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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): MAY 8, 1998
GREATER BAY BANCORP
(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0387041
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
COMMISSION FILE NUMBER: 0-25034
2860 WEST BAYSHORE ROAD
PALO ALTO, CALIFORNIA 94303
(Address of principal executive offices and zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (650) 813-8200
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On May 8, 1998, the Registrant consummated the acquisition of Golden Gate
Bank, a California state chartered bank ("Golden") and a wholly owned subsidiary
of Pacific Rim Bancorporation, a California corporation ("PRB"), through the
merger (the "Merger") of PRB with and into the Registrant, with the Registrant
surviving the Merger and thereafter holding Golden as a banking subsidiary.
Pursuant to an Agreement and Plan of Reorganization, dated February 24,
1998, by and among the Registrant, PRB and the Leo K.W. Lum PRB Revocable Trust
(the "Reorganization Agreement"), each share of PRB stock issued and outstanding
immediately prior to the Effective time of the Merger was converted into 9.50748
shares of the Registrant's restricted Common Stock (an aggregate of 950,748
shares). The Merger was accounted for as a pooling of interests.
For a more detailed discussion of the terms and conditions of the
Reorganization Agreement and the Merger, reference is made to the Registrant's
Annual Report on Form 10-K, filed with the Securities and Exchange Commission on
March 31, 1998, incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
Financial Statements.
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Not Required.
Exhibits.
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2.0 Agreement and Plan of Reorganization, dated February 24, 1998, by and among
Greater Bay Bancorp, Pacific Rim Bancorporation and the Leo K.W. Lum PRB
Revocable Trust, incorporated herein by reference from Exhibit 2 to
Registrant's Annual Report on Form 10-K, filed with the Securities and
Exchange Commission on March 31, 1998.
4.0 Registration Rights Agreement, dated May 8, 1998, by and between the
Registrant and the Leo K.W. Lum PRB Revocable Trust.
23.1 Consent of Coopers & Lybrand L.L.P.
99.0 Press Release dated May 11, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
GREATER BAY BANCORP
(Registrant)
Date: May 20, 1998 By /s/ Steven C. Smith
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Steven C. Smith
Executive Vice President, Chief
Operating Officer and Chief
Financial Officer
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EXHIBIT INDEX
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2.0 Agreement and Plan of Reorganization, dated February 24, 1998, by and among
Greater Bay Bancorp, Pacific Rim Bancorporation and the Leo K.W. Lum PRB
Revocable Trust, incorporated herein by reference from Exhibit 2 to
Registrant's Annual Report on Form 10-K, filed with the Securities and
Exchange Commission on March 31, 1998.
4.0 Registration Rights Agreement, dated May 8, 1998, by and between the
Registrant and the Leo K.W. Lum PRB Revocable Trust.
23.1 Consent of Coopers & Lybrand L.L.P.
99.0 Press Release dated May 11, 1998.
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EXHIBIT 4.0
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 8, 1998, by and between GREATER BAY BANCORP, a California
corporation (the "Company"), and the LEO K.W. LUM PRB REVOCABLE TRUST (the
"Shareholder"), with reference to the following:
RECITALS
A. This Agreement is made pursuant to the Agreement and Plan of
Reorganization, dated as of February 24, 1998 ( the "Reorganization Agreement"),
by and among the Company, PACIFIC RIM BANCORPORATION, a California corporation
("PRB"), and the Shareholder.
B. In order to induce PRB and the Shareholder to enter into the
Reorganization Agreement, the Company has agreed to provide the registration
rights provided for in this Agreement to the Shareholder. The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Reorganization Agreement.
AGREEMENT
NOW, THEREFORE, on the basis of the foregoing recitals and in consideration
of the mutual representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, capitalized terms not
otherwise defined herein have the meanings given such terms in the
Reorganization Agreement, and the following terms shall have the following
meanings:
Advice: As defined in the last paragraph of Section 3 hereof.
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Affiliate: As to any specified person shall mean any other person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be
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amended, supplemented or modified from time to time in accordance with the terms
hereof.
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Business Day: With respect to any act to be performed hereunder, any
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day other than Saturday, Sunday or a day on which a bank chartered under the
laws of the State of California is closed.
Commission: The Securities and Exchange Commission.
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Common Stock: Common stock, no par value per share, of the Company.
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Company: Greater Bay Bancorp, a California corporation, and any
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successor corporation thereto.
Effectiveness Period: As defined in Section 2(a) hereof.
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Effectiveness Target Date: The first Business Day following the
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Publication Date.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations promulgated by the Commission pursuant thereto.
Proceeding: An action, claim, suit or proceeding (including, without
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limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus: The prospectus included in any Shelf Registration
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Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated pursuant to the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the issuance or resale of any portion of the Restricted
Securities covered by such Shelf Registration Statement, and all other
amendments and supplements to any such prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such prospectus.
Publication Date: The date of the Company's first publication of
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financial results covering at least 30 days of post-Merger combined operations.
Restricted Securities: The shares of Company Common Stock issued to
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the Shareholder in the Merger.
Rule 144: Rule 144 promulgated by the Commission pursuant to the
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Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Rule 415: Rule 415 promulgated by the Commission pursuant to the
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Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
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Rule 424: Rule 424 promulgated by the Commission pursuant to the
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Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations promulgated by the Commission thereunder.
Shareholder: The Shareholder, as defined in the recitals hereto, and
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any other person or entity who acquires Restricted Securities from the
Shareholder subsequent to the Effective Time of the Merger in accordance with
the provisions of Section 8(c) hereof.
Shelf Registration Statement: Any registration statement of the
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Company that covers the resale of any of the Restricted Securities pursuant to
the provisions of this Agreement, including any Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference, if any, in such
registration statement.
2. SHELF REGISTRATION.
(a) The Company shall use its commercially reasonable efforts to file
with the Commission as soon as practicable after the Effective Time of the
Merger, one Shelf Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering 400,000 shares of the Restricted
Securities. The Company shall use its commercially reasonable efforts, as
described in Section 3, to cause such Shelf Registration Statement to be
declared effective pursuant to the Securities Act as promptly as practicable
following the filing thereof, but in no event later than the Effectiveness
Target Date, and to keep such Shelf Registration Statement continuously
effective under the Securities Act thereafter for the period ending one year
after the Effective Time of the Merger, or ending when there cease to be
outstanding any Restricted Securities which were the subject of such Shelf
Registration Statement (the "Effectiveness Period"), subject to (i) the
Company's right to suspend the effectiveness of such Shelf Registration
Statement as provided in the second to last paragraph of Section 3; and (ii) the
Shareholder's right to require the Company to extend the effectiveness of such
Shelf Registration Statement for one additional calendar quarter as provided in
the last paragraph of Section 3. The Shelf Registration Statement shall be on
Form S-3 under the Securities Act or such successor or other appropriate form
permitting registration of such Restricted Securities for resale by the
Shareholder in open market transactions (with or without the use of one or more
brokers).
(b) During the Effectiveness Period, the Company shall use its
commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective by supplementing and amending such Shelf Registration
Statement as required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration Statement if required by
the Securities Act, subject to the Company's right to suspend the effectiveness
of such Shelf Registration Statement as provided in the second to last paragraph
of Section 3.
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3. REGISTRATION PROCEDURES. In connection with the Shelf Registration
Statement, the Company is required by the provisions of Section 2 hereof to
effect the registration of Restricted Securities on the appropriate form
available to permit the sale of the Restricted Securities in open market
transactions (with or without the use of one or more brokers), and pursuant
thereto the Company, at its expense and as expeditiously as reasonably possible,
agrees with respect to the Shelf Registration Statement to:
(a) Furnish to the Shareholder such number of copies of the Shelf
Registration Statement, and each amendment and supplement thereto, preliminary
Prospectus, final Prospectus and such other documents as the Shareholder may
reasonably request;
(b) Prepare and file with the Commission such amendments, including
post-effective amendments, to the Shelf Registration Statement as may be
necessary to keep such Shelf Registration Statement continuously effective and
current for the Effectiveness Period (other than any period in which sales may
be suspended pursuant to the second to last paragraph of this Section 3); cause
the related Prospectus to be amended or supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities covered by such
Shelf Registration Statement during such period in accordance with the intended
methods of disposition as contemplated hereby;
(c) Use its commercially reasonable efforts to register or qualify the
securities covered by the Shelf Registration Statement under the state
securities or "blue sky" laws of up to ten (10) jurisdictions as the Shareholder
may select within ten (10) days prior to the original filing of the Shelf
Registration Statement, except that the Company shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified;
(d) Notify the Shareholder promptly after it shall receive notice
thereof, of the date and time when the Shelf Registration Statement and each
post-effective amendment thereto has become effective or a supplement to any
Prospectus forming a part of any such registration statement has been filed;
(e) Notify the Shareholder promptly of any request by the Commission
or any state governmental authority for the amendment or supplementation of the
Shelf Registration Statement or Prospectus or for additional information;
(f) Prepare and file with the Commission, promptly upon the request of
the Shareholder, any amendments or supplements to the Shelf Registration
Statement or Prospectus that, in the written opinion of counsel for the
Shareholder, is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Restricted Securities by
the Shareholder;
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(g) Prepare and file promptly with the Commission, and promptly notify
the Shareholder of the filing of, such amendments or supplements to the Shelf
Registration Statement or Prospectus as may be necessary to correct any
statements or omissions if to the Company's knowledge, at the time when a
Prospectus relating to such securities is required to be delivered under the
Securities Act, any event has occurred as the result of which any such
Prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(h) If the Shareholder is required to deliver a Prospectus at a time
when the Prospectus then in circulation is not in compliance with the Securities
Act or the rules and regulations of the Commission, prepare promptly upon
request such amendments or supplements to the Shelf Registration Statement and
such Prospectus as may be necessary for such Prospectus to comply with the
requirements of the Securities Act and such rules and regulations;
(i) Advise the Shareholder promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the Commission, any state
securities commission, any other governmental agency or any court suspending the
effectiveness of the Shelf Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued;
(j) Make available for inspection upon request by the Shareholder and
by the Shareholder's counsel all financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information reasonably
requested by the Shareholder or counsel, in connection with the Shelf
Registration Statement but only (x) to the extent necessary to the conduct of
customary due diligence, and (y) if the recipient thereof has executed a
confidentiality agreement in a form reasonably acceptable to the Company
protecting against the misappropriation or disclosure of the Company's
confidential information; and
(k) List all Common Stock covered by the Shelf Registration Statement
on the stock exchange or system, if any, on which the Common Stock of the
Company is then listed.
If the Shareholder proposes to sell any Restricted Securities pursuant
to the Shelf Registration Statement, the Shareholder shall notify the Company of
its intent to do so (including the proposed manner and timing of such sales) at
least two (2) full trading days prior to such sale, and the provision of such
notice to the Company shall conclusively be deemed to reestablish and reconfirm
an agreement by the Shareholder to comply with the registration provisions in
this Agreement. Unless otherwise specified in such notice, such notice shall be
deemed to constitute a representation that any information previously supplied
by the Shareholder expressly for inclusion in the Shelf Registration Statement
(as the same may have been superseded by subsequent information) is accurate as
of the date of such notice. At any time within such two (2) trading day
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period, the Company may refuse to permit the Shareholder to resell any
Restricted Securities pursuant to any Shelf Registration Statement, provided,
however, that in order to exercise this right, the Company or its counsel must
deliver a certificate in writing to the Shareholder to the effect that a delay
in such sale is necessary because a sale pursuant to the Shelf Registration
Statement in its then-current form without the addition of material, nonpublic
information about the Company could constitute a violation of the federal
securities laws. In addition, in connection with any sale of the Restricted
Securities as to which any registration is being effected, the Company may
require the Shareholder to: (i) furnish to the Company such information
regarding the distribution of such Restricted Securities as is required by law
to be disclosed in the Shelf Registration Statement and (ii) provide to the
Company a signed writing accepting and acknowledging its rights and
obligations hereunder.
The Shareholder agrees by acquisition of any Restricted Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 3(e), 3(g) or 3(i) hereof, the Shareholder will
forthwith discontinue disposition of such Restricted Securities covered by such
Shelf Registration Statement or Prospectus until the Shareholder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(g) hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and, in either case,
has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus.
The registration rights of the Shareholder pursuant to this Agreement
and the ability to offer and sell Restricted Securities pursuant to the Shelf
Registration Statement are subject to the conditions and limitations contained
in this paragraph, and the Shareholder will be deemed to have agreed with the
Company that if the Board of Directors of the Company determines in its good
faith judgment that the use of any Prospectus would require the disclosure of
material information that the Company has a bona fide business purpose for
preserving as confidential, and that the Company is not otherwise required by
applicable securities laws or regulations to disclose, or that the offer and
sale of the Restricted Securities would interfere with any financing,
acquisition or other material transaction contemplated by the Company, upon
written notice of such determination by the Company, the rights of the
Shareholder to offer, sell or distribute any Restricted Securities pursuant to
the Shelf Registration Statement or to require the Company to take action with
respect to the registration or sale of any Restricted Securities pursuant to the
Shelf Registration Statement shall be suspended until the date upon which the
Company notifies the Shareholder in writing (the "Suspension Termination
Notice") that suspension of such rights for the grounds set forth in this
paragraph is no longer necessary, and the Company agrees to give such notice as
promptly as practicable following the date that such suspension of rights is no
longer necessary. Further, if during the Effectiveness Period, the Shareholder
is an officer, director or employee of the Company, the rights of the
Shareholder to offer, sell or otherwise effect any distribution of Restricted
Securities pursuant to the Shelf Registration Statement or to require the
Company to take action with respect to the registration or sale of any
Restricted Securities pursuant to the Shelf Registration Statement
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shall be suspended during any period in which directors, officers or employees
of the Company are not permitted to offer or sell securities in accordance
with the Company's policies.
If, as a result of the policies and requirements of the Company and/or
the limitations under the Securities Act as described in this Section 3, the
Shareholder does not have at least twenty (20) trading days available to sell
Restricted Securities in each calendar quarter (prorated for any partial
quarter) from the Effectiveness Target Date until the first anniversary of the
Closing Date, the Shareholder, at its option, may notify the Company in writing
that the Shareholder requests the Company to extend the Effectiveness Period for
one additional calendar quarter. Upon receipt of such notice and its
verification that the Shareholder has not had at least twenty (20) trading days
available in each calendar quarter as described above, the Company shall use its
commercially reasonable efforts to extend the Effectiveness Period for one
additional calendar quarter and all of its and the Shareholder's other
obligations hereunder shall be extended for such additional calendar quarter.
4. REGISTRATION EXPENSES.
The Company shall bear all fees and expenses incident to the
performance of or compliance with its obligations under this Agreement,
including without limitation printing expenses (including a reasonable number of
Prospectuses for circulation by the Shareholder), legal fees and disbursements
of counsel for the Company, "blue sky" expenses, accounting fees and filing
expenses. The Shareholder shall bear all other fees and expenses incident
hereto, including without limitation underwriting commissions or similar
charges, legal fees and disbursements of counsel for the Shareholder.
5. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless the
Shareholder, any underwriter (as defined in the Securities Act) for the
Shareholder, its settlors, beneficiaries, officers, directors, shareholders or
partners, and each Person who controls the Shareholder or underwriter within the
meaning of the Securities Act or the Exchange Act, from and against, and agrees
to reimburse such persons and entities with respect to, any and all claims,
actions (actual or threatened), demands, losses, damages, liabilities, costs and
expenses to which such persons or entities may become subject under the
Securities Act or otherwise, insofar as such claims, actions, demands, losses,
damages, liabilities, costs or expenses arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Shelf Registration Statement, any Prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company shall not be liable in any such case to the extent that any
such claim, action, demand, loss, damage, liability, cost or expense is caused
by (i) an untrue statement or alleged untrue statement or omission or alleged
omission contained in written information furnished by such persons or entities
specifically for use
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in the preparation of the Shelf Registration Statement or (ii) any untrue
statement or alleged untrue statement of material fact contained in, or any
omission or alleged omission of a material fact from, a Prospectus if (x) a
later Prospectus corrects the untrue statement or alleged untrue statement, or
omission or alleged omission, which is the basis for the claim, action,
demand, loss, damage, liability, cost or expense for which indemnification is
sought, (y) a copy of the later Prospectus had been made available to the
Shareholder in a timely fashion in accordance with the Securities Act and had
not been sent or given to such purchaser at or prior to confirmation of sale
to such purchaser and the Shareholder was under an obligation to deliver such
later Prospectus to the purchaser and (z) there would have been no such
liability but for such failure to deliver such later Prospectus by the
Shareholder.
(b) The Shareholder hereby agrees to indemnify and hold harmless the
Company, its officers, directors, any underwriter and each person who controls
the Company or such underwriter within the meaning of the Securities Act or the
Exchange Act, from and against, and agrees to reimburse the Company, its
officers, directors, underwriters and such controlling persons with respect to,
any and all claims, actions, demands, losses, damages, liabilities, costs or
expenses to which the Company, its officers, directors, underwriters or such
controlling persons may become subject under the Securities Act or otherwise,
insofar as such claims, actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Shelf Registration Statement, any
Prospectus contained therein or any amendment or supplement thereto, or are
caused by the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon written information furnished by the Shareholder specifically for use in
the preparation thereof; provided, however, that the Shareholder shall not be
liable in any case to the extent such claim, action, demand, loss, damage,
liability, cost or expense arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in, or any omission or
alleged omission of a material fact from, a Prospectus if (x) a later Prospectus
shall correct the untrue statement or alleged untrue statement, or omission or
alleged omission, which is the basis for the claims, actions, demands, losses,
damages, liabilities, costs or expenses for such indemnification is sought, (y)
a copy of the later Prospectus had been made available to the Shareholder in a
timely fashion in accordance with the Securities Act and had not been sent or
given to such purchaser at or prior to confirmation of sale to such purchaser
and the Company or a controlling person other than the Shareholder shall have
been under an obligation to deliver such later Prospectus, and (z) there would
have been no such liability but for such failure to deliver such later
Prospectus by the Company or controlling person.
(c) Promptly after receipt by a party indemnified pursuant to the
provisions of subsection (a) or (b) of this Section 5 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefor is to be
made against the indemnifying party pursuant to the provisions of subsection (a)
or (b), notify the indemnifying
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party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability that it may have to
an indemnified party otherwise than under this Section 5 and shall not relieve
the indemnifying party from liability under this Section 5 unless such
indemnifying party is prejudiced by such omission. In case any such action is
brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying parties similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel (in which case the
indemnifying party shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties). Upon the permitted
assumption by the indemnifying party of the defense of such action, and
approval by the indemnified party of counsel, the indemnifying party shall not
be liable to such indemnified party under subsection (a) or (b) for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence, (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
No indemnifying party shall be liable to an indemnified party for any
settlement of any action or claim without the prior written consent of the
indemnifying party and no indemnifying party may unreasonably withhold its
consent to any such settlement. No indemnifying party will consent to entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability with respect to such claim
or litigation.
(d) If the indemnification provided for in subsection (a) or (b) of
this Section 5 is held by a court of competent jurisdiction to be unavailable to
a party to be indemnified with respect to any claims, actions, demands, losses,
damages, liabilities, costs or expenses referred to therein, then each
indemnifying party under any such subsection, in lieu of indemnifying such
indemnified party thereunder, hereby agrees to contribute to the amount paid or
payable by such indemnified party as a result of such claims, actions, demands,
losses, damages, liabilities, costs or expenses in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and of
the Shareholder on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. Notwithstanding the foregoing,
the amount that the Shareholder shall be obligated to contribute pursuant to
subsection (b) or this subsection (d) shall be limited to an amount equal to the
per share public offering price multiplied by the number of shares of Restricted
Securities sold by the Shareholder pursuant to the Shelf Registration Statement
that gives rise to such obligation to contribute. The relative fault of the
Company on the one hand and the Shareholder on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue
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statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Shareholder's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to indemnification or
contribution hereunder from any person who was not guilty of such fraudulent
misrepresentation.
6. RESTRICTIONS ON SALES. Notwithstanding any other provision hereof,
during any three month period from the effectiveness of any Shelf Registration
Statement, the Shareholder agrees not to sell or otherwise dispose of any shares
of Common Stock registered under such Shelf Registration Statement if such sale
or other disposition, when aggregated with sales or dispositions of Restricted
Securities or any other securities of the Company held by the Shareholder, would
exceed the greater of: (x) one percent (1%) of the Common Stock then
outstanding as shown by the most recent report or statement published by the
Company or (y) the average weekly reported volume of trading in the Common Stock
during the four calendar weeks preceding the date of the proposed sale or other
disposition.
7. REPORTING REQUIREMENTS UNDER THE EXCHANGE ACT. The Company agrees to
file timely such information, documents and reports as the Commission may
require or prescribe under Section 13 or 15(d) (whichever is applicable) of the
Exchange Act.
8. MISCELLANEOUS.
(a) Amendments and Waivers. With the written consent of the
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Shareholder, the obligations of the Company and the rights of the Shareholder
under this Agreement may be waived (either generally or in a particular
instance, either retroactively or prospectively and either for a specified
period of time or indefinitely), and with the same consent the Company, when
authorized by resolution of its Board, may enter into a supplementary agreement
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of any supplemental
agreement or modifying in any manner the rights and obligations hereunder of the
Shareholder and the Company. Neither this Agreement nor any provision hereof
may be changed, waived, discharged or terminated orally or by course of dealing,
but only by a statement in writing signed by the party against which enforcement
of the change, waiver, discharge or termination is sought, except to the extent
provided in this Section 8(a). Specifically, but without limiting the
generality of the foregoing, the failure of the Shareholder at any time or times
to require performance of any provision hereof by the Company shall in no manner
affect the right of the Shareholder at a later time to enforce the same. No
waiver by any party of the breach of any term or provision contained in this
Agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
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(b) Notices. All notices and other communications provided for herein
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shall be made in writing by hand-delivery, next-day air courier, certified
first-class mail, return receipt requested, telex or telecopy:
(i) if to the Company, as provided in the Reorganization
Agreement,
(ii) if to the Shareholder, to the address of the Shareholder as
it appears in the Common Stock register of the Company.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when (v) delivered by
hand, if personally delivered, (w) one Business Day after being timely delivered
to a next-day air courier, (x) five Business Days after being deposited in the
mail, postage prepaid, if mailed, (y) when answered back, if telexed or (z) when
receipt is acknowledged by the recipient's telecopier machine, if telecopied.
(c) Successors and Assigns. This Agreement and the rights and
----------------------
benefits of the Shareholder hereunder may be assigned or transferred by the
Shareholder only with the express prior written consent of the Company (except
that the Shareholder may make assignments or transfers in the form of gifts or
similar dispositions without the Company's prior consent for bona fide estate
planning purposes). In any such case, no Shareholder assignee or transferee
shall have any of the rights granted to the Shareholder under this Agreement
until such assignee or transferee shall have acknowledged its rights and
obligations hereunder by a signed written statement of such assignee's or
transferee's acceptance of such rights and obligations. This Agreement may be
assigned or transferred by the Company in the Company's sole discretion,
provided that any successor, assignee or transferee shall have its common stock
quoted on the Nasdaq National Market or listed on a national securities
exchange, and the obligations and duties of the Company hereunder shall become
the obligations and duties of any successor, assignee or transferee of the
Company upon effectiveness of such assignment or transfer..
(d) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(e) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California, as applied to contracts
made and performed within the State of California without regard to principles
of conflicts of law.
(f) Severability. The remedies provided herein are cumulative and not
------------
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the
11
<PAGE>
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(g) Construction. All Section and other subdivision titles or
------------
captions contained in this Agreement are for convenience of reference only and
shall not effect the meaning or interpretation of any provision of this
Agreement. All terms used in this Agreement include, where appropriate the
singular as well as the plural and the masculine, feminine and neuter genders.
The words "herein," "hereof" and "hereunder," and other words of similar import,
refer to this Agreement as a whole and not to any particular Section or other
subdivision; and all Section and other subdivision references contained herein
refer to Sections and other subdivisions hereof. Use herein of the term "or" is
not intended to be exclusive, unless the context clearly requires. All
provisions hereof apply to successive events and transactions.
[The remainder of this page is intentionally left blank.]
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Registration
Rights Agreement as of the day and year first above written.
GREATER BAY BANCORP
/s/ Duncan L. Matteson
By:___________________________________
Duncan L. Matteson
Co-Chairman
/s/ David L. Kalkbrenner
By:___________________________________
David L. Kalkbrenner
President and Chief Executive Officer
SHAREHOLDER
/s/ Leo K.W. Lum, Trustee
By:_____________________________________
Leo K.W. Lum PRB Revocable Trust
Leo K.W. Lum, not in his individual
capacity but solely as Trustee
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<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Form 8-K dated May 20,
1998, of our report dated February 20, 1998 on our audits of the consolidated
financial statements of Greater Bay Bancorp and Subsidiaries as of December
31, 1997 and 1996, and for the three years in the period ended December 31,
1997, appearing in the Annual Report on Form 10-K of Greater Bay Bancorp and
Subsidiaries as filed with the SEC on March 31, 1998.
/s/ Coopers & Lybrand L.L.P.
San Francisco, California
May 20, 1998
<PAGE>
EXHIBIT 99.0
GREATER BAY
BANCORP
For Immediate Release For Information Contact
--------------------- -----------------------
May 11, 1998 David L. Kalkbrenner, President & CEO
Greater Bay Bancorp (650) 614-5767
Steven C. Smith, EVP, COO & CFO
Greater Bay Bancorp (650) 813-8222
James R. Woolwine, President & CEO
Golden Gate Bank, (415) 421-9000
GREATER BAY BANCORP AND
PACIFIC RIM BANCORPORATION ANNOUNCE COMPLETION
OF STRATEGIC BUSINESS COMBINATION
PALO ALTO, Calif. -- Greater Bay Bancorp ("GBBK" on Nasdaq), the $1.2
billion in assets holding company for Cupertino National Bank, Mid-Peninsula
Bank, Peninsula Bank of Commerce, Venture Banking Group and Greater Bay Trust
Company, announced that the merger with Pacific Rim Bancorporation, holding
company for Golden Gate Bank, San Francisco, California, was completed on May 8,
1998. With the completion of the merger, Golden Gate Bank will become a wholly
owned subsidiary of Greater Bay Bancorp. The combined entity will continue to
focus on serving the greater Bay Area through its ten combined office locations
from San Francisco to San Jose. The transaction furthers the strategic emphasis
of Greater Bay Bancorp in becoming the preeminent independent community
financial services company based in the San Francisco Bay Area market. Based on
March 31, 1998 financial information, the combined company will have total
assets of approximately $1.3 billion and equity of approximately $80 million.
David L. Kalkbrenner, President and Chief Executive Officer of Greater Bay
Bancorp commented, "We are excited about having Golden Gate Bank join the
Greater Bay Bancorp family, as the business combination allows Greater Bay
Bancorp to strategically position itself in San Francisco, a key financial
center for California and the United States." Mr. Kalkbrenner continued, "The
combination furthers Greater Bay Bancorp's strategic plan to build its Super
Community Banking franchise, which significantly benefits our clients and our
shareholders."
James Woolwine, President and Chief Executive Officer of Golden Gate Bank
commented, "We firmly believe this merger is very beneficial for our current
clients and provides significant opportunities to attract new client
relationships through the expanded services available as a member of the Greater
Bay Bancorp family."
Leo K. W. Lum, Chairman of Pacific Rim Bancorporation and Golden Gate Bank
commented, "With the continued out of state mergers of California based business
banks, it is apparent that San Francisco is an excellent market for a
relationship focused organization like Greater Bay Bancorp and our merger could
not have been planned at a better time to take advantage of this opportunity."
Effective as of May 26, 1998, Mr. Lum will join the Board of Directors of
Greater Bay Bancorp.
<PAGE>
The terms of the agreement provide that Pacific Rim Bancorporation's sole
shareholder will receive approximately 475,000 shares of Greater Bay Bancorp
stock (approximately 950,000 shares after the two-for-one stock split for
shareholders of record as of April 30, 1998) in a tax-free exchange. The total
value of the Greater Bay Bancorp shares issued approximates $30.9 million. The
merger will be accounted for as a "pooling of interests."
This news release contains statements which constitute forward-looking
statements (within the meaning of the Private Securities Litigation Reform Act
of 1995), that involve risks and uncertainties. Actual results may differ
materially from the results discussed in these forward-looking statements.
Factors that might cause such a difference include, but are not limited to,
expected cost savings from the merger not being fully realized, revenues
following the merger being lower than expected and costs or difficulties related
to the integration of the business of Greater Bay Bancorp and Pacific Rim
Bancorporation being greater than expected. For additional information
concerning risks and uncertainties, please refer to Greater Bay Bancorp's Annual
Report on Form 10-K for the year-ended December 31, 1997.
"WE INVEST IN RELATIONSHIPS"
