and the related
common stock or preferred stock will be separately
transferable;
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the
date on which the right to exercise the warrants will commence and the
date on which such right will
expire;
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whether
the warrants will be issued in registered or bearer
form;
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a
discussion of certain 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.
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If in
registered form, warrants may be presented for registration of transfer, and may
be exercised at the corporate trust office of the warrant agent or any other
office indicated in the prospectus supplement. Before the exercise of their
warrants, holders of warrants will not have any of the rights of holders of the
securities purchasable upon such exercise.
Exercise
of Warrants
Each
warrant will entitle the holder to purchase such number of shares of common
stock or preferred stock or depositary shares at such exercise price as shall in
each case be set forth in, or can be calculated according to information
contained in, the prospectus supplement relating to the warrant. Warrants may be
exercised at such times as are set forth in the prospectus supplement relating
to such warrants. After the close of business on the expiration date of the
warrants, or such later date to which such expiration date may be extended by
Banner Corporation, unexercised warrants will become void.
Subject
to any restrictions and additional requirements that may be set forth in the
prospectus supplement, warrants may be exercised by delivery to the warrant
agent of the certificate evidencing such warrants properly completed and duly
executed and of payment as provided in the prospectus supplement of the amount
required to purchase the shares of common stock or preferred stock or
depositary shares 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 such payment and the
certificate representing the warrants to be exercised, properly completed and
duly executed at the corporate trust 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 preferred stock or depositary
shares purchasable upon such exercise. If fewer than all of the warrants
represented by such certificate are exercised, a new certificate will be issued
for the remaining amount of warrants.
Additional
Provisions
The
exercise price payable and the number of shares of common stock or preferred
stock purchasable upon the exercise of each stock warrant will be subject to
adjustment in certain events, including:
|
·
|
the
issuance of the stock dividend to holders of common stock or preferred
stock, respectively;
|
|
·
|
a
combination, subdivision or reclassification of common stock or preferred
stock, respectively; or
|
|
·
|
any
other event described in the applicable prospectus
supplement.
|
In lieu
of adjusting the number of shares of common stock or preferred stock purchasable
upon exercise of each stock warrant, we may elect to adjust the number of stock
warrants. No adjustment in the number of shares purchasable upon exercise of the
stock warrants will be required until cumulative adjustments require an
adjustment of at least 1% thereof. We may, at our option, reduce the exercise
price at any time. No fractional shares will be issued upon exercise of stock
warrants, but we will pay the cash value of any fractional shares otherwise
issuable. Notwithstanding the foregoing, in case of any consolidation, merger,
or sale or conveyance of the property of Banner Corporation as an entirety or
substantially as an entirety, the holder of each outstanding stock warrant will
have the right upon the exercise thereof to the kind and amount of shares of
stock and other securities and property, including cash, receivable by a holder
of the number of shares of common stock or preferred stock into which such stock
warrants were exercisable immediately prior thereto.
DESCRIPTION
OF UNITS
We may
issue units comprised of two or more of the other securities described in this
prospectus in any combination. Each unit will be issued so that the holder of
the unit is also the holder of each security included in the unit. Thus, 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.
The
applicable prospectus supplement may describe:
|
·
|
the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
|
|
·
|
any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the
units;
|
|
·
|
the
terms of the unit agreement governing the
units;
|
|
·
|
any
material United States federal income tax considerations relevant to the
units; and
|
|
·
|
whether
the units will be issued in fully registered or global
form.
|
The
preceding description and any description of units in the applicable prospectus
supplement does not purport to be complete and is subject to and is qualified in
its entirety by reference to the form of unit agreement which will be filed with
the SEC in connection with the offering of such units, and, if applicable,
collateral arrangements and depositary arrangements relating to such
units.
PLAN
OF DISTRIBUTION
We may
sell our securities in any of three ways (or in any combination):
|
·
|
through
underwriters or dealers;
|
|
·
|
directly
to purchasers or to a single
purchaser.
|
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. The
prospectus supplement will set forth the terms of the offering of such
securities, including:
|
·
|
the
name or names of any underwriters, dealers or agents and the type and
amounts of securities underwritten or purchased by each of them;
and
|
|
·
|
the
public offering price of the securities and the proceeds to us and any
discounts, commissions or concessions allowed or reallowed or paid to
dealers.
|
Any
public offering price and any discounts or concessions allowed or reallowed or
paid 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.
Generally, the underwriters’ obligations to purchase the securities will be
subject to certain conditions precedent. The 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.
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.
Pursuant to a requirement by the Financial Industry
Regulatory Authority (“FINRA”), the
maximum commission or discount to be received by any FINRA member or independent
broker-dealer may not be greater than 8% of the gross proceeds received by us
from the sale of any securities registered pursuant to SEC Rule
415.
Agents
and underwriters may be entitled to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act of 1933, as amended,
or to contribution with respect to payments which 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.
We may
enter into derivative transactions with third parties, or sell securities not
covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement so indicates in connection
with those derivatives, then the third parties may sell securities covered by
this prospectus and the applicable prospectus supplement, including in short
sale transactions. In that event, the third party may use securities
pledged by us or borrowed from us or others to settle those sales or to close
out any related open borrowings of stock, and may use securities received from
us in settlement of those derivatives to close out any related open borrowings
of securities. The third party in such sale transactions will be an underwriter
and will be identified in the applicable prospectus supplement (or a
post-effective amendment).
The
validity of the securities offered hereby will be passed upon for us by Breyer
& Associates PC, McLean, Virginia.
The consolidated statements of financial condition of
Banner Corporation as of December 31, 2009 and
2008 , and the related consolidated statements of
operations, comprehensive income (loss) , changes in
stockholders’ equity, and cash flows for each of the three years in the period
ended December 31, 2009 , and the effectiveness
of internal control over financial reporting of Banner Corporation as of
December 31, 2009 , have been audited by Moss
Adams, LLP, independent registered public accounting firm, as stated in its
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the expenses, other than underwriting compensation,
expected to be incurred in connection with the registration and sale of the
securities covered by this Registration Statement.
|
SEC
registration
fee
|
|
$
3,565
|
|
|
Blue
Sky fees and
expenses
|
|
|
10,000 |
|
|
Legal
fees and
expenses
|
|
|
175,000 |
|
|
Accounting
fees and
expenses
|
|
70,000
|
|
|
Printing
and engraving fees and expenses
|
|
|
20,000 |
|
|
Miscellaneous
|
|
|
50,000 |
|
|
Total
|
|
$328,565
|
|
Item
15. Indemnification of Officers and Directors
The
registrant, Banner Corporation (“Banner” or the “Registrant”)), is organized
under the Washington Business Corporation Act (the “WBCA”) which, in general,
empowers Washington corporations to indemnify a person made a party to a
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, other
than an action by or in the right of the corporation, by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee or agent of another enterprise, against expenses,
including attorney's fees, judgments, amounts paid in settlements, penalties and
fines actually and reasonably incurred in connection therewith if the person
acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the corporation or its shareholders and, with respect
to a criminal action or proceeding, if the person had no reasonable cause to
believe his or her conduct was unlawful. Washington corporations may not
indemnify a person in connection with such proceedings if the person was
adjudged to have received an improper personal benefit.
The WBCA
also empowers Washington corporations to provide similar indemnity to such a
person in connection with actions or suits by or in the right of the corporation
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the interests of the corporation or its shareholders,
unless the person was adjudged liable to the corporation.
If
authorized by the articles of incorporation of a Washington corporation or by
its shareholders, a Washington corporation may indemnify and advance expenses to
the persons described above without regard to the limitations described above,
provided that such indemnity will not cover acts or omissions of the person
finally adjudged to be intentional misconduct or a knowing violation of law,
conduct finally adjudged to involve a violation of WBCA Section 310 (related to
certain unlawful distributions), and any transaction with respect to which it
was finally adjudged that the person received a benefit to which such person was
not legally entitled.
The WBCA
also permits a Washington corporation to purchase and maintain on behalf of such
person insurance against liabilities incurred in such capacities. Banner has
obtained a policy of directors' and officers' liability insurance.
The WBCA
further permits Washington corporations to limit the personal liability of
directors for a breach of their fiduciary duty. However, the WBCA does not
eliminate or limit the liability of a director for any of the following: (i)
acts or omissions that involve intentional misconduct by a director or a knowing
violation of law by a director; (ii) conduct violating WBCA Section 310; or
(iii) any transaction from which the director will personally receive a benefit
in money, property or services to which the director is not legally
entitled.
Banner's
Articles of Incorporation and Bylaws
Banner’s
articles of incorporation limit the personal liability of directors for a breach
of their fiduciary duty except for under the circumstances required to excepted
under Washington law described above.
Banner’s
articles of incorporation generally require Banner to indemnify directors,
officers, employees and agents to the fullest extent legally possible under the
WBCA. In addition, the articles of incorporation require Banner to similarly
indemnify any such person who is or was serving at the request of Banner as a
director, officer, partner, trustee, employee or agent of another entity.
Banner's articles of incorporation further provide for the advancement of
expenses under certain circumstances.
Item
16. Exhibits
The
following exhibits are filed with or incorporated by reference into this
registration statement:
|
Exhibit
Number
|
|
Description
of Document
|
|
1.1
|
|
Form
of Underwriting Agreement for any offering of
securities(1)
|
|
3.1
|
|
Amended
and Restated Articles of Incorporation of the
Registrant(2)
|
|
3.2
|
|
Articles
of Amendment to Articles of Incorporation of the
Registrant(3)
|
|
3.3
|
|
Bylaws
of the Registrant(4)
|
|
4.1
|
|
Warrant
to purchase shares of the Registrant’s common stock dated November 21,
2008(5)
|
|
4.2
|
|
Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated November 21, 2008 between the Registrant and the
United States Department of the Treasury(5)
|
|
4.3
|
|
Form
of Articles of Amendment to Articles of Incorporation of the Registrant
for Preferred Stock which may be issued under this Registration
Statement(1)
|
|
4.4
|
|
Form
of Deposit Agreement for Depositary Shares(1)
|
|
4.5
|
|
Form
of Purchase Contract(1)
|
|
4.6
|
|
Form
of Warrant Agreement(1)
|
|
4.7
|
|
Form
of Unit Agreement(1)
|
|
5.1
|
|
Opinion
of Breyer & Associates PC
|
|
12.1
|
|
Computation
of Ratio of Earnings to Fixed Charges and Preferred Stock Dividend
Requirement
|
|
23.1
|
|
Consent
of Moss Adams LLP
|
|
23.2
|
|
Consent
of Breyer & Associates PC (contained in its opinion filed as Exhibit
5.1)
|
|
24.1
|
|
Power
of attorney (contained in the signature page of the registration
statement) *
|
|
________________
* Previously
filed
|
|
|
(1)
|
To
be filed as an exhibit to a document to be incorporated by reference in
this Registration Statement.
|
| |
|
Incorporated
by reference to Exhibit 3 attached to the Registrant’s Quarterly Report on
Form 10-Q for the quarterly period ended September 30,
2009.
|
| |
|
Incorporated
by reference to Exhibit 3.1 attached to the Current Report on Form 8-K
filed by the Registrant on November 24, 2008.
|
| |
|
Incorporated
by reference to Exhibit 3.2 attached to the Current Report on Form 8-K
filed by the Registrant on December 18, 2007.
|
| |
|
Incorporated
by reference to Exhibit 4.2 attached to the Current Report on Form 8-K
filed by the Registrant on November 24, 2008.
|
| |
|
Incorporated
by reference to Exhibit 10.1 attached to the Current Report on Form 8-K
filed by the Registrant on November 24,
2008.
|
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;
(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 a 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 (1)(i), (1)(ii) and (1)(iii) of this section 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 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, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the 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 the 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 an
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 an 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.
(6) 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 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.
(7)
That:
(i) For
purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(ii) For
the purposes of determining of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time 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 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 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 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 Walla
Walla, State of Washington, on the 19th day of March,
2010 .
| |
BANNER
CORPORATION |
| |
|
| |
|
| |
|
| |
By:
/s/D. Michael
Jones
|
| |
D.
Michael Jones |
| |
President and Chief Executive Officer
(Duly Authorized
Representative)
|
POWER
OF ATTORNEY
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
| /s/D.
Michael Jones |
|
/s/Lloyd
W. Baker * |
|
D.
Michael Jones
|
|
Lloyd
W. Baker
|
|
President,
Chief Executive Officer; Director
(Principal
Executive Officer)
|
|
Executive
Vice President & Chief Financial Officer
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
|
|
|
|
Date: March 19, 2010
|
|
Date: March 19, 2010
|
|
|
|
|
| /s/ Robert
D. Adams * |
|
/s/Gordon
E. Budke * |
|
Robert
D. Adams
|
|
Gordon
E. Budke
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: March 19, 2010
|
|
Date: March 19, 2010
|
|
|
|
|
| /s/David
B. Casper * |
|
/s/Edward
L. Epstein * |
|
David
B. Casper
|
|
Edward
L. Epstein
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: March 19, 2010
|
|
Date: March 19, 2010
|
| |
|
|
| /s/Jesse
G. Foster * |
|
/s/David
A. Klaue * |
|
Jesse
G. Foster
|
|
David
A. Klaue
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: March 19, 2010
|
|
Date: March 19,
2010
|
|
|
|
|
| /s/Constance
H. Kravas * |
|
/s/Robert
J. Lane * |
|
Constance
H. Kravas
|
|
Robert
J. Lane
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: March 19, 2010
|
|
Date: March 19,
2010
|
|
|
|
|
| /s/John
R. Layman * |
|
/s/Dean
W. Mitchell * |
|
John
R. Layman
|
|
Dean
W. Mitchell
|
|
Director
|
|
Director
|
|
|
|
|
|
Date:
March 19, 2010
|
|
Date: March 19, 2010
|
|
|
|
|
| /s/Brent
A. Orrico * |
|
/s/Wilber
E. Pribilsky * |
|
Brent
A. Orrico
|
|
Wilber
E. Pribilsky
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: March 19, 2010
|
|
Date: March 19, 2010
|
|
|
|
|
| /s/Gary
Sirmon * |
|
/s/Michael
M. Smith * |
|
Gary
Sirmon
|
|
Michael
M. Smith
|
|
Director
|
|
Director
|
|
|
|
|
|
Date: March 19, 2010
|
|
Date: March 19, 2010
|
|
|
|
|
* By power of
attorney dated January 8, 2010
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
of Document
|
|
1.1
|
|
Form
of Underwriting Agreement for any offering of
securities(1)
|
|
3.1
|
|
Amended
and Restated Articles of Incorporation of the
Registrant(2)
|
|
3.2
|
|
Articles
of Amendment to Articles of Incorporation of the
Registrant(3)
|
|
3.3
|
|
Bylaws
of the Registrant(4)
|
|
4.1
|
|
Warrant
to purchase shares of the Registrant’s common stock dated November 21,
2008(5)
|
|
4.2
|
|
Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated November 21, 2008 between the Registrant and the
United States Department of the Treasury(5)
|
|
4.3
|
|
Form
of Articles of Amendment to Articles of Incorporation of the Registrant
for Preferred Stock which may be issued under this Registration
Statement(1)
|
|
4.4
|
|
Form
of Deposit Agreement for Depositary Shares(1)
|
|
4.5
|
|
Form
of Purchase Contract(1)
|
|
4.6
|
|
Form
of Warrant Agreement(1)
|
|
4.7
|
|
Form
of Unit Agreement(1)
|
|
5.1
|
|
Opinion
of Breyer & Associates PC
|
|
12.1
|
|
Computation
of Ratio of Earnings to Fixed Charges and Preferred Stock Dividend
Requirement
|
|
23.1
|
|
Consent
of Moss Adams LLP
|
|
23.2
|
|
Consent
of Breyer & Associates PC (contained in its opinion filed as Exhibit
5.1)
|
|
24.1
|
|
Power
of attorney (contained in the signature page of the registration
statement) *
|
|
________________
* Previously
filed
|
|
|
(1)
|
To
be filed as an exhibit to a document to be incorporated by reference in
this Registration Statement.
|
| |
|
Incorporated
by reference to Exhibit 3 attached to the Registrant’s Quarterly Report on
Form 10-Q for the quarterly period ended September 30,
2009.
|
| |
|
Incorporated
by reference to Exhibit 3.1 attached to the Current Report on Form 8-K
filed by the Registrant on November 24, 2008.
|
| |
|
Incorporated
by reference to Exhibit 3.2 attached to the Current Report on Form 8-K
filed by the Registrant on December 18,
2007.
|
|
|
|
Incorporated
by reference to Exhibit 4.2 attached to the Current Report on Form 8-K
filed by the Registrant on November 24,
2008.
|
|
|
|
Incorporated
by reference to Exhibit 10.1 attached to the Current Report on Form 8-K
filed by the Registrant on November 24,
2008.
|