<PAGE>
As filed with the Securities and Exchange Commission on November 27, 1996
Registration No. 333-___________
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
MID-PENINSULA BANCORP
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 77-0387041
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
420 COWPER STREET, PALO ALTO, CALIFORNIA 94301
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE)
----------------------------------------------
GREATER BAY BANCORP 1996 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
----------------------------------------------
DAVID L. KALKBRENNER, CHIEF EXECUTIVE OFFICER
MID-PENINSULA BANCORP
420 COWPER STREET, PALO ALTO, CALIFORNIA 94301
(NAME AND ADDRESS OF AGENT FOR SERVICE)
-------------
(415) 323-5150
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE OF PROCESS)
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Aggregate Amount of
to be Registered be Registered Price per Share Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 751,002 $ 20.75 $ 15,583,291.50 $ 4,722.21
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
1 Issuable upon exercise of options to be granted under the Greater Bay
Bancorp 1996 Stock Option Plan.
2 Estimated solely for the purpose of determining the registration fee,
based upon the average of the bid and asked prices for the Common Stock on
November , 1996, pursuant to Rule 457(h).
This registration statement, including exhibits, consists of 21 sequentially
numbered pages. The Exhibit Index is located at page 7.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required to be included in the Section 10(a) prospectus
is not required to be included herein.
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed by the Company with the
Commission are incorporated in this registration statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) The Company's Current Reports on Form 8-K filed June 3, July 12,
August 21, September 12 and November 12, 1996, pursuant to Section 13(a) of
the Exchange Act.
(2) The Company's Quarterly Reports on Form 10-Q for the quarter
ended March 31, June 30 and September 30, 1996, filed pursuant to Section
13(a) of the Exchange Act.
(c) The description of the Company's common stock set forth under the
heading "Description of Mid-Peninsula Capital Stock" in the prospectus
contained in Amendment No. 1 to the Company's Registration Statement No.
333-10781 on Form S-4 filed with the Commission on September 19, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold, or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement, and to be a part hereof from the
date of such filing.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The California General Corporation Law provides for the indemnification
of officers and directors who are made or are threatened to be made a party
to any legal proceeding by reason of their service to the Company. The
Articles of Incorporation and Bylaws of the Company, as amended effective
November 27, 1996,
2
<PAGE>
permit indemnification of directors and officers to the maximum extent
permitted by California law. The Company has in effect director and officer
liability insurance policies indemnifying the Company and the officers,
directors and certain assistant officers of the Company and officers and
directors of the Company's subsidiaries within specific limits for certain
liabilities incurred by reason of their being or having been directors or
officers. The Company pays the entire premium for these policies. In
addition, the Company, as approved by the shareholders of the Company
effective November 27, 1996, will enter into indemnification agreements with
all directors and officers to provide indemnification to the maximum extent
permitted by the Company's Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See Index to Exhibits.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 6, 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 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 of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
4
<PAGE>
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-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Palo Alto, State of California, on
November 20, 1996.
MID-PENINSULA BANCORP
By /s/ David L. Kalkbrenner
------------------------
David L. Kalkbrenner
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David L. Kalkbrenner and Carol R. Rowland, and
each or any one of them, his true and lawful attorney-in-fact and agent,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to
do and perform all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
SIGNATURES TITLE DATE
- ---------- ----- ----
/s/ David L. Kalkbrenner
- ---------------------------- President, Chief Executive November 20, 1996
David L. Kalkbrenner Officer and Director
/s/ Murray B. Dey
- ---------------------------- Executive Vice President November 20, 1996
Murray B. Dey and Director
/s/ Lawrence A. Aufmuth
- ---------------------------- Director November 20, 1996
Lawrence A. Aufmuth
/ /
- ---------------------------- Director
John F. Blokker
/s/ Allan F. Brown
- ---------------------------- Director November 20, 1996
Allan F. Brown
5
<PAGE>
/s/ Owen D. Conley
- ---------------------------- Director November 20, 1996
Owen D. Conley
/ /
- ---------------------------- Director
Donald L. Hammond
/s/ R. Hewlett Lee, M.D.
- ---------------------------- Director November 20, 1996
R. Hewlett Lee, M.D.
/s/ Helen C. Leong
- ---------------------------- Director November 20, 1996
Helen C. Leong
/s/ George M. Marcus
- ---------------------------- Director November 20, 1996
George M. Marcus
/s/ Duncan L. Matteson
- ---------------------------- Chairman of the Board and November 20, 1996
Duncan L. Matteson Director
/ /
- ---------------------------- Director
Donald H. Seiler
/s/ Warren R. Thoits
- ---------------------------- Director November 20, 1996
Warren R. Thoits
/s/ Bruce E. Van Alstyne
- ---------------------------- Director November 20, 1996
Bruce E. Van Alstyne
/s/ Edwin E. Van Bronkhorst
- ---------------------------- Director November 20, 1996
Edwin E. Van Bronkhorst
6
<PAGE>
INDEX OF EXHIBITS
Exhibit Sequential
No. Exhibit Name Page No.
--- ------------ ----------
5 Opinion of Counsel: 8
Bronson, Bronson & McKinnon LLP
23.1 Consent of Independent Auditors: 9
KPMG Peat Marwick LLP
23.2 Consent of Independent Auditors: 10
Coopers & Lybrand LLP
23.3 Consent of Counsel (See Exhibit 5)
24 Power of Attorney (see signature pages)
99 Greater Bay Bancorp 1996 Stock Option Plan 11-21
7
<PAGE>
Exhibit 5
November 27, 1996
Board of Directors
Mid-Peninsula Bancorp
420 Cowper Street
Palo Alto, CA 94301
Re: Greater Bay Bancorp 1996 Stock Option Plan
Gentlemen:
We refer to the Registration Statement on Form S-8 to be filed by Mid-
Peninsula Bancorp (the "Company") with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, relating to shares of the
Company's Common Stock, no par value, issuable under the Greater Bay Bancorp
1996 Stock Option Plan, effective with the merger of Cupertino National Bancorp
with and into the Company and the change of the name of the Company to Greater
Bay Bancorp. As counsel to the Company, we have examined such questions of law
and such corporate records and other documents as we have considered necessary
or appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion these shares have been duly and
validly authorized and, when issued and sold in the manner contemplated by the
Registration Statement, will be validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
BRONSON, BRONSON & McKINNON LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Mid-Peninsula Bancorp:
We consent to incorporation herein by reference in the registration statement on
Form S-8 of Mid-Peninsula Bancorp (the Company) of our report dated
January 22, 1996, relating to the consolidated balance sheets of
Mid-Peninsula Bancorp and subsidiary as of December 31, 1995, and 1994, and
the related consolidated statements of operations, changes in shareholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1995, which report appears in the December 31, 1995, annual
report on Form 10-K of Mid-Peninsula Bancorp. On October 7, 1994, the
Company acquired San Mateo County Bancorp on a pooling-of-interests basis.
We did not audit the consolidated financial statements of San Mateo County
Bancorp as of and for the year ended December 31, 1993. Those statements,
which are included in the 1993 restated consolidated financial statements,
were audited by other auditors, whose report contained an explanatory
paragraph regarding the adoption of Statement of Financial Accounting
Standards (SFAS) No. 109, Accounting for Income Taxes and SFAS No. 115,
Accounting for Certain Investments in Debt and Equity Securities. Our
report, insofar as it relates to the amounts included for San Mateo County
Bancorp, is based solely on the report of the other auditors.
KPMG Peat Marwick LLP
San Francisco, California
November 25, 1996
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-8 of Mid-Peninsula Bancorp and Subsidiary of our report dated January
28, 1994, on our audit of the consolidated financial statements of San Mateo
County Bancorp as of and for the year ended December 31, 1993, which report
is incorporated by reference in the December 31, 1995 Annual Report on
Form 10-K of Mid-Peninsula Bancorp and Subsidiary.
Coopers & Lybrand LLP
San Francisco, California
November 25, 1996
<PAGE>
EXHIBIT 99
GREATER BAY BANCORP 1996 STOCK OPTION PLAN
<PAGE>
TABLE OF CONTENTS
PAGE
1. PURPOSE...................................................................1
2. DEFINITIONS...............................................................1
(a) Board of Directors...................................................1
(b) Change in Control....................................................1
(c) Code.................................................................1
(d) Committee............................................................1
(e) Company..............................................................1
(f) Employee.............................................................1
(g) Exchange Act.........................................................2
(h) Exercise Price.......................................................2
(i) Fair Market Value....................................................2
(j) ISO..................................................................2
(k) Nonstatutory Option..................................................2
(l) Option...............................................................3
(m) Optionee.............................................................3
(n) Plan.................................................................3
(o) Service..............................................................3
(p) Share................................................................3
(q) Stock................................................................3
(r) Stock Option Agreement...............................................3
(s) Subsidiary...........................................................3
(t) Substitute Option....................................................3
(u) Total and Permanent Disability.......................................3
3. ADMINISTRATION............................................................3
(a) Committee Membership.................................................3
(b) Committee Procedures.................................................4
(c) Committee Responsibilities...........................................4
4. ELIGIBILITY...............................................................4
(a) General Rules........................................................5
(b) Ten-Percent Stockholders.............................................5
(c) Attribution Rules....................................................5
(d) Outstanding Stock....................................................5
5. STOCK SUBJECT TO PLAN.....................................................5
(a) Basic Limitation.....................................................5
(b) Additional Shares....................................................5
ii
<PAGE>
6. TERMS AND CONDITIONS OF OPTIONS...........................................6
(a) Stock Option Agreement...............................................6
(b) Number of Shares.....................................................6
(c) Exercise Price.......................................................6
(d) Withholding Taxes....................................................6
(e) Exercisability.......................................................6
(f) Term.................................................................6
(g) Transferability......................................................7
(h) No Rights as a Stockholder...........................................7
(i) Modification, Extension and Renewal of Options.......................7
(j) Substitute Options...................................................7
7. PAYMENT FOR SHARES........................................................8
(a) General Rule.........................................................8
(b) Surrender of Stock...................................................8
(c) Exercise/Sale........................................................8
(d) Exercise/Pledge......................................................8
8. ADJUSTMENT OF SHARES......................................................9
(a) General..............................................................9
(b) Reorganizations......................................................9
(c) Reservation of Rights................................................9
9. SECURITIES LAWS...........................................................9
10. NO RETENTION RIGHTS......................................................9
11. DURATION AND AMENDMENTS..................................................9
(a) Term of the Plan.....................................................9
(b) Right to Amend or Terminate the Plan.................................9
(c) Effect of Amendment or Termination..................................10
iii
<PAGE>
GREATER BAY BANCORP 1996 STOCK OPTION PLAN
1. PURPOSE.
The purpose of the Plan is to offer selected employees, directors and
consultants an opportunity to acquire a proprietary interest in the success of
the Company, or to increase such interest, by purchasing Shares of the Company's
Common Stock. The Plan provides both for the grant of Nonstatutory Options as
well as ISOs intended to qualify under section 422 of the Code.
2. DEFINITIONS.
(a) "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company, as constituted from time to time.
(b) "CHANGE IN CONTROL" shall mean the occurrence of either of the
following events:
(i) A change in the composition of the Board of Directors, as a
result of which fewer than one-half of the incumbent directors are
directors who either:
(A) Had been directors of the Company (including prior
service as a director of either Mid-Peninsula Bancorp or Cupertino
National Bancorp) 24 months prior to such change; or
(B) Were elected, or nominated for election, to the
Board of Directors with the affirmative votes of at least a
majority of the directors who had been directors of the Company at
the Effective Time of the Merger of Mid-Peninsula Bancorp and
Cupertino National Bancorp or 24 months prior to such change
(whichever is later) and who were still in office at the time of
the election or nomination; or
(ii) Any "person" (as such term is used in sections 13(d) and
14(d) of the Exchange Act) by the acquisition or aggregation of
securities is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 50 percent or more of the combined
voting power of the Company's then outstanding securities. For purposes
of this Paragraph (ii), the term "person" shall not include an employee
benefit plan maintained by the Company.
(c) "CODE" shall mean the Internal Revenue Code of 1986, as amended.
(d) "COMMITTEE" shall mean a committee of the Board of Directors, as
described in Section 3(a), or in the absence of such a committee, the Board of
Directors.
(e) "COMPANY" shall mean Greater Bay Bancorp, a California
corporation, formerly known as Mid-Peninsula Bancorp, a California corporation.
(f) "EMPLOYEE" shall mean:
(i) Any individual who is a common-law employee of the Company
or of a Subsidiary;
1
<PAGE>
(ii) A member of the Board of Directors; and
(iii) An independent contractor who performs services for the
Company or a Subsidiary and who is not a member of the Board of
Directors.
Service as an independent contractor or member of the Board of Directors shall
be considered employment for all purposes of the Plan, except as provided in
Section 4(a).
(g) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "EXERCISE PRICE" shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee in the
applicable Stock Option Agreement.
(i) "FAIR MARKET VALUE" shall mean the market price of Stock,
determined by the Committee as follows:
(i) If Stock was traded over-the-counter on the date in
question but was not traded on the Nasdaq system or the Nasdaq National
Market System, then the Fair Market Value shall be equal to the mean
between the last reported representative bid and asked prices quoted for
such date by the principal automated inter-dealer quotation system on
which Stock is quoted or, if Stock is not quoted on any such system, by
the "Pink Sheets" published by the National Quotation Bureau, Inc.;
(ii) If Stock was traded over-the-counter on the date in
question and was traded on the Nasdaq system or the Nasdaq National
Market System, then the Fair Market Value shall be equal to the
last-transaction price quoted for such date by the Nasdaq system or the
Nasdaq National Market System;
(iii) If Stock was traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing price
reported by the applicable composite-transactions report for such date;
and
(iv) If none of the foregoing provisions is applicable, then the
Fair Market Value shall be determined by the Committee in good faith on
such basis as it deems appropriate.
In all cases, the determination of Fair Market Value by the Committee shall be
conclusive and binding on all persons.
(j) "ISO" shall mean an employee incentive stock option described in
Section 422(b) of the Code.
(k) "NONSTATUTORY OPTION" shall mean a stock option not described in
Sections 422(b) or 423(b) of the Code.
(l) "OPTION" shall mean an ISO or Nonstatutory Option granted under
the Plan and entitling the holder to purchase Shares.
(m) "OPTIONEE" shall mean an individual who holds an Option.
2
<PAGE>
(n) "PLAN" shall mean this Greater Bay Bancorp 1996 Stock Option Plan,
as it may be amended from time to time.
(o) "SERVICE" shall mean service as an Employee.
(p) "SHARE" shall mean one share of Stock, as adjusted in accordance
with Section 8 (if applicable).
(q) "STOCK" shall mean the Common Stock of the Company.
(r) "STOCK OPTION AGREEMENT" shall mean the agreement between the
Company and an Optionee which contains the terms, conditions and restrictions
pertaining to his or her Option.
(s) "SUBSIDIARY" shall mean any corporation, if the Company and/or one
or more other Subsidiaries own not less than 50 percent of the total combined
voting power of all classes of outstanding stock of such corporation. A
corporation that attains the status of a Subsidiary on a date after the adoption
of the Plan shall be considered a Subsidiary commencing as of such date.
(t) "SUBSTITUTE OPTION" shall mean an option described in Section
6(j).
(u) "TOTAL AND PERMANENT DISABILITY" shall mean that the Optionee is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted, or can be expected to last, for a continuous period
of not less than one year.
3. ADMINISTRATION.
(a) COMMITTEE MEMBERSHIP. The Board of Directors shall have the
authority to administer the Plan but may delegate its administrative powers
under the Plan, in whole or in part, to one or more committees of the Board of
Directors. With respect to the participation of Employees who are subject to
Section 16 of the Exchange Act, the Plan may be administered by a committee
composed solely of two or more members of the Board of Directors who qualify as
"nonemployee directors" as defined in Securities and Exchange Commission Rule
16b-3 under the Exchange Act. With respect to the participation of Employees
who may be considered "covered employees" under Section 162(m) of the Code, the
Plan may be administered by a committee composed solely of two or more members
of the Board of Directors who qualify as "outside directors" as defined by the
Internal Revenue Service for plans intended to qualify for an exemption under
Section 162(m)(4)(C) of the Code. If the committee members meet both such
qualifications, then one committee may administer the Plan both with respect to
Employees who are subject to Section 16 of the Exchange Act or who are
considered to be "covered employees" under Section 162(m) of the Code.
The Board of Directors may appoint a separate committee, consisting of
one or more members of the Board of Directors who do not meet such
qualifications. Such committee may administer the Plan with respect to
Employees who are not officers of the Company or members of the Board of
Directors, may grant Options under the Plan to such Employees and may determine
the timing, number of Shares and other terms of such grants.
(b) COMMITTEE PROCEDURES. The Board of Directors shall designate one
of the members of any Committee appointed under paragraph (a) as chairman. Any
such Committee may hold meetings at such times and places as it shall determine.
The acts of a majority of the Committee members present
3
<PAGE>
at meetings at which a quorum exists, or acts reduced to or approved in writing
by all Committee members, shall be valid acts of the Committee.
(c) COMMITTEE RESPONSIBILITIES. Subject to the provisions of the
Plan, any such Committee shall have full authority and discretion to take the
following actions:
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms
relating to the Plan;
(iii) To authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of the Plan;
(iv) To determine when Options are to be granted under the Plan;
(v) To select the Optionees;
(vi) To determine the number of Shares to be made subject to
each Option;
(vii) To prescribe the terms and conditions of each Option,
including (without limitation) the Exercise Price, to determine whether
such Option is to be classified as an ISO or as a Nonstatutory Option,
and to specify the provisions of the Stock Option Agreement relating to
such Option;
(viii) To amend any outstanding Stock Option Agreement, subject to
applicable legal restrictions and to the consent of the Optionee who
entered into such agreement;
(ix) To prescribe the consideration for the grant of each Option
under the Plan and to determine the sufficiency of such consideration;
and
(x) To take any other actions deemed necessary or advisable for
the administration of the Plan.
All decisions, interpretations and other actions of the Committee shall be final
and binding on all Optionees, and all persons deriving their rights from an
Optionee. No member of the Committee shall be liable for any action that he or
she has taken or has failed to take in good faith with respect to the Plan or
any Option.
4. ELIGIBILITY.
(a) GENERAL RULES. Only Employees shall be eligible for designation
as Optionees by the Committee. In addition, only Employees who are common-law
employees of the Company or a Subsidiary shall be eligible for the grant of
ISOs.
(b) TEN-PERCENT STOCKHOLDERS. An Employee who owns more than 10
percent of the total combined voting power of all classes of outstanding stock
of the Company or any of its Subsidiaries shall not be eligible for the grant of
an ISO unless:
(i) The Exercise Price is at least 110 percent of the Fair
Market Value of a Share on the date of grant; and
4
<PAGE>
(ii) Such ISO by its terms is not exercisable after the
expiration of five years from the date of grant.
(c) ATTRIBUTION RULES. For purposes of Subsection (b) above, in
determining stock ownership, an Employee shall be deemed to own the stock owned,
directly or indirectly, by or for such Employee's brothers, sisters, spouse,
ancestors and lineal descendants. Stock owned, directly or indirectly, by or
for a corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its stockholders, partners or beneficiaries. Stock
with respect to which such Employee holds an option shall not be counted.
(d) OUTSTANDING STOCK. For purposes of Subsection (b) above,
"outstanding stock" shall include all stock actually issued and outstanding
immediately after the grant. "Outstanding stock" shall not include shares
authorized for issuance under outstanding options held by the Employee or by any
other person.
5. STOCK SUBJECT TO PLAN.
(a) BASIC LIMITATION. Shares offered under the Plan shall be
authorized but unissued Shares. The aggregate number of Shares which is
issued under the Plan upon exercise of Options shall not exceed 967,890
Shares less the number of Shares required for issuance pursuant to exercise
of options outstanding under the Company's 1994 Mid-Peninsula Bancorp Stock
Option Plan (the "Prior Plan") as of the effective date of the merger of
Cupertino National Bancorp with and into Mid-Peninsula Bancorp by which
Mid-Peninsula Bancorp will also change its name to Greater Bay Bancorp (the
"Effective Date"). (No additional grants shall be made under the Prior Plan
after the Effective Date, although the Prior Plan will continue to govern
outstanding options previously granted under the Prior Plan.) Nothwithstanding
the foregoing sentence, the aggregate number of Shares which may be issued
pursuant to the exercise of ISOs granted under the Plan shall not exceed
519,896. The number of Shares which are subject to Options outstanding at
any time under the Plan shall not exceed the number of Shares which then
remain available for issuance under the Plan. The Company, during the term
of the Plan, shall at all times reserve and keep available sufficient Shares
to satisfy the requirements of the Plan.
(b) ADDITIONAL SHARES. In the event that any outstanding option
granted under this Plan, including Substitute Options, or the Prior Plan, for
any reason expires or is cancelled or otherwise terminated, the Shares allocable
to the unexercised portion of such option shall become available for the
purposes of this Plan.
6. TERMS AND CONDITIONS OF OPTIONS.
(a) STOCK OPTION AGREEMENT. Each grant of an Option under the Plan
shall be evidenced by a Stock Option Agreement executed by the Optionee and the
Company. Such Option shall be subject to all applicable terms and conditions of
the Plan and may be subject to any other terms and conditions which are not
inconsistent with the Plan and which the Committee deems appropriate for
inclusion in a Stock Option Agreement. The provisions of the various Stock
Option Agreements entered into under the Plan need not be identical.
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(b) NUMBER OF SHARES. Each Stock Option Agreement shall specify the
number of Shares that are subject to the Option and shall provide for the
adjustment of such number in accordance with Section 8. Options granted to
any Optionee in a single calendar year shall in no event cover more than
30,000 Shares, subject to adjustment in accordance with Section 8. The Stock
Option Agreement shall also specify whether the Option is an ISO or a
Nonstatutory Option.
(c) EXERCISE PRICE. Each Stock Option Agreement shall specify the
Exercise Price. The Exercise Price of an Option shall not be less than 100
percent of the Fair Market Value of a Share on the date of grant, except as
otherwise provided in Section 4(b) with respect to ISO's and Section 6(i) with
respect to Substitute Options. The Exercise Price shall be payable in a form
described in Section 7.
(d) WITHHOLDING TAXES. As a condition to the exercise of an Option,
the Optionee shall make such arrangements as the Committee may require for the
satisfaction of any federal, state, local or foreign withholding tax obligations
that arise in connection with such exercise. The Optionee shall also make such
arrangements as the Committee may require for the satisfaction of any federal,
state, local or foreign withholding tax obligations that may arise in connection
with the disposition of Shares acquired by exercising an Option. The Committee
may permit the Optionee to satisfy all or part of his or her tax obligations
related to the Option by having the Company withhold a portion of any Shares
that otherwise would be issued to him or her or by surrendering any Shares that
previously were acquired by him or her. Such Shares shall be valued at their
Fair Market Value on the date when taxes otherwise would be withheld in cash.
The payment of taxes by assigning Shares to the Company, if permitted by the
Committee, shall be subject to such restrictions as the Committee may impose.
(e) EXERCISABILITY. Each Stock Option Agreement shall specify the
date when all or any installment of the Option is to become exercisable. The
vesting of any Option shall be determined by the Committee at its sole
discretion; provided however, that:
(i) Each Stock Option Agreement shall provide for immediate
exercisability of the entire Option in the event of a Change in Control.
(ii) In the In the event that an Optionee's Service terminates,
the Option shall be exercisable only to the extent the Option was vested
as of the date of such termination, unless otherwise specified in the
Optionee's Stock Option Agreement.
(f) TERM. Each Stock Option Agreement shall specify the term of the
Option. The term of an ISO shall not exceed 10 years from the date of grant,
except as otherwise provided in Section 4(b). Subject to the preceding
sentence, the Committee at its sole discretion shall determine when an Option is
to expire. In the event that the Optionee's Service terminates:
(i) As a result of such Optionee's death or Total and Permanent
Disability, the term of the Option shall expire twelve months (or such
other period specified in the Optionee's Stock Option Agreement) after
such death or Total and Permanent Disability but not later than the
original expiration date specified in the Stock Option Agreement.
(ii) As a result of termination by the Company for cause, the
term of the Option shall expire thirty days after the Company's notice or
advice of such termination is dispatched to Employee, but not later than
the original expiration date specified in the Stock Option Agreement.
For purposes of this Paragraph (ii), "cause" shall mean an act of
embezzlement, fraud, dishonesty, breach of fiduciary duty to the Company,
or the deliberate disregard of rules of the Company which results in
loss, damage or injury to the Company, the unauthorized
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disclosure of any of the secrets or confidential information of the
Company, the inducement of any client or customer of the Company to break
any contract with the Company, or the inducement of any principal for
whom the Company acts as agent to terminate such agency relationship, the
engagement of any conduct which constitutes unfair competition with the
Company, the removal of Optionee from office by any court or bank
regulatory agency, or such other similar acts which the Committee in its
discretion determine to constitute good cause for termination of
Optionee's Service. As used in this Paragraph (ii), Company includes
Subsidiaries of the Company.
(iii) As a result of termination for any reason other than Total
and Permanent Disability, death or cause, the term of the Option shall
expire three months (or such other period specified in the Optionee's
Stock Option Agreement) after such termination, but not later than the
original expiration date specified in the Stock Option Agreement.
(g) TRANSFERABILITY. During an Optionee's lifetime, such Optionee's
ISO(s) shall be exercisable only by him or her and shall not be transferable.
An Optionee's Nonstatutory Options shall also not be transferable during the
Optionee's lifetime, except to the extent otherwise permitted in the Optionee's
Stock Option Agreement. Subject to prior permitted transfers, in the event of
an Optionee's death, such Optionee's Option(s) shall not be transferable other
than by will, by written beneficiary designation or by the laws of descent and
distribution.
(h) NO RIGHTS AS A STOCKHOLDER. An Optionee, or a transferee of an
Optionee, shall have no rights as a stockholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustments shall be made, except as provided
in Section 8.
(i) MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. Within the
limitations of the Plan, the Committee may modify, extend or renew outstanding
Options or may accept the cancellation of outstanding Options (to the extent not
previously exercised) in return for the grant of new Options at the same or a
different price. The foregoing notwithstanding, no modification of an Option
shall, without the consent of the Optionee, impair such Optionee's rights or
increase his or her obligations under such Option.
(j) SUBSTITUTE OPTIONS If the Company at any time should succeed to the
business of another corporation through merger or consolidation, or through the
acquisition of stock or assets of such corporation, Options may be granted under
the Plan in substitution of options previously granted by such corporation to
purchase shares of its stock which options are outstanding at the date of the
succession ("Surrendered Options"). It is specifically intended that this
section of the Plan shall authorize the granting and issuance of Substitute
Options pursuant to the terms of the Amended and Restated Agreement and Plam of
Reorganization by and between Mid-Peninsula Bancorp and Cupertino National
Bancorp dated June 26, 1996. The Committee shall have discretion to determine
the extent to which such Substitute Options shall be granted, the persons to
receive such Substitute Options, the number of Shares to be subject to such
Substitute Options, and the terms and conditions of such Substitute Options
which shall, to the extent permissible within the terms and conditions of the
Plan, be equivalent to the terms and conditions of the Surrendered Options. The
Exercise Price may be determined without regard to Section 6(c); provided
however, that the Exercise Price of each Substitute Option shall be an amount
such that, in the sole and absolute judgment of the Committee (and if the
Substitute Options are to be ISO's, in compliance with Section 424(a) of the
Code), the economic benefit provided by such Substitute Option is not greater
than the economic benefit represented by the Surrendered Option as of the date
of the succession.
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7. PAYMENT FOR SHARES.
(a) GENERAL RULE. The entire Exercise Price of Shares issued under
the Plan shall be payable in lawful money of the United States of America at the
time when such Shares are purchased, except as follows:
(i) ISOS. In the case of an ISO granted under the Plan,
payment shall be made only pursuant to the express provisions of the
applicable Stock Option Agreement. However, the Committee (at its sole
discretion) may specify in the Stock Option Agreement that payment may be
made pursuant to Subsections (b), (c) or (d) below.
(ii) NONSTATUTORY OPTIONS. In the case of a Nonstatutory Option
granted under the Plan, the Committee (at its sole discretion) may accept
payment pursuant to Subsections (b), (c), or (d) below.
(b) SURRENDER OF STOCK. To the extent that this Subsection (b) is
applicable, payment may be made all or in part with Shares which have already
been owned by the Optionee or his or her representative for more than 6 months
and which are surrendered to the Company in good form for transfer. Such Shares
shall be valued at their Fair Market Value on the date when the new Shares are
purchased under the Plan.
(c) EXERCISE/SALE. To the extent that this Subsection (c) is
applicable, payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to a securities broker approved by the
Company to sell Shares and to deliver all or part of the sales proceeds to the
Company in payment of all or part of the Exercise Price and any withholding
taxes.
(d) EXERCISE/PLEDGE. To the extent that this Subsection (d) is
applicable, payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to pledge Shares to a securities broker or
lender approved by the Company, as security for a loan, and to deliver all or
part of the loan proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.
8. ADJUSTMENT OF SHARES.
(a) GENERAL. In the event of a subdivision of the outstanding Stock,
a declaration of a dividend payable in Shares, a declaration of a dividend
payable in a form other than Shares in an amount that has a material effect on
the value of Shares, a combination or consolidation of the outstanding Stock (by
reclassification or otherwise) into a lesser number of Shares, a
recapitalization, a spinoff or a similar occurrence, the Committee shall make
appropriate adjustments in one or more of:
(i) The number of Shares available under Section 5 for future
grants;
(ii) The limit set forth in Section 6(b);
(iii) The number of Shares covered by each outstanding Option;
or
(iv) The Exercise Price under each outstanding Option.
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(b) REORGANIZATIONS. In the event that the Company is a party to a
merger or other reorganization, outstanding Options shall be subject to the
agreement of merger or reorganization. Subject to the provisions of Section
6(e)(i), such agreement may provide, without limitation, for the assumption of
outstanding Options by the surviving corporation or its parent, for their
continuation by the Company (if the Company is a surviving corporation), for
payment of a cash settlement equal to the difference between the amount to be
paid for one Share under such agreement and the Exercise Price, or for the
acceleration of their exercisability followed by the cancellation of Options not
exercised, in all cases without the Optionees' consent. Any cancellation shall
not occur until after such acceleration is effective and Optionees have been
notified of such acceleration and have had reasonable opportunity to exercise
their Options.
(c) RESERVATION OF RIGHTS. Except as provided in this Section 8, an
Optionee or Offeree shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend or
any other increase or decrease in the number of shares of stock of any class.
Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to the Plan shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
9. SECURITIES LAWS.
Shares shall not be issued under the Plan unless the issuance and
delivery of such Shares complies with (or is exempt from) all applicable
requirements of law, including (without limitation) the Securities Act of 1933,
as amended, the rules and regulations promulgated thereunder, state securities
laws and regulations, and the regulations of any stock exchange on which the
Company's securities may then be listed.
10. NO RETENTION RIGHTS.
Neither the Plan nor any Option shall be deemed to give any individual a
right to remain an employee or consultant of the Company or a Subsidiary. The
Company and its Subsidiaries reserve the right to terminate the service of any
employee or consultant at any time, with or without cause, subject to applicable
laws and a written employment agreement (if any).
11. DURATION AND AMENDMENTS.
(a) TERM OF THE PLAN. The Plan, as set forth herein, shall become
effective as of the Effective Date, provided that the Plan has been approved by
the shareholders of the Company in the manner required by applicable law or
regulation. The Plan, if not extended, shall terminate automatically ten years
after the Effective Date, except that any ISO's granted under the Plan must be
granted by September 18, 2006, ten years after the Plan was adopted by the
Board of Directors. It may be terminated on any earlier date pursuant to
Subsection (b) below.
(b) RIGHT TO AMEND OR TERMINATE THE PLAN. The Board of Directors may
amend, suspend or terminate the Plan at any time and for any reason. An
amendment of the Plan shall be subject to the approval of the Company's
shareholders only to the extent required by applicable laws or regulations.
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(c) EFFECT OF AMENDMENT OR TERMINATION. No Shares shall be issued or
sold under the Plan after the termination thereof, except upon exercise of an
Option granted prior to such termination. The termination of the Plan, or any
amendment thereof, shall not affect any Share previously issued or any Option
previously granted under the Plan.
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