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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): March 23, 2000
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 5. Other Events.
(a) On March 23, 2000 (the "Closing Date"), Greater Bay Bancorp (the
"Registrant") consummated the sale of 324,324 shares (the "Shares") of the
Registrant's common stock, no par value, in a private offering pursuant to a
Securities Purchase Agreement, dated as of March 22, 2000, between the
Registrant and certain investors identified therein (the "Investors"). The
Registrant sold the Shares for a purchase price of $37.00 per share, or an
aggregate amount of $12,000,000. In addition, the Registrant entered into a
Registration Rights Agreement, dated as of March 23, 2000, with the Investors
pursuant to which the Registrant has agreed to file, within 30 business days of
the Closing Date, a registration statement with the Securities and Exchange
Commission registering the Shares under the Securities Act of 1933, as amended.
(b) On March 23, 2000, the Registrant completed the issuance of $9,500,000
in Fixed Rate Capital Pass-Through Securities (liquidation amount $1,000 per
security) (the "Trust Preferred Securities") through the company's trust
subsidiary GBB Capital III, to a qualified institutional buyer. The Trust
Preferred Securities bear a 10 7/8% fixed rate of interest payable semi-
annually. GBB Capital III used the proceeds from the sale of the trust
preferred securities to purchase junior subordinated deferrable interest
debentures of Greater Bay Bancorp. Greater Bay Bancorp intends to invest a
portion of the net proceeds in one or more of its subsidiary banks to increase
their capital levels and intends to use the remaining net proceeds for general
corporate purposes. Under applicable regulatory guidelines, Greater Bay Bancorp
expects that a certain portion of the Trust Preferred Securities will qualify as
Tier I Capital, and the remaining portion will qualify as Tier II Capital.
Item 7. Financial Statements and Exhibits.
Exhibits
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4.1 Securities Purchase Agreement, dated as of March 22, 2000, between the
Registrant and the Investors
4.2 Registration Rights Agreement, dated as of March 23, 2000, between the
Registrant and the Investors
99.1 Press Release dated March 23, 2000 re completion of the offerings
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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)
Dated: March 24, 2000 By: /s/ Linda M. Iannone
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Linda M. Iannone
Senior Vice President and General
Counsel
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Exhibit Index
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4.1 Securities Purchase Agreement, dated as of March 22, 2000, between the
Registrant and the Investors
4.2 Registration Rights Agreement, dated as of March 23, 2000, between the
Registrant and the Investors
99.1 Press Release dated March 23, 2000 re completion of the offerings
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Exhibit 4.1
Exhibit 4.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of March
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22, 2000 is made by and among Greater Bay Bancorp, a California corporation,
with headquarters located at 2860 West Bayshore Road, Palo Alto, California (the
"Company"), and the investors named on the signature pages hereto (the
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"Investors").
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RECITALS:
A. The Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Section 4(2) of the Securities Act and Rule 506 under Regulation D.
B. The Investors desire, upon the terms and conditions stated in this
Agreement, to purchase shares of the Company's Common Stock, for an aggregate
purchase price of $12,000,000. The purchase price per share of the Common Stock
is $37.00.
C. Contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement
under which the Company has agreed to provide certain registration rights under
the Securities Act, the rules and regulations promulgated thereunder and
applicable state securities laws.
D. The capitalized terms used herein and not otherwise defined have the
meanings given them in Article 8 hereof.
In consideration of the premises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Investors hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Purchase and Sale of Securities. At the Closing, subject to the terms
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of this Agreement and the satisfaction or waiver of the conditions set forth in
Articles VI and VII hereof, the Company will issue and sell to each Investor,
and each Investor will (on a several and not a joint basis) purchase from the
Company, the number of shares of Common Stock set forth beneath such Investor's
name on the signature pages hereof.
1.2 Payment. Each Investor will pay the purchase price for the number of
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Securities set forth beneath its name on the signature pages hereof, by wire
transfer of immediately available funds in accordance with the Company's written
wire instructions, upon delivery by the Company to each Investor of certificates
representing the Securities so purchased by such Investor and the Company will
deliver such certificates against delivery of the purchase price as described
above.
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1.3 Closing Date. Subject to the satisfaction or waiver of the conditions
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set forth in Articles VI and VII hereof, the Closing will take place at 12:00
p.m. Pacific Standard Time on March 23, 2000 or at another date or time agreed
upon by the parties to this Agreement (the "Closing Date"). The Closing will be
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held at the offices of Greater Bay Bancorp, 2860 West Bayshore Road, Palo Alto,
California, or at such other place as the parties agree.
ARTICLE II
INVESTOR'S REPRESENTATIONS AND WARRANTIES
Each Investor represents and warrants to the Company, severally and solely
with respect to itself and its purchase hereunder and not with respect to any
other Investor, that:
2.1 Investment Purpose. The Investor is purchasing the Securities for its
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own account and not with a present view toward the public sale or distribution
thereof, except pursuant to sales registered or exempted from registration under
the Securities Act; provided, however, that by making the representation herein,
the Investor does not agree to hold any of the Securities for any minimum or
other specific term and reserves the right to dispose of the Securities at any
time in accordance with or pursuant to a registration statement or an exemption
under the Securities Act.
2.2 Accredited Investor Status. The Investor is an "accredited investor"
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as defined in Rule 501(a) of Regulation D.
2.3 Reliance on Exemptions. The Investor understands that the Securities
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are being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Investor's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth herein in order to determine the
availability of such exemptions and the eligibility of the Investor to acquire
the Securities.
2.4 Information. The Investor and its advisors, if any, have been
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furnished with all materials relating to the business, finances and operations
of the Company, and materials relating to the offer and sale of the Securities,
that have been requested by the Investor or its advisors, if any. The Investor
and its advisors, if any, have been afforded the opportunity to ask questions of
the Company. Neither such inquiries nor any other due diligence investigation
conducted by the Investor or any of its advisors or representatives modify,
amend or affect the Investor's right to rely on the Company's representations
and warranties contained in Article III below. The Investor acknowledges and
understands that its investment in the Securities involves a significant degree
of risk, including the risks reflected in the SEC Documents.
2.5 Governmental Review. The Investor understands that no United States
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federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities or an
investment therein.
2.6 Transfer or Resale. The Investor understands that:
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(a) except as provided in the Registration Rights Agreement, the
Securities have not been and are not being registered under the Securities Act
or any applicable state securities laws and, consequently, the Investor may have
to bear the risk of owning the Securities
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for an indefinite period of time because the Securities may not be transferred
unless (i) the resale of the Securities is registered pursuant to an effective
registration statement under the Securities Act; (ii) the Investor has delivered
to the Company an opinion of counsel (in form, substance and scope customary for
opinions of counsel in comparable transactions) to the effect that the
Securities to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; (iii) the Securities are sold or transferred
pursuant to Rule 144; or (iv) the Securities are sold or transferred to an
affiliate (as defined in Rule 144) of the Investor pursuant to an exemption
from registration under the Securities Act.
(b) any sale of the Securities made in reliance on Rule 144 may be
made only in accordance with the terms of Rule 144 and, if Rule 144 is not
applicable, any resale of the Securities under circumstances in which the seller
(or the person through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the Securities Act) may require compliance with some
other exemption under the Securities Act or the rules and regulations of the SEC
thereunder; and
(c) except as set forth in the Registration Rights Agreement, neither
the Company nor any other person is under any obligation to register the
Securities under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder.
2.7 Legends. The Investor understands that until (a) the Securities may
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be sold by the Investor under Rule 144(k) or (b) such time as the resale of the
Securities have been registered under the Securities Act as contemplated by the
Registration Rights Agreement, the certificates representing the Securities will
bear a restrictive legend in substantially the following form (and a stop-
transfer order may be placed against transfer of the certificates for such
Securities):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED, SOLD OR
TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS.
The legend set forth above will be removed and the Company will issue a
certificate without the legend to the holder of any certificate upon which it is
stamped, in accordance with the terms of Article V hereof.
2.8 Authorization; Enforcement. This Agreement and the Registration
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Rights Agreement have been duly and validly authorized, executed and delivered
on behalf of the Investor and are valid and binding agreements of the Investor
enforceable in accordance with their terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and the application of general
principles of equity.
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2.9 Residency. The Investor is a resident of the jurisdiction set forth
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immediately below such Investor's name on the signature pages hereto.
2.10 Acknowledgements Regarding Placement Agent. Purchaser acknowledges
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that Keefe, Bruyette & Woods, Inc. is acting as placement agent (the "Placement
Agent") for the Securities being offered hereby and will be compensated by the
Company for acting in such capacity. Purchaser further acknowledges that the
Placement Agent has acted solely as placement agent in connection with the
offering of the Securities by the Company, that the information and data
provided to Purchaser in connection with the transactions contemplated hereby
have not been subjected to independent verification by the Placement Agent, and
that the Placement Agent makes no representation or warranty with respect to the
accuracy or completeness of such information, data or other related disclosure
material. Purchaser further acknowledges that in making its decision to enter
into this Agreement and purchase the Securities it has relied on its own
examination of the Company and the terms of, and consequences of, holding the
Securities. Purchaser further acknowledges that the provisions of this Section
2.10 are for the benefit of, and may be enforced by, the Placement Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors that:
3.1 Organization and Qualification. The Company and each of the Banks is
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duly incorporated, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, with full power and authority
(corporate and other) to own, lease, use and operate its properties and to carry
on its business as and where now owned, leased, used, operated and conducted.
The Company and each of the Banks is duly qualified to do business and is in
good standing in every jurisdiction in which the nature of the business
conducted by it makes such qualification necessary, except where the failure to
be so qualified or in good standing would not have a Material Adverse Effect.
3.2 Authorization; Enforcement. (a) The Company has all requisite
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corporate power and authority to enter into and to perform its obligations under
this Agreement and the Registration Rights Agreement, to consummate the
transactions contemplated hereby and thereby and to issue the Securities in
accordance with the terms hereof and thereof; (b) the execution, delivery and
performance of this Agreement and the Registration Rights Agreement by the
Company and the consummation by it of the transactions contemplated hereby and
thereby (including without limitation the issuance of the Securities) have been
duly authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, or its shareholders is
required; (c) this Agreement and the Registration Rights Agreement have been
duly executed by the Company; and (d) each of this Agreement and the
Registration Rights Agreement constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
or moratorium or similar laws affecting the rights of creditors generally and
the application of general principles of equity.
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3.3 Capitalization. As of March 15, 2000, the authorized capital stock of
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the Company consists of (a) 24,000,000 shares of Common Stock, of which
14,376,768 shares are issued and outstanding as of March 20, 2000 and (b)
4,000,000 shares of preferred stock, no par value per share, of which 1,200,000
shares are designated as Series A Preferred Stock and none are issued and
outstanding. All of the outstanding shares of capital stock are duly authorized,
validly issued, fully paid and nonassessable. No shares of capital stock of the
Company, including the Securities issuable pursuant to this Agreement, are
subject to preemptive rights or any other similar rights of the shareholders of
the Company or any liens or encumbrances imposed through the actions or failure
to act of the Company. Except as disclosed in Schedule 3.3 and except for the
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transactions contemplated hereby, (i) there are no outstanding options,
warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal,
agreements, understandings, claims or other commitments or rights of any
character whatsoever relating to, or securities or rights convertible into,
exercisable for, or exchangeable for any shares of capital stock of the Company,
or arrangements by which the Company is or may become bound to issue additional
shares of capital stock of the Company; (ii) there are no agreements or
arrangements (other than the Registration Rights Agreement) under which the
Company is obligated to register the sale of any of its securities under the
Securities Act and (iii) there are no anti-dilution or price adjustment
provisions contained in any security issued by the Company (or in any agreement
providing rights to security holders) that will be triggered by the issuance of
the Securities. The Company has made available to the Investors if requested
true and correct copies of the Company's Articles of Incorporation, as amended,
as in effect on the date hereof, the Company's By-laws as in effect on the date
hereof and the terms of all securities convertible into or exercisable for
Common Stock of the Company and the material rights of the holders thereof in
respect thereto.
3.4 Issuance of Securities. The Securities are duly authorized and, upon
----------------------
issuance in accordance with the terms of this Agreement, will be validly issued,
fully paid and non-assessable, free from all taxes, liens, claims, encumbrances
and charges with respect to the issue thereof, will not be subject to preemptive
rights or other similar rights of shareholders of the Company, and will not
impose personal liability on the holders thereof.
3.5 No Conflicts; No Violation.
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(a) The execution, delivery and performance of this Agreement and the
Registration Rights Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Securities) will not (i) conflict with or result
in a violation of any provision of its Articles of Incorporation, as amended or
By-laws, as amended or (ii) violate or conflict with, or result in a breach of
any provision of, or constitute a default (or an event which with notice or
lapse of time or both could become a default) under, or give to others any
rights of termination, amendment (including without limitation, the triggering
of any anti-dilution provision), acceleration or cancellation of, any agreement,
indenture, patent, patent license, or instrument to which the Company or any of
the Banks is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including U.S. federal and state
securities laws and regulations and regulations of any self-regulatory
organizations to which the Company or its securities are subject) applicable to
the Company or any of the Banks or by which any property or asset of the Company
or any of the Banks is bound or affected (except for such conflicts, breaches,
defaults,
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terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect).
(b) The Company is not in violation of its Articles of Incorporation,
as amended, or By-laws, as amended, and neither the Company nor the Banks is in
default (and no event has occurred which with notice or lapse of time or both
could put the Company or any of the Banks in default) under any agreement,
indenture or instrument to which the Company or any of the Banks is a party or
by which any property or assets of the Company or any of the Banks is bound or
affected, except for possible defaults as would not, individually or in the
aggregate, have a Material Adverse Effect.
(c) Neither the Company nor any of the Banks is conducting its
business in violation of any law, ordinance or regulation of any governmental
entity, the failure to comply with which would, individually or in the
aggregate, have a Material Adverse Effect.
(d) Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws or
any listing agreement with any securities exchange or automated quotation
system, the Company is not required to obtain any consent, authorization or
order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self-regulatory agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or the
Registration Rights Agreement, in each case in accordance with the terms hereof
or thereof, or to issue and sell the Securities in accordance with the terms
hereof. Except as set forth in Schedule 3.5, all consents, authorizations,
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orders, filings and registrations which the Company is required to obtain
pursuant to the preceding sentence have been obtained or effected on or prior to
the date hereof. The Company is not in violation of the listing requirements of
Nasdaq.
3.6 SEC Documents, Financial Statements. Since December 31, 1997, the
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Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Exchange Act (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents (other than exhibits) incorporated by reference therein,
being hereinafter referred to herein as the "SEC Documents"). The Company has
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delivered to each Investor, or each Investor has had access to, true and
complete copies of the SEC Documents, except for such exhibits and incorporated
documents. As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Exchange Act or the Securities
Act, as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC Documents, at
the time they were filed with the SEC, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of their
respective dates, the consolidated financial statements of the Company included
in the SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto. Such financial statements have been prepared in
accordance with U.S. generally accepted accounting principles, consistently
applied, during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto, or (ii) in the case of
unaudited interim consolidated statements, to
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the extent they may not include footnotes or may be condensed or summary
statements) and fairly present in all material respects the consolidated
financial position of the Company as of the dates thereof and the consolidated
results of its operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit adjustments). Except
as set forth in the financial statements included in the SEC Documents, the
Company has no liabilities, contingent or otherwise, other than (x) liabilities
incurred in the ordinary course of business subsequent to date of such financial
statements, (y) liabilities of the type not required under generally accepted
accounting principles to be reflected in such financial statements, and (z)
obligations under contracts and commitments not required under generally
accepted accounting principles to be reflected in such financial statements.
Such liabilities and obligations, would not, individually or in the aggregate,
have a Material Adverse Effect.
3.7 Absence of Certain Changes. Since December 31, 1999, there has been
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no material adverse change in the assets, liabilities, business, properties,
operations, financial condition, prospects or results of operations of the
Company on a consolidated basis.
3.8 Absence of Litigation. There is no action, suit, claim, proceeding,
---------------------
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company or the Banks or any of
their officers or directors acting as such that would, individually or in the
aggregate, have a Material Adverse Effect.
3.9 Intellectual Property Rights. The Company and each of the Banks owns
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or possesses the licenses or rights to use all patents, patent applications,
patent rights, inventions, know-how, trade secrets, trademarks, trademark
applications, service marks, service names, trade names and copyrights necessary
to enable it to conduct its business as now operated (the "Intellectual
------------
Property"). There is no claim or action or proceeding pending or, to the
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Company's knowledge, threatened that challenges the right of the Company or any
of the Banks with respect to any Intellectual Property.
3.10 Tax Status. The Company has made or filed all federal, state and
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foreign income and all other tax returns, reports and declarations required by
any jurisdiction to which it is subject (unless and only to the extent that the
Company has set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith, and has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. To the knowledge
of the Company, there are no unpaid taxes in any material amount claimed to be
due by the taxing authority of any jurisdiction, and the officers of the Company
know of no basis for any such claim. The Company has not executed a waiver with
respect to the statute of limitations relating to the assessment or collection
of any foreign, federal, state or local tax. None of the Company's tax returns
is presently being audited by any taxing authority.
3.11 No Integrated Offering. Neither the Company, nor any of its
----------------------
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales in any security or solicited any offers to
buy any security under circumstances that would require
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registration under the Securities Act of the issuance of the Securities to the
Investors. The issuance of the Securities to the Investors will not be
integrated with any other issuance of the Company's securities (past, current or
future) for purposes of the Securities Act or any applicable rules of Nasdaq.
3.12 No Brokers. The Company has taken no action which would give rise to
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any claim by any person for brokerage commissions, finder's fees or similar
payments relating to this Agreement or the transactions contemplated hereby,
except for dealings with Keefe, Bruyette & Woods, Inc., whose commissions and
fees will be paid for by the Company.
3.13 Insurance. The Company and each of the Banks is insured by insurers
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of recognized financial responsibility against such losses and risks and in such
amounts as management of the Company believes to be prudent and customary in the
businesses in which the Company and the Banks are engaged.
3.14 Investment Company Status. The Company is not and upon consummation
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of the sale of the Securities will not be an "investment company," a company
controlled by an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended.
ARTICLE IV
COVENANTS
4.1 Best Efforts. Each party will use its commercially reasonable efforts
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to satisfy in a timely fashion each of the conditions to be satisfied by it
under Articles VI and VII of this Agreement.
4.2 Form D; Blue Sky Laws. The Company will file a Notice of Sale of
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Securities on Form D with respect to the Securities, as required under
Regulation D, and to provide a copy thereof to each Investor promptly after such
filing. The Company will, on or before the Closing Date, take such action as it
reasonably determines to be necessary to qualify the Securities for sale to the
Investors under this Agreement under applicable securities (or "blue sky") laws
of the states of the United States (or to obtain an exemption from such
qualification), and will provide evidence of any such action so taken to the
Investors on or prior to the date of the Closing.
4.3 Reporting Status; Eligibility to Use Form S-3. The Company's Common
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Stock is registered under Section 12 of the Exchange Act. The Company will file
with the SEC a Current Report on Form 8-K disclosing this Agreement and the
transactions contemplated hereby within 10 business days after the Closing Date.
Throughout the Registration Period (as defined in the Registration Rights
Agreement), the Company will use its commercially reasonable efforts to timely
file all reports, schedules, forms, statements and other documents required to
be filed by it with the SEC under the reporting requirements of the Exchange
Act, and the Company will not terminate its status as an issuer required to file
reports under the Exchange Act even if the Exchange Act or the rules and
regulations thereunder would permit such termination. The Company currently
meets, and will take all reasonably necessary action to continue to meet, the
"registrant eligibility" requirements set forth in the general instructions to
Form S-3.
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4.4 Expenses. The Company and each Investor is liable for, and will pay,
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its own expenses incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement and the other agreements to be executed
in connection herewith, including, without limitation, attorneys' and
consultants' fees and expenses.
4.5 Financial Information. The Company agrees to send to each Investor
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those reports which it generally sends to holders of its Common Stock until such
Investor transfers, assigns or sells all of its Securities.
4.6 Listing. On or before the tenth business day after the date of this
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Agreement, the Company will use its commercially reasonable efforts to secure
the listing of the Securities upon each national securities exchange or
automated quotation system, if any, upon which shares of Common Stock are then
listed (subject to official notice of issuance) and, so long as any Investor
owns any of the Securities, will use its commercially reasonable efforts
maintain such listing of the Securities. The Company will use its commercially
reasonable efforts to obtain and, so long as any Investor owns any of the
Securities, maintain the listing and trading of its Common Stock on Nasdaq, or
the American Stock Exchange or the New York Stock Exchange and will use its
commercially reasonable efforts to comply in all respects with the Company's
reporting, filing and other obligations under the bylaws or rules of the
National Association of Securities Dealers, Inc. and such exchanges, as
applicable.
4.7 No Integration. The Company will not make any offers or sales of any
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security (other than the Securities) under circumstances that would cause the
offering of Securities to be integrated with any other offering of securities by
the Company (i) for the purpose of any stockholder approval provision applicable
to the Company or its securities or (ii) for purposes of any registration
requirement under the Securities Act.
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4.8 Sales by Investors. Each Investor will sell any Securities sold by it
------------------
in compliance with applicable prospectus delivery requirements, if any, or
otherwise in compliance with the requirements for an exemption from registration
under the Securities Act and the rules and regulations promulgated thereunder.
No Investor will make any sale, transfer or other disposition of the Securities
in violation of federal or state securities laws.
ARTICLE V
TRANSFER AGENT INSTRUCTIONS; REMOVAL OF LEGENDS
5.1 Issuance of Certificates. The Company will instruct its transfer
------------------------
agent to issue certificates, registered in the name of each Investor or its
nominee, for the Securities. All such certificates will bear the restrictive
legend described in Section 2.7, except as otherwise specified in this Article
V. The Company will not give to its transfer agent any instruction other than as
described in this Article V and stop-transfer instructions to give effect to
Section 2.7 hereof (prior to registration of the Securities under the Securities
Act). Nothing in this Section will affect in any way the Investor's obligations
and agreement set forth in Sections 2.6 and 2.7 hereof to resell the Securities
pursuant to an effective registration statement or in compliance with an
exemption from the registration requirement of applicable securities laws.
5.2 Unrestricted Securities. If, unless otherwise required by applicable
-----------------------
state securities laws, (a) the Securities represented by a certificate have been
registered under an effective registration statement filed under the Securities
Act, (b) a holder of Securities provides the Company and the Transfer Agent with
an opinion of counsel, in form, substance and scope customary for opinions of
counsel in comparable transactions, to the effect that a public sale or transfer
of such Securities may be made without registration under the Securities Act and
such sale either has occurred or may occur without restriction on the manner of
such sale or transfer, (c) such holder provides the Company and the Transfer
Agent with reasonable assurances that such Securities can be sold under Rule
144, or (d) the Securities represented by a certificate can be sold without
restriction as to the number of securities sold under Rule 144(k), the Company
will permit the transfer of the Securities, and the Transfer Agent will issue
one or more certificates, free from any restrictive legend, in such name and in
such denominations as specified by such holder. In the event that the
restrictive legend is removed from any of the certificates for the Securities
and thereafter the effectiveness of a registration statement covering such
Securities is suspended or terminated or the Company determines that a
supplement or amendment thereto is required by applicable securities laws, then
upon a reasonable advance notice to the Investor the Company may require that
the restrictive legend be placed on any certificates for the Securities that
cannot be sold pursuant to an effective registration statement or under Rule
144, and each Investor shall cooperate in the replacement of such legend. Such
legend shall thereafter be removed when such Securities may again be sold
pursuant to an effective registration statement or Rule 144.
ARTICLE VI
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL
The obligation of the Company to issue and sell the Securities to each
Investor at the Closing is subject to the satisfaction by such Investor, on or
before the Closing Date, of each of
10
<PAGE>
the following conditions. These conditions are for the Company's sole benefit
and may be waived by the Company at any time in its sole discretion:
6.1 The Investor will have executed this Agreement and the Registration
Rights Agreement and will have delivered those agreements to the Company.
6.2 The Investor will have delivered the purchase price for the Securities
to the Company in accordance with this Agreement.
6.3 The representations and warranties of the Investor must be true and
correct in all material respects as of the Closing Date as though made at that
time (except for representations and warranties that speak as of a specific
date, which representations and warranties must be correct as of such date), and
the Investor will have performed and complied in all material respects with the
covenants and conditions required by this Agreement to be performed or complied
with by the Investor at or prior to the Closing. The Company must have received
a certificate or certificates dated as of the Closing Date and executed by the
Investor or a duly authorized officer of the Investor certifying as to the
matters contained in this Section 6.3.
6.4 No statute, rule, regulation, executive order, decree, ruling or
injunction will have been enacted, entered, promulgated or endorsed by or in any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
ARTICLE VII
CONDITIONS TO THE INVESTOR'S OBLIGATION TO PURCHASE
The obligation of each Investor hereunder to purchase the Securities from
the Company at the Closing is subject to the satisfaction, on or before the
Closing Date, of each of the following conditions. These conditions are for
each Investor's respective benefit and may be waived by any Investor at any time
in its sole discretion:
7.1 The Company will have executed this Agreement and the Registration
Rights Agreement and will have delivered those Agreements to the Investor.
7.2 The Company will have delivered to the Investors duly executed
certificates representing the Securities in the amounts specified in Section
1.1 hereof.
7.3 The representations and warranties of the Company must be true and
correct in all material respects as of the Closing as though made at that time
(except for representations and warranties that speak as of a specific date,
which representations and warranties must be true and correct as of such date)
and the Company must have performed and complied in all material respects with
the covenants and conditions required by this Agreement to be performed or
complied with by the Company at or prior to the Closing. The Investor must have
received a certificate or certificates dated as of the Closing Date and executed
by the Chief Executive Officer or the Chief Financial Officer of the Company
certifying as to the matters contained in this Section 7.3 and as to such other
matters as may be reasonably requested by such Investor, including, but not
limited to, the Company's Articles of Incorporation, as amended, By-laws, as
11
<PAGE>
amended, Board of Directors' resolutions relating to the transactions
contemplated hereby and the incumbency and signatures of each of the officers of
the Company who may execute on behalf of the Company any document delivered at
the Closing.
7.4 No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction will have been enacted, entered, promulgated or endorsed by
or in any court or governmental authority of competent jurisdiction or any self-
regulatory organization having authority over the matters contemplated hereby
which prohibits the consummation of any of the transactions contemplated by this
Agreement.
7.5 Trading and listing of the Common Stock on Nasdaq must not have been
suspended by the SEC or Nasdaq.
7.6 The Investors will have received an opinion of the Company's general
counsel, dated as of the Closing Date, in form, scope and substance reasonably
satisfactory to the Investors and in substantially the form attached hereto as
Exhibit B.
- ---------
7.7 The Company shall have delivered evidence reasonably satisfactory to
the Investors that the Company's transfer agent has agreed to act in accordance
with irrevocable instructions in the form attached hereto as Exhibit C.
---------
ARTICLE VIII
DEFINITIONS
8.1 "Banks" means Bay Area Bank, Bay Bank of Commerce, Cupertino National
Bank, Golden Gate Bank, Mt. Diablo National Bank, Mid-Peninsula Bank and
Peninsula Bank of Commerce.
8.2 "Closing" means the closing of the purchase and sale of the Securities
under this Agreement.
8.3 "Closing Date" has the meaning set forth in Section 1.3.
8.4 "Common Stock" means the common stock, no par value per share, of the
Company.
8.5 "Company" means Greater Bay Bancorp.
8.6 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
8.7 "Investors" means the investors whose names are set forth on the
signature pages of this Agreement.
8.8 "Material Adverse Effect" means a material adverse effect on (a) the
business, operations, assets or financial condition of the Company on a
consolidated basis or (b) the ability of the Company to perform its obligations
pursuant to the transactions contemplated by this Agreement or under the
agreements or instruments to be entered into or filed in connection herewith.
12
<PAGE>
8.9 "Nasdaq" means the Nasdaq National Market System.
8.10 "Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Agreement and among the parties to this
Agreement, in the form attached hereto as Exhibit A.
---------
8.11 "Regulation D" means Regulation D as promulgated under by the SEC
under the Securities Act.
8.12 "Rule 144" and "Rule 144(k)" mean Rule 144 and Rule 144(k),
respectively, promulgated under the Securities Act, or any successor rule.
8.13 "SEC" means the United States Securities and Exchange Commission.
8.14 "SEC Documents" has the meaning set forth in Section 3.6.
8.15 "Securities" means the Common Stock sold pursuant to this Agreement.
8.16 "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar successor statute.
ARTICLE IX
GOVERNING LAW; MISCELLANEOUS
9.1 Governing Law; Jurisdiction. This Agreement will be governed by and
---------------------------
interpreted in accordance with the laws of the State of California without
regard to the principles of conflict of laws. The parties hereto hereby submit
to the exclusive jurisdiction of the United States federal and state courts
located in the State of California with respect to any dispute arising under
this Agreement, the agreements entered into in connection herewith or the
transactions contemplated hereby or thereby.
9.2 Counterparts; Signatures by Facsimile. This Agreement may be
-------------------------------------
executed in two or more counterparts, all of which are considered one and the
same agreement and will become effective when counterparts have been signed by
each party and delivered to the other parties. This Agreement, once executed by
a party, may be delivered to the other parties hereto by facsimile transmission
of a copy of this Agreement bearing the signature of the party so delivering
this Agreement. In the event any signature is delivered by facsimile
transmission, the party using such means of delivery shall cause the manually
executed pages to be physically delivered to the other party within five
business days of the execution hereof.
9.3 Headings. The headings of this Agreement are for convenience of
--------
reference only, are not part of this Agreement and do not affect its
interpretation.
9.4 Severability. If any provision of this Agreement is invalid or
------------
unenforceable under any applicable statute or rule of law, then such provision
will be deemed modified in order to conform with such statute or rule of law.
Any provision hereof that may prove invalid or
13
<PAGE>
unenforceable under any law will not affect the validity or enforceability of
any other provision hereof.
9.5 Entire Agreement; Amendments. This Agreement and the Registration
----------------------------
Rights Agreement (including all schedules and exhibits thereto) constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein. This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof. No provision of this Agreement
may be waived or amended other than by an instrument in writing signed by the
party to be charged with enforcement.
9.6 Notices. Any notices required or permitted to be given under the
-------
terms of this Agreement must be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier (including a recognized
overnight delivery service) or by facsimile and will be effective five days
after being placed in the mail, if mailed by regular U.S. mail, or upon receipt,
if delivered personally, by courier (including a recognized overnight delivery
service) or by facsimile, in each case addressed to a party. The addresses for
such communications are:
If to the Company: Greater Bay Bancorp
2860 West Bayshore Road
Palo Alto, California 94303
Attention: Steven C. Smith
Facsimile: (415) 494-9220
With a copy to: Greater Bay Bancorp
400 Emerson Street, 3rd Floor
Palo Alto, California 94301
Attention: Linda M. Iannone, Esq.
Facsimile: (650) 473-9419
and
Manatt, Phelps & Phillips, LLP
11355 W. Olympic Boulevard
Los Angeles, CA 90064
Attention: William T. Quicksilver, Esq.
Facsimile: (310) 312-4224
If to an Investor: To the address set forth immediately below such
Investor's name on the signature pages hereto.
Each party will provide written notice to the other parties of any change
in its address.
9.7 Successors and Assigns. This Agreement is binding upon and inures to
----------------------
the benefit of the parties and their successors and assigns. The Company will
not assign this Agreement or any rights or obligations hereunder without the
prior written consent of the Investors, and no Investor may assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Company. Notwithstanding the foregoing, an Investor may assign
all or
14
<PAGE>
part of its rights and obligations hereunder to any of its "affiliates," as that
term is defined under the Securities Act, without the consent of the Company so
long as the affiliate is an accredited investor (within the meaning of
Regulation D under the Securities Act) and agrees in writing to be bound by this
Agreement.
9.8 Third-Party Beneficiaries. This Agreement is intended for the benefit
-------------------------
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
9.9 Survival. The representations and warranties of the Company and the
--------
agreements and covenants set forth herein will survive the Closing hereunder.
The Company makes no representations or warranties in any oral or written
information provided to Investors, other than the representations and warranties
included herein.
9.10 Further Assurances. Each party will do and perform, or cause to be
------------------
done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as
another party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
9.11 No Strict Construction. The language used in this Agreement is
----------------------
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
9.12 Equitable Relief. Each party acknowledges that a breach by it or its
----------------
obligations hereunder will cause irreparable harm to the other parties by
vitiating the intent and purposes of the transactions contemplated hereby.
Accordingly, each party acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach of
threatened by such party of the provisions of this Agreement, that the other
party shall be entitled, in addition to all other available remedies, to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
[The remainder of this page has been intentionally left blank]
15
<PAGE>
IN WITNESS WHEREOF, the undersigned Investors and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
GREATER BAY BANCORP
By: /s/ Steven C. Smith
-------------------
Name: Steven C. Smith
Title: Executive Vice President,
Chief Administrative Officer
and Chief Financial Officer
[Signatures continued on next page]
16
<PAGE>
Investor: FRANKLIN SMALLCAP GROWTH FUND
--------
By: /s/ Murray L. Simpson
--------------------------------
-------------------------------------
Name: Murray L. Simpson
------------------------------
Title Vice President
------------------------------
Shares of Common Stock: 201,200
-------------
Aggregate Purchase Amount: $2,944,400
----------
Investor: Emerging Small Company Trust
--------
By: /s/ Murray L. Simpson
--------------------------------
-------------------------------------
Name: Murray L. Simpson
------------------------------
Title Vice President
------------------------------
Shares of Common Stock: 7,900
-------------
Aggregate Purchase Amount: $292,300
----------
Investor: U.S. SMALLCAP FUND
--------
By: /s/ Murray L. Simpson
--------------------------------
-------------------------------------
Name: Murray L. Simpson
------------------------------
Title Vice President
------------------------------
Shares of Common Stock: 1,700
-------------
Aggregate Purchase Amount: $62,900
----------
Investor: FRANKLIN SMALLCAP INVESTMENTS FUND
--------
By: /s/ Murray L. Simpson
--------------------------------
-------------------------------------
Name: Murray L. Simpson
------------------------------
Title Vice President
------------------------------
Shares of Common Stock: 1,700
-------------
Aggregate Purchase Amount: $62,900
----------
Investor: MERRILL LYNCH GLOBAL FINANCIAL SERVICES
--------
PORTFOLIO, INC.
By: /s/ James Ellman
--------------------------------
-------------------------------------
Name: James Ellman
------------------------------
Title Vice President and Portfolio Manager
------------------------------------
Shares of Common Stock: 7,000
-------------
Aggregate Purchase Amount: $
----------
17
<PAGE>
Investor: MERRILL LYNCH EQUITY CONVERTIBLE SERIES-
--------
FINANCIAL SERVICES PORTFOLIO
By: /s/ James Ellman
--------------------------------
-------------------------------------
Name: James Ellman
------------------------------
Title Portfolio Manager
------------------------------
Shares of Common Stock: 15,500
-------------
Aggregate Purchase Amount: $
---------
Investor: LAWRENCE OFFSHORE PARTNERS, LLC
--------
By: /s/ Lawrence Garshofsky
----------------------------
-------------------------------------
Name: Lawrence Garshofsky
------------------------------
Title: Manager
------------------------------
Shares of Common Stock: 2,500
-------------
Aggregate Purchase Amount: $92,500
----------
Investor: LAWRENCE PARTNERS, LP
--------
By: /s/ Lawrence Garshofsky
--------------------------------
-------------------------------------
Name: Lawrence Garshofsky
------------------------------
Title: Manager
------------------------------
Shares of Common Stock: 2,500
-------------
Aggregate Purchase Amount: $92,500
----------
Investor: SUNOVA LONG-TERM OPPORTUNITY FUND, LP
--------
By: /s/ Matthew Byrnes
--------------------------------
-------------------------------------
Name: Matthew Byrnes
------------------------------
Title: Managing Partner
------------------------------
Shares of Common Stock: 9,000
-------------
Aggregate Purchase Amount: $333,000
----------
Investor: MALTA OFFSHORE, LTD.
--------
SANDLER O'NEILL ASSET MANAGEMENT
By: /s/ Terry Maltese
--------------------------------
-------------------------------------
Name: Terry Maltese
------------------------------
Title: President
------------------------------
Shares of Common Stock: 900
-------------
Aggregate Purchase Amount: $33,300
----------
18
<PAGE>
Investor: MALTA HEDGE FUND II, LP
--------
SANDLER O'NEILL ASSET MANAGEMENT
By: /s/ Terry Maltese
--------------------------------
-------------------------------------
Name: Terry Maltese
------------------------------
Title President
------------------------------
Shares of Common Stock: 3,600
--------------
Aggregate Purchase Amount: $133,200
-----------
Investor: MALTA HEDGE FUND, LP
--------
SANDLER O'NEILL ASSET MANAGEMENT
By: /s/ Terry Maltese
--------------------------------
-------------------------------------
Name: Terry Maltese
------------------------------
Title: President
------------------------------
Shares of Common Stock: 900
-------------
Aggregate Purchase Amount: $33,300
----------
Investor: MALTA PARTNERS II, LP
--------
SANDLER O'NEILL ASSET MANAGEMENT
By: /s/ Terry Maltese
--------------------------------
-------------------------------------
Name: Terry Maltese
------------------------------
Title: President
------------------------------
Shares of Common Stock: 2,700
-------------
Aggregate Purchase Amount: $99,900
-----------
Investor: MALTA PARTNERS, LP
--------
SANDLER O'NEILL ASSET MANAGEMENT
By: /s/ Terry Maltese
--------------------------------
-------------------------------------
Name: Terry Maltese
------------------------------
Title: President
------------------------------
Shares of Common Stock: 900
-------------
Aggregate Purchase Amount: $33,300
----------
Investor: NORTHAVEN PARTNERS, L.P.
--------
By: /s/ Paul Burke
--------------------------------
-------------------------------------
Name: Paul Burke
------------------------------
Title: Member of General Partner
------------------------------
Shares of Common Stock: 4,100
-------------
Aggregate Purchase Amount: $151,700
----------
19
<PAGE>
Investor: NORTHAVEN PARTNERS II, L.P.
--------
By: /s/ Paul Burke
---------------------------------
-------------------------------------
Name: Paul Burke
-------------------------------
Title Member of GP
-------------------------------
Shares of Common Stock: 6,900
-------------
Aggregate Purchase Amount: $255,300
---------
Investor: NORTHAVEN PARTNERS, III, L.P.
--------
By: /s/ Paul Burke
---------------------------------
-------------------------------------
Name: Paul Burke
-------------------------------
Title Member of GP
-------------------------------
Shares of Common Stock: 5,000
-------------
Aggregate Purchase Amount: $185,000
---------
Investor: BANC FUND V, L.P.
--------
By: /s/ Charles J. Moore
---------------------------------
-------------------------------------
Name: Charles J. Moore
-------------------------------
Title Member
-------------------------------
Shares of Common Stock: 10,000
-------------
Aggregate Purchase Amount: $370,000
---------
Investor: BANK FUND III TRUST
--------
By: /s/ Charles J. Moore
---------------------------------
-------------------------------------
Name: Charles J. Moore
-------------------------------
Title Member
-------------------------------
Shares of Common Stock: 7,784
-------------
Aggregate Purchase Amount: $288,008
---------
Investor: BANC FUND III, L.P.
--------
By: /s/ Charles J. Moore
--------------------------------
-------------------------------------
Name: Charles J. Moore
------------------------------
Title: Member
------------------------------
Shares of Common Stock: 2,540
-------------
Aggregate Purchase Amount: $93,980
----------
Investor: MUTUAL FINANCIAL SERVICES FUND
--------
By: /s/ Raymond Garea
---------------------------------
-------------------------------------
Name: Raymond Garea
------------------------------
Title: Senior Vice President
------------------------------
Shares of Common Stock: 20,000
-------------
Aggregate Purchase Amount: $740,000
----------
Investor: NICHOLAS-APPLEGATE PACIFIC CENTURY
--------
TRUST #2 SMALL
BY: /s/ Scott A. Long
---------------------------------
-------------------------------------
Name: Scott A. Long
------------------------------
Title: Head of Global Operations
------------------------------
Shares of Common Stock: 9,600
-------------
Aggregate Purchase Amount $355,200
-----------
Investor: NICHOLAS-APPLEGATE SMALL CAP VALUE
--------
BY: /s/ Scott A. Long
---------------------------------
-------------------------------------
Name: Scott A. Long
------------------------------
Title: Head of Global Operations
------------------------------
Shares of Common Stock: 300
-------------
Aggregate Purchase Amount $11,100
-----------
Investor: NICHOLAS-APPLEGATE CORNERSTONE/SHEPERD
VALUE
BY: /s/ Scott A. Long
---------------------------------
-------------------------------------
Name: Scott A. Long
------------------------------
Title: Head of Global Operations
------------------------------
Shares of Common Stock: 100
-------------
Aggregate Purchase Amount $3,700
-----------
<PAGE>
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of March 23, 2000 (this
"Agreement"), is made by and among Greater Bay Bancorp., a California
- ----------
corporation (the "Company"), and the investors named on the signature pages
-------
hereto (the "Initial Investors").
-----------------
RECITALS:
A. In connection with the Securities Purchase Agreement dated March 22,
2000 between the Initial Investors and the Company (the "Purchase Agreement"),
------------------
the Company has agreed, upon the terms and subject to the conditions of the
Purchase Agreement, to issue and sell to the Initial Investors 324,324 shares of
the Company's Common Stock (the "Common Shares").
-------------
B. In order to induce the Initial Investors to execute and deliver the
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act and applicable state securities laws with
respect to the Common Shares.
In consideration of the premises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Initial Investors hereby agree as
follows:
ARTCILE 1
DEFINITIONS
Capitalized terms used and not otherwise defined herein have the respective
meanings given them set forth in the Purchase Agreement. In addition, as used
in this Agreement, the following terms have the following meanings:
1.1 "Common Shares" means the shares of Common Stock sold pursuant to the
-------------
Purchase Agreement.
1.2 "Investors" means the Initial Investors and any of their transferees or
---------
assignees who agree to become bound by the provisions of this Agreement in
accordance with Article IX hereof.
1.3 "Registrable Securities" means the Common Shares sold pursuant to the
----------------------
Purchase Agreement and any shares of capital stock issued or issuable from time
to time (with any adjustments) in exchange for or otherwise with respect to the
Common Shares.
1.4 "Registration Period" means the period between the date of this
-------------------
Agreement and the earlier of (i) the date on which all of the Registrable
Securities have been sold and no further Registrable Securities may be issued in
the future, (ii) the date on which all the Registrable Securities (in the
opinion of the Investors' counsel) may be immediately sold without registration
and without limitation as to volume by each holder thereof as to the number of
Registrable
1
<PAGE>
Securities to be sold, pursuant to Rule 144 or otherwise, or (iii) the second
anniversary of the date of this Agreement.
1.5 "Registration Statement" means a Registration Statement of the Company
----------------------
filed under the Securities Act.
1.6 The terms "register," "registered," and "registration" refer to a
-------- ---------- ------------
registration effected by preparing and filing a Registration Statement or
statements in compliance with the Securities Act and pursuant to Rule 415 and
the declaration or ordering of effectiveness of such Registration Statement by
the SEC.
1.7 "Rule 415" means Rule 415 under the Securities Act, or any successor
--------
Rule providing for offering securities on a continuous basis, and applicable
rules and regulations thereunder.
ARTICLE II
REGISTRATION
2.1 Mandatory Registration. The Company will use its commercially
----------------------
reasonable efforts to file with the SEC a Registration Statement on Form S-3
registering the Registrable Securities and no other securities for resale within
30 business days after the Closing Date of the purchase of the Common Shares
under the Purchase Agreement. If Form S-3 is not available at that time, then
the Company will file a Registration Statement on such form as is then available
to effect a registration of the Registrable Securities, subject to the consent
of the Initial Investors, which consent will not be unreasonably withheld.
2.2 Effectiveness of the Registration Statement. The Company will use its
-------------------------------------------
commercially reasonable efforts to cause the Registration Statement to be
declared effective by the SEC as soon as practicable after filing, and in any
event no later than the 90th day after the Closing Date (the "Required Effective
------------------
Date"). However, so long as the Company filed the Registration Statement within
- ----
30 business days after the Closing Date, if the Registration Statement receives
SEC review, then the Required Effective Date will be the 120th day after the
Closing Date. The Company's commercially reasonable efforts will include, but
not be limited to, promptly responding to all comments received from the staff
of the SEC. If the Company receives notification from the SEC that the
Registration Statement will receive no action or review from the SEC, then the
Company will, subject to its rights under Section 3.5, cause the Registration
Statement to become effective within five business days after such SEC
notification. Once the Registration Statement is declared effective by the SEC,
the Company will use its commercially reasonable efforts to cause the
Registration Statement to remain effective throughout the Registration Period,
subject to the Company's rights under Section 3.5.
2
<PAGE>
2.3 Piggyback Registrations.
-----------------------------
(a) If, at any time prior to the expiration of the Registration Period,
a Registration Statement is not effective with respect to all of the Registrable
Securities and the Company decides to register any of its Common Stock for its
own account or for the account of others, then the Company will promptly give
the Investors written notice thereof and will use its commercially reasonable
efforts to include in such registration all or any part of the Registrable
Securities requested by such Investors to be included therein (excluding any
Registrable Securities previously included in a Registration Statement). This
requirement does not apply to Company registrations on Form S-3, Form S-4 or
Form S-8 or their equivalents relating to (i) Common Stock to be issued solely
in connection with a dividend reinvestment plan or an acquisition of any entity
or business or (ii) Common Stock issuable in connection with stock option or
other employee benefit plans. Each Investor must give its request for
registration under this paragraph to the Company in writing within 15 days after
receipt from the Company of notice of such pending registration. If the
registration for which the Company gives notice is a public offering involving
an underwriting, the Company will so advise the Investors as part of the above-
described written notice. In that event, if the managing underwriter(s) of the
public offering impose a limitation on the number of shares of Common Stock that
may be included in the Registration Statement because, in such underwriter(s)'
judgment, such limitation would be necessary to effect an orderly public
distribution, then the Company will be obligated to include only such limited
portion, if any, of the Registrable Securities with respect to which such
Investors have requested inclusion hereunder. Any exclusion of Registrable
Securities will be made pro rata among all holders of the Company's securities
seeking to include shares of Common Stock in proportion to the number of shares
of Common Stock sought to be included by those holders. However, the Company
will not exclude any Registrable Securities unless the Company has first
excluded all outstanding securities the holders of which are not entitled by
right to inclusion of securities in such Registration Statement or are not
entitled pro rata inclusion with the Registrable Securities. No Investor may
participate in any distribution of Common Stock under this Section 2.4 unless
such Investor (i) agrees to sell such Investor's Registrable Securities on the
basis provided in any underwriting arrangements or other plan of distribution
approved by the Company in its sole discretion, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements or other plan of distribution, and (iii) agrees to pay its pro rata
share of all underwriting discounts and commissions and other fees and expenses
of investment bankers and any manager or managers of such underwriting, and
legal expenses of the underwriter, applicable with respect to its Registrable
Securities, in each case to the extent not payable by the Company under the
terms of this Agreement.
(b) No right to registration of Registrable Securities under this
Section 2.3 limits in any way the registration required under Section 2.1 above.
The obligations of the Company under this Section 2.3 expire upon the earlier of
(i) the effectiveness of the Registration Statement filed pursuant to Section
2.1 above, (ii) after the Company has afforded the opportunity for the Investors
to exercise registration rights under this Section 2.3 for two registrations
(provided, however, that any Investor that has had any Registrable Securities
excluded from any Registration Statement in accordance with this Section 2.3 may
include in any additional Registration Statement filed by the Company the
Registrable Securities so excluded), (iii) when all of the Registrable
Securities held by any Investor may be sold by such Investor under Rule 144
3
<PAGE>
without being subject to any volume restrictions, or (iv) the second anniversary
of the date of this Agreement.
2.4 Eligibility to use Form S-3. The Company represents and warrants that
---------------------------
it meets the requirements for the use of Form S-3 for registration of the sale
by the Investors of the Registrable Securities. The Company will use its
commercially reasonable efforts to file all reports required to be filed by the
Company with the SEC in a timely manner so as to preserve its eligibility for
the use of Form S-3.
ARTICLE III
ADDITIONAL OBLIGATIONS OF THE COMPANY
3.1 Continued Effectiveness of Registration Statement. Subject to the
-------------------------------------------------
Company's rights under Section 3.5, the Company will keep the Registration
Statement covering the Registrable Securities effective under Rule 415 at all
times during the Registration Period.
3.2 Accuracy of Registration Statement. Subject to the Company's rights
----------------------------------
under Section 3.5, any Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein) filed by the Company
covering Registrable Securities will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading. Subject to the limitations set forth in Section
3.5, the Company will prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to permit sales pursuant to the Registration Statement at all times
during the Registration Period, and, during such period, will comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration Statement
until the termination of the Registration Period, or if earlier, until such time
as all of such Registrable Securities have been disposed of in accordance with
the intended methods of disposition by the seller or sellers thereof as set
forth in the Registration Statement.
3.3 Furnishing Documentation. The Company will furnish to each Investor
----------------------------------
whose Registrable Securities are included in a Registration Statement, and to
its legal counsel, (a) promptly after each document is prepared and publicly
distributed, filed with the SEC or received by the Company, one copy of any
Registration Statement filed pursuant to this Agreement and any amendments
thereto, each preliminary prospectus and final prospectus and each amendment or
supplement thereto; and, in the case of a Registration Statement filed under
Section 2.1 above, each letter written by or on behalf of the Company to the SEC
and each item of correspondence from the SEC or the staff of the SEC, in each
case relating to such Registration Statement (other than any portion of any item
thereof which contains information for which the Company has sought confidential
treatment); and (b) a number of copies of a prospectus, including a preliminary
prospectus, and all amendments and supplements thereto, and such other documents
as the Investor may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by the Investor. The Company will immediately
notify by facsimile each Investor whose Registrable Securities are included in
any Registration Statement of the effectiveness of the Registration Statement
and any post-effective amendment.
4
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3.4 Additional Obligations. The Company will use its commercially
----------------------
reasonable efforts to (a) register and qualify the Registrable Securities
covered by a Registration Statement under such other securities or blue sky laws
of such jurisdictions as each Investor who holds (or has the right to hold)
Registrable Securities being offered reasonably requests, (b) prepare and file
in those jurisdictions any amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain their effectiveness during the Registration Period, (c) take any other
actions necessary to maintain such registrations and qualifications in effect at
all times during the Registration Period, and (d) take any other actions
reasonably necessary or advisable to qualify the Registrable Securities for sale
in such jurisdictions. Notwithstanding the foregoing, the Company is not
required, in connection with such obligations, to (i) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3.4, (ii) subject itself to general taxation in any such
jurisdiction, (iii) file a general consent to service of process in any such
jurisdiction, (iv) provide any undertakings that cause material expense or
burden to the Company, or (v) make any change in its articles of incorporation
or bylaws, which in each case the Board of Directors of the Company determines
to be contrary to the best interests of the Company and its shareholders.
3.5 Suspension of Registration.
--------------------------
(a) The Company will notify (by telephone or electronic mail and also
by facsimile or reputable overnight courier) each Investor who holds Registrable
Securities being sold pursuant to a Registration Statement of the happening of
any event of which the Company has knowledge as a result of which the prospectus
included in the Registration Statement as then in effect includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company will make
such notification as promptly as practicable after the Company becomes aware of
the event (but in no event, without the prior written consent of the Investor,
will the Company disclose to any Investor any of the facts or circumstances
regarding the event), will promptly (but in no event more than 15 business days)
prepare a supplement or amendment to the Registration Statement to correct such
untrue statement or omission, and will deliver a number of copies of such
supplement or amendment to each Investor as such Investor may reasonably
request.
(b) Notwithstanding anything to the contrary contained in this
Agreement, if in the good faith judgment of the Company resales of Registrable
Securities made pursuant to the Registration Statement might require disclosure
of material information that (i) might interfere with or affect any financing,
acquisition, or other significant transaction being contemplated by the Company,
whether or not a final determination has been made to undertake such
transaction, or (ii) the Company has a bona fide business purpose for preserving
as confidential, and, with respect to each of (i) and (ii) that the Company is
not otherwise required by applicable securities laws or regulations to disclose,
the Company will have the right to delay the effectiveness of the Registration
Statement or suspend the use of the Registration Statement for a period of not
more than 30 consecutive days and for no more than 120 days in the aggregate
during any twelve month period; provided, however, such 30 day period may upon
notice to the Investors be extended for up to an additional 30 days if such
additional time is reasonably necessary to complete financial statements or
reports or other disclosure materials reasonably necessary to be disclosed in
the Registration Statement.
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(c) Subject to the Company's rights under this Section 3, the Company
will use its commercially reasonable efforts to prevent the issuance of any stop
order or other suspension of effectiveness of a Registration Statement and, if
such an order is issued, will use its commercially reasonable efforts to obtain
the withdrawal of such order at the earliest possible time and to notify each
Investor that holds Registrable Securities being sold of the issuance of such
order and the resolution thereof.
(d) If the use of the Registration Statement is suspended by the
Company, the Company will promptly give notice of the suspension to all
Investors whose securities are covered by the Registration Statement, and will
promptly notify each such Investor as soon as the use of the Registration
Statement may be resumed.
3.6 Review by the Investors. The Company will permit a single firm of legal
-----------------------
counsel, designated by the Investors who hold a majority in interest of the
Registrable Securities being sold pursuant to a Registration Statement, to
review the Registration Statement and all amendments and supplements thereto (as
well as all requests for acceleration or effectiveness thereof) a reasonable
period of time prior to their filing with the SEC, and will not file any
document in a form to which such counsel reasonably objects, unless otherwise
required by law in the opinion of the Company's counsel. The sections of any
such Registration Statement including information with respect to the Investors,
the Investors' beneficial ownership of securities of the Company or the
Investors' intended method of disposition of Registrable Securities must conform
to the information provided to the Company by each of the Investors.
3.7 Information. The Company will make generally available to its security
-----------
holders as soon as practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in a form complying with the
provisions of Rule 158 under the Securities Act) covering a 12-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
3.8 Due Diligence; Confidentiality.
------------------------------
(a) The Company will make available for inspection by any Investor
whose Registrable Securities are being sold pursuant to a Registration Statement
and one firm of attorneys retained by the Investors (collectively, the
"Inspectors"), all pertinent financial and other records, pertinent corporate
----------
documents and properties of the Company (collectively, the "Records"), as each
-------
Inspector reasonably deems necessary to enable the Inspector to exercise its due
diligence responsibility. The Company will cause its officers, directors and
employees to supply all information that any Inspector may reasonably request
for purposes of performing such due diligence.
(b) Each Inspector will hold in confidence, and will not make any
disclosure (except to an Investor) of, any Records or other information that the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court or government body of competent jurisdiction, or (iii)
the information in such Records has been made generally available to the public
other than by disclosure in violation of
6
<PAGE>
this or any other agreement. The Company is not required to disclose any
confidential information in the Records to any Inspector unless and until such
Inspector has entered into a confidentiality agreement (in form and substance
satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3.8. Each Investor will, upon learning
that disclosure of Records containing confidential information is sought in or
by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, the Records deemed confidential. Nothing herein will be
deemed to limit the Investor's ability to sell Registrable Securities in a
manner that is otherwise consistent with applicable laws and regulations.
(c) The Company will hold in confidence, and will not make any
disclosure of, information concerning an Investor provided to the Company under
this Agreement unless (i) disclosure of such information is necessary to comply
with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration
Statement, (iii) the release of such information is ordered pursuant to a
subpoena or other order from a court or governmental body of competent
jurisdiction, (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement, or (v) such Investor consents to the form and content of any such
disclosure. If the Company learns that disclosure of such information concerning
an Investor is sought in or by a court or governmental body of competent
jurisdiction or through other means, the Company will give prompt notice to such
Investor prior to making such disclosure and allow such Investor, at its
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, such information.
3.9 Listing. The Company will use its commercially reasonable efforts (i)
-------
to cause all of the Registrable Securities covered by each Registration
Statement to be listed on each national securities exchange on which securities
of the same class or series issued by the Company are then listed, if any, if
the listing of such Registrable Securities is then permitted under the rules of
such exchange, or (ii) to the extent the securities of the same class or series
are not then listed on a national securities exchange, to secure the designation
and quotation of all of the Registrable Securities covered by each Registration
Statement on Nasdaq and, without limiting the generality of the foregoing,
arrange for at least two market makers to register with the National Association
of Securities Dealers, Inc. as such with respect to such Registrable Securities.
3.10 Transfer Agent; Registrar. The Company will provide a transfer agent
-------------------------
and registrar, which may be a single entity, for the Registrable Securities not
later than the effective date of the Registration Statement.
3.11 Share Certificates. The Company will cooperate with the Investors who
------------------
hold Registrable Securities being sold to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing
Registrable Securities to be offered pursuant to a Registration Statement and
will enable such certificates to be in such denominations or amounts as the case
may be, and registered in such names as the Investors may reasonably request,
all in accordance with Article V of the Purchase Agreement.
7
<PAGE>
3.12 Plan of Distribution. At the request of the Investors holding a
--------------------
majority in interest of the Registrable Securities registered pursuant to a
Registration Statement, the Company will promptly prepare and file with the SEC
such amendments (including post-effective amendments) and supplements to the
Registration Statement, and the prospectus used in connection with the
Registration Statement, as may be necessary in order to change the plan of
distribution set forth in such Registration Statement. Notwithstanding the
foregoing, each Investor agrees that the Investors may not change the plan of
distribution to involve an underwritten offering.
3.13 Securities Laws Compliance. The Company will comply with all
--------------------------
applicable laws related to any Registration Statement relating to the sale of
Registrable Securities and to offering and sale of securities and with all
applicable rules and regulations of governmental authorities in connection
therewith (including, without limitation, the Securities Act, the Exchange Act
and the rules and regulations promulgated by the SEC).
3.14 Further Assurances. Subject to the limitations set forth in the last
------------------
sentence of Section 3.12, the Company will take all other reasonable actions as
any Investor may reasonably request to expedite and facilitate disposition by
such Investor of the Registrable Securities pursuant to the Registration
Statement.
3.15 No Additional Selling Shareholders. The Company will not, and will not
----------------------------------
agree to, allow the holders of any securities of the Company to include any of
their securities in any Registration Statement under Section 2.1 hereof, or any
amendment or supplement thereto under Section 3.2 hereof, without the consent of
the holders of a majority in interest of the Registrable Securities.
ARTICLE IV
OBLIGATIONS OF THE INVESTORS
4.1 Investor Information. As a condition to the obligations of the Company
--------------------
to complete any registration pursuant to this Agreement with respect to the
Registrable Securities of each Investor, such Investor will furnish to the
Company such information regarding itself, the Registrable Securities held by it
and the intended method of disposition of the Registrable Securities held by it
as is reasonably required by the Company to effect the registration of the
Registrable Securities. At least five (5) business days prior to the first
anticipated filing date of a Registration Statement for any registration under
this Agreement, the Company will notify each Investor of the information the
Company requires from that Investor if the Investor elects to have any of its
Registrable Securities included in the Registration Statement. If, within three
business days prior to the filing date, the Company has not received the
requested information from an Investor, then the Company may file the
Registration Statement without including Registrable Securities of that
Investor.
4.2 Further Assurances. Each Investor will cooperate with the Company, as
------------------
reasonably requested by the Company, in connection with the preparation and
filing of any Registration Statement hereunder, unless such Investor has
notified the Company in writing of such Investor's election to exclude all of
such Investor's Registrable Securities from the Registration Statement.
8
<PAGE>
4.3 Suspension of Transactions. Upon receipt of any notice from the Company
--------------------------
of the happening of any event of the kind described in Section 3.5, each
Investor agrees that it (a) will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities (b) will not disclose to any other person that its use of
the Registration Statement has been suspended and (c) will not, either directly
or indirectly, engage in any transaction involving any of the securities of the
Company, until with respect to each of (a), (b) and (c), it receives copies of
the supplemented or amended prospectus contemplated by Section 3.5 or is
otherwise notified by the Company that the use of the Registration Statement may
be resumed. If so directed by the Company, each Investor will deliver to the
Company (at the expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in the Investor's possession (other than
a limited number of file copies) of the prospectus covering such Registrable
Securities that is current at the time of receipt of such notice.
ARTICLE V
EXPENSES OF REGISTRATION
The Company will bear all reasonable expenses, other than underwriting
discounts and commissions, and transfer taxes, if any, incurred in connection
with registrations, filings or qualifications pursuant to Article II of this
Agreement, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, the fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one firm
of legal counsel selected by the Initial Investors pursuant to Section 3.6
hereof.
ARTICLE VI
INDEMNIFICATION
In the event that any Registrable Securities are included in a Registration
Statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify and hold
harmless each Investor that holds such Registrable Securities, any directors or
officers of such Investor and any person who controls such Investor within the
meaning of the Securities Act or the Exchange Act (each, an "Indemnified
-----------
Person") against any losses, claims, damages, expenses or liabilities (joint or
- ------
several) (collectively, and together with actions, proceedings or inquiries by
any regulatory or self-regulatory organization, whether commenced or threatened
in respect thereof, "Claims") to which any of them become subject under the
------
Securities Act, the Exchange Act or otherwise, insofar as such Claims arise out
of or are based upon any of the following statements, omissions or violations in
a Registration Statement filed pursuant to this Agreement, any post-effective
amendment thereof or any prospectus included therein: (a) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereof or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (b) any untrue
statement or alleged untrue statement of a material fact contained in the
prospectus (as it may be amended or supplemented) or the omission or alleged
omission to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the statements therein
were made, not misleading, or (c) any violation or alleged violation
9
<PAGE>
by the Company of the Securities Act, the Exchange Act or any other law,
including without limitation any state securities law or any rule or regulation
thereunder (the matters in the foregoing clauses (a) through (c) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
----------
6.3 with respect to the number of legal counsel, the Company will reimburse the
Investors and each such other Indemnified Person, promptly as such expenses are
incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6.1 (i) does not apply to a
Claim arising out of or based upon a Violation that occurs in reliance upon and
in conformity with information furnished in writing to the Company by any
Indemnified Person expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement thereto, (ii)
does not apply to amounts paid in settlement of any Claim if such settlement is
made without the prior written consent of the Company, which consent will not be
unreasonably withheld, and (iii) with respect to any prospectus, does not apply
and shall not inure to the benefit of any Indemnified Person if the untrue
statement or omission of material fact contained in such prospectus was
corrected on a timely basis and the prospectus, as then amended or supplemented,
if such corrected prospectus was timely made available by the Company pursuant
to Section 3.3 hereof, and the Indemnified Person was promptly advised in
writing not to use the incorrect prospectus prior to the use giving rise to a
Violation and such Indemnified Person, notwithstanding such advice, used it.
This indemnity obligation will remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Persons and will survive
the transfer of the Registrable Securities by the Investors under Article IX of
this Agreement.
6.2 In connection with any Registration Statement in which an Investor is
participating, each such Investor will indemnify and hold harmless, to the same
extent and in the same manner set forth in Section 6.1 above, the Company, each
of its directors, each of its officers who signs the Registration Statement,
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, and any other Shareholder selling securities
pursuant to the Registration Statement or any of its directors or officers or
any person who controls such Shareholder within the meaning of the Securities
Act or the Exchange Act (each an "Indemnified Person") against any Claim to
------------------
which any of them may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in connection with
such Registration Statement. Subject to the restrictions set forth in Section
6.3, such Investor will promptly reimburse any legal or other expenses (promptly
as such expenses are incurred and due and payable) reasonably incurred by them
in connection with investigating or defending any such Claim. However, the
indemnity agreement contained in this Section 6.2 does not apply to amounts paid
in settlement of any Claim if such settlement is effected without the prior
written consent of such Investor, which consent will not be unreasonably
withheld, and no Investor will be liable under this Agreement (including this
Section 6.2 and Article VII) for the amount of any Claim that exceeds the net
proceeds actually received by such Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. This indemnity
will remain in full force and effect regardless of any investigation made by or
on behalf of an Indemnified Party and will survive the transfer of the
Registrable Securities by the Investors under Article IX of this Agreement.
Notwithstanding anything to the contrary contained herein, the
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<PAGE>
Indemnification Agreement contained in this Section 6.2 with respect to any
prospectus does not apply to and shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact by the
Investor contained in the prospectus was corrected on a timely basis and the
prospectus, as then amended or supplemented, and the Indemnified Party failed to
utilize such corrected prospectus.
6.3 Promptly after receipt by an Indemnified Person under this Article VI
of notice of the commencement of any action (including any governmental action),
such Indemnified Person will, if a Claim in respect thereof is to be made
against any indemnifying party under this Article VI, deliver to the
indemnifying party a written notice of the commencement thereof. The
indemnifying party may participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly given notice,
assume control of the defense thereof with counsel mutually satisfactory to the
indemnifying parties and the Indemnified Person. In that case, the indemnifying
party will diligently pursue such defense. If, in the reasonable opinion of
counsel retained by the indemnifying party, the representation by such counsel
of the Indemnified Person and the indemnifying party would be inappropriate due
to actual or potential conflicts of interest between the Indemnified Person and
any other party represented by such counsel in such proceeding or the actual or
potential defendants in, or targets of, any such action including the
Indemnified Person, and any such Indemnified Person reasonably determines that
there may be legal defenses available to such Indemnified Person that are
different from or in addition to those available to the indemnifying party, then
the Indemnified Person is entitled to assume such defense and may retain its own
counsel, with the fees and expenses to be paid by the indemnifying party. The
Company will pay for only one separate legal counsel for the Investors
collectively, and such legal counsel will be selected by the Investors holding a
majority in interest of the Registrable Securities. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action does not relieve an indemnifying party of any
liability to an Indemnified Person under this Article 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend such action.
The indemnification required by this Article 6 will be made by periodic payments
of the amount thereof during the course of the investigation or defense, as such
expense, loss, damage or liability is incurred and is due and payable.
ARTICLE VII
CONTRIBUTION
To the extent that any indemnification provided for herein is prohibited or
limited by law, the indemnifying party will make the maximum contribution with
respect to any amounts for which it would otherwise be liable under Article 6 to
the fullest extent permitted by law. However, (a) no contribution will be made
under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Article 6, (b) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any seller of Registrable Securities who was not guilty of such fraudulent
misrepresentation, and (c) contribution (together with any indemnification or
other obligations under this Agreement) by any seller of Registrable Securities
will be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
11
<PAGE>
ARTICLE VIII
EXCHANGE ACT REPORTING
In order to make available to the Investors the benefits of Rule 144 or any
similar rule or regulation of the SEC that may at any time permit the Investors
to sell securities of the Company to the public without registration, the
Company will use it commercially reasonable efforts to:
(a) File with the SEC in a timely manner, and make and keep available,
all reports and other documents required of the Company under the Securities Act
and the Exchange Act so long as the Company remains subject to such requirements
(it being understood that nothing herein limits the Company's obligations under
Section 4.3 of the Purchase Agreement) and the filing and availability of such
reports and other documents is required for the applicable provisions of Rule
144; and
(b) Furnish to each Investor, so long as such Investor holds Registrable
Securities, promptly upon the Investor's request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents filed by
the Company with the SEC and (iii) such other information as may be reasonably
requested to permit the Investors to sell such securities pursuant to Rule 144
without registration.
ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
The rights of the Investors hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, will be
automatically assigned by the Investors to transferees or assignees of all or
any portion of the Registrable Securities, but only if (a) the Investor agrees
in writing with the transferee or assignee to assign such rights, and a copy of
such agreement is furnished to the Company within a reasonable time after such
assignment, (b) the Company is, within a reasonable time after such transfer or
assignment, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned, (c) after such transfer
or assignment, the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act and applicable state securities
laws, (d) at or before the time the Company received the written notice
contemplated by clause (b) of this sentence, the transferee or assignee agrees
in writing with the Company to be bound by all of the provisions contained
herein, (e) such transfer is made in accordance with the applicable requirements
of the Purchase Agreement, and (f) the transferee is an "accredited investor" as
that term is defined in Rule 501 of Regulation D.
ARTICLE X
AMENDMENT OF REGISTRATION RIGHTS
This Agreement may be amended and the obligations hereunder may be waived
(either generally or in a particular instance, and either retroactively or
prospectively) only with the written consent of the Company and of the Investors
who then hold a majority in interest of the Registrable Securities (but not
including any Investor who is not affected by such amendment or
12
<PAGE>
waiver). Any amendment or waiver effected in accordance with this Article X is
binding upon each Investor and the Company. Notwithstanding the foregoing, no
amendment or waiver will retroactively affect any Investor without its consent,
or will prospectively adversely affect any Investor who no longer owns any
Registrable Securities without its consent. Neither Article VI nor Article VII
hereof may be amended or waived in a manner adverse to an Investor without its
consent.
ARTICLER XI
MISCELLANEOUS
11.1 Conflicting Instructions. A person or entity is deemed to be a holder
------------------------
of Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company will act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
11.2 Notices. Any notices required or permitted to be given under the terms
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of this Agreement will be given as set forth in the Purchase Agreement.
11.3 Waiver. Failure of any party to exercise any right or remedy under
------
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, does not operate as a waiver thereof.
11.4 Governing Law. This Agreement will be governed by and interpreted in
-------------
accordance with the laws of the State of California without regard to the
principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the United States federal and state courts located in
the State of California with respect to any dispute arising under this
Agreement, the agreements entered into in connection herewith or the
transactions contemplated hereby or thereby.
11.5 Severability. If any provision of this Agreement is invalid or
------------
unenforceable under any applicable statute or rule of law, then such provision
will be deemed modified in order to conform with such statute or rule of law.
Any provision hereof that may prove invalid or unenforceable under any law will
not affect the validity or enforceability of any other provision hereof.
11.6 Entire Agreement. This Agreement and the Purchase Agreement,
----------------
(including all schedules and exhibits thereto) constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein or therein. This Agreement supersedes all
prior agreements and understandings among the parties hereto with respect to the
subject matter hereof.
11.7 Successors and Assigns. Subject to the requirements of Article 9
----------------------
hereof, this Agreement inures to the benefit of and is binding upon the
successors and assigns of each of the parties hereto.
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11.8 Use of Pronouns. All pronouns refer to the masculine, feminine or
---------------
neuter, singular or plural, as the context may require.
11.9 Headings. The headings of this Agreement are for convenience of
--------
reference only, are not part of this Agreement and do not affect its
interpretation.
11.10 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which is deemed an original but all of which constitute
one and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission, and facsimile
signatures are binding on the parties hereto. In the event any signature is
delivered by facsimile transmission, the party using such means of delivery
shall cause the manually executed pages to be physically delivered to the other
party within 5 business days of the execution hereof.
11.11 Further Assurances. Each party will do and perform, or cause to be
------------------
done and performed, all such further acts and things, and will execute and
deliver all other agreements, certificates, instruments and documents, as
another party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
11.12 Consents. All consents and other determinations to be made by the
--------
Investors pursuant to this Agreement will be made by the Initial Investors or
the Investors holding a majority in interest of the Registrable Securities.
11.13 No Strict Construction. The language used in this Agreement is deemed
----------------------
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party.
14
<PAGE>
IN WITNESS WHEREOF, the undersigned Investors and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
GREATER BAY BANCORP.
By: /s/ Steven C. Smith
-------------------
Name: Steven. C. Smith
Title: Executive Vice President, Chief
Administrative Officer and Chief Financial Officer
[Signatures continued on next page]
15
<PAGE>
INVESTOR: FRANKLIN SMALL CAP GROWTH FUND
By: /s/ Murray L. Simpson
------------------------------
Name: Murray L. Simpson
Its: Vice President
INVESTOR: EMERGING SMALL COMPANY TRUST
By: /s/ Murray L. Simpson
------------------------------
Name: Murray L. Simpson
Its: Vice President
INVESTOR: U.S. SMALL CAP FUND
By: /s/ Murray L. Simpson
------------------------------
Name: Murray L. Simpson
Its: Vice President
INVESTOR: FRANKLIN SMALL CAP INVESTMENTS FUND
By: /s/ Murray L. Simpson
------------------------------
Name: Murray L. Simpson
Its: Vice President
INVESTOR: MERRILL LYNCH GLOBAL FINANCIAL
SERVICES PORTFOLIO, INC.
By: /s/ James Ellman
------------------------------
Name: James Ellman
Its: Vice President and Portfolio Manager
INVESTOR: MERRILL LYNCH EQUITY CONVERTIBLE SERIES-
FINANCIAL SERVICES PORTFOLIO
By: /s/ Andrea Mitroff
------------------------------
Name: Andrea Mitroff
Its: Assistant Portfolio Manager
16
<PAGE>
INVESTOR: LAWRENCE OFFSHORE PARTNERS, LLC
By: /s/ Lawrence Garshofsky
------------------------------
Name: Lawrence Garshofsky
Its: Manager
INVESTOR: LAWRENCE PARTNERS, LP
By: /s/ Lawrence Garshofsky
------------------------------
Name: Lawrence Garshofsky
Its: Manager
INVESTOR: SUNOVA LONG-TERM OPPORTUNITY FUND, LP
By: /s/ Matthew Byrnes
-------------------------------
Name: Matthew Byrnes
Its: Managing Partner
INVESTOR: MALTA OFFSHORE, LTD
SANDLER O'NEILL ASSET MANAGEMENT
By: /s/ Terry Maltese
------------------------------
Name: Terry Maltese
Its: President
INVESTOR: MALTA HEDGE FUND II, LP
SANDLER O'NEILL ASSET MANAGEMENT
By: /s/ Terry Maltese
-------------------------------
Name: Terry Maltese
Its: President
INVESTOR: MALTA HEDGE FUND, LP
SANDLER O'NEILL ASSET MGMT
By: /s/ Terry Maltese
-------------------------------
Name: Terry Maltese
Its: President
17
<PAGE>
INVESTOR: MALTA PARTNERS II,LP
SANDLER O'NEILL ASSET MGMT
By: /s/ Terry Maltese
--------------------------------
Name: Terry Maltese
Its: President
INVESTOR: MALTA PARTNERS, LP
SANDLER O'NEILL ASSET MGMT
By: /s/ Terry Maltese
--------------------------------
Name: Terry Maltese
Its: President
INVESTOR: NORTHAVEN PARTNERS, L.P.
By: /s/ Paul Burke
--------------------------------
Name: Paul Burke
Its: Member of General Partner
INVESTOR: NORTHAVEN PARTNERS II, L.P.
By: /s/ Paul Burke
--------------------------------
Name: Paul Burke
Its: Member of GP
INVESTOR: NORTHAVEN PARTNERS III,L.P.
By: /s/ Paul Burke
--------------------------------
Name: Paul Burke
Its: Member of GP
INVESTOR: BANC FUND V, L.P.
By: /s/ Charles J. Moore
---------------------------------
Name: Charles J. Moore
Its: Member
18
<PAGE>
INVESTOR: BANK FUND III TRUST
By: /s/ Charles J. Moore
---------------------------------
Name: Charles J. Moore
Its: Member
INVESTOR: BANC FUND III, L.P.
By: /s/ Charles J. Moore
--------------------------------
Name: Charles J. Moore
Its: Member
INVESTOR: MUTUAL FINANCIAL SERVICES FUND
By: /s/ Raymond Garea
---------------------------------
Name: Raymond Garea
Its: Senior Vice President
INVESTOR: NICHOLAS-APPLEGATE PACIFIC
CENTURY TRUST #2 SMALL
By: /s/ Scott A. Long
---------------------------------
Name: Scott A. Long
Its: Head of Global Operations
INVESTOR: NICHOLAS-APPLEGATE SMALL CAP VALUE
By: /s/ Scott A. Long
---------------------------------
Name: Scott A. Long
Its: Head of Global Operations
INVESTOR: NICHOLAS-APPLEGATE CORNERSTONE/SHEPERD
VALUE
By: /s/ Scott A. Long
---------------------------------
Name: Scott A. Long
Its: Head of Global Operations
19
<PAGE>
EXHIBIT 99.1
For Information Contact
- -----------------------
At Greater Bay Bancorp: At Financial Relations Board:
David L. Kalkbrenner Christina Carrabino (general information)
President and CEO Stephanie Mishra (analyst contact)
(650) 614-5767 (415) 986-1591
Steven C. Smith
EVP, CAO and CFO
(650) 813-8222
FOR IMMEDIATE RELEASE
---------------------
GREATER BAY BANCORP ANNOUNCES
COMPLETION OF COMMON STOCK
AND TRUST PREFERRED SECURITIES OFFERINGS
PALO ALTO, CA, March 23, 2000 -- Greater Bay Bancorp (Nasdaq:GBBK), a $2.85
billion in assets financial services holding company, announced that it has
completed two private offerings of securities. With this additional capital and
assuming completion of Greater Bay Bancorp's three recently announced pending
mergers, the company would have $3.75 billion in assets on a pro forma basis as
of December 31, 1999.
In one private offering, Greater Bay Bancorp issued 324,324 shares of restricted
common stock to institutional investors with gross proceeds of approximately
$12,000,000. In a separate private offering, the company issued $9,500,000 of
trust preferred securities, through the company's trust subsidiary GBB Capital
III, to a qualified institutional buyer.
With respect to the newly issued common shares, the company has agreed to file a
registration statement with the SEC within 30 business days to register the
shares for resale; however, the shares may be subject to certain trading
restrictions in the event of material developments relating to Greater Bay
Bancorp. Keefe, Bruyette & Woods, Inc. acted as placement agent for the common
offering.
The trust preferred securities bear a 10 7/8% fixed rate of interest payable
semi-annually. GBB Capital III used the proceeds from the sale of the trust
preferred securities to purchase junior subordinated deferrable interest
debentures of Greater Bay Bancorp. Greater Bay Bancorp intends to invest a
portion of the net proceeds in one or more of the company's subsidiary banks to
increase their capital levels and intends to use the remaining net proceeds for
general corporate purposes. Under applicable regulatory guidelines, Greater Bay
Bancorp expects that the trust preferred securities will qualify as Tier I
Capital.
David L. Kalkbrenner, President and Chief Executive Officer of Greater Bay
Bancorp, stated, "With this additional capital, Greater Bay Bancorp intends to
continue its successful strategy of growth through internal initiatives designed
to increase our base of quality assets, while also pursuing merger opportunities
with select independent banks and financial services companies. Even with the
<PAGE>
Greater Bay Bancorp Announces Completion of Common Stock
And Trust Preferred Securities Offerings
March 23, 2000
Page 2
additional common shares outstanding and the interest expense associated with
the trust preferred securities, we continue to feel comfortable in our ability
to meet the analysts' consensus earnings estimates for the year 2000."
Steven C. Smith, Executive Vice President, Chief Administrative Officer and
Chief Financial Officer of Greater Bay Bancorp, commented, "After receiving the
additional $12 million in common equity, we feel very comfortable with our
common equity position and do not anticipate raising any additional common
stock."
The following table details on a historical and pro forma basis Greater Bay
Bancorp's capital ratios as of December 31, 1999.
----------------------------------------------------------------------------
Historical Pro-Forma
($'s in billions) 12/31/99 12/31/99 (1)(2)
----------------------------------------------------------------------------
Total Assets $ 2.85 $ 3.75
Risk Weighted Assets $ 2.45 $ 3.25
Capital Ratios:
Equity to Assets 6.09% 7.06%
Leverage 7.85% 9.04%
Tier 1 Risk Based Capital 9.14% 10.23%
Total Risk Based Capital 10.55% 11.64%
-----------------------------------------------------------------------------
(1) - Includes Coast Bancorp, Bank of Santa Clara and Bank of Petaluma.
(2) - Includes $12.0 million issuance of common stock and $9.5 million
issuance of trust preferred securities.
Greater Bay Bancorp through its seven subsidiary banks, Bay Area Bank, Bay Bank
of Commerce, Cupertino National Bank, Golden Gate Bank, Mid-Peninsula Bank, Mt.
Diablo National Bank and Peninsula Bank of Commerce, along with its operating
divisions, serves clients throughout Silicon Valley, San Francisco, the San
Francisco Peninsula, and the Contra Costa Tri Valley Region, with offices
located in Cupertino, Danville, Fremont, Hayward, Lafayette, Millbrae, Palo
Alto, Pleasanton, Redwood City, San Francisco, San Jose, San Leandro, San Mateo,
San Ramon, Santa Clara and Walnut Creek.
Safe Harbor
Certain matters discussed in this press release constitute forward looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995. These forward looking statements relate to the Company's continuing growth
strategy, its plans regarding the leveraging of the additional capital and its
impact on earnings and shareholder returns and the closing of pending previously
announced mergers. These forward looking statements are subject to certain risks
and uncertainties that could cause the actual results, performance or
achievements to differ materially from those expressed, suggested or implied by
the forward looking statements. These risks and uncertainties include, but are
not limited to: (1) the impact which changes in interest rates, a decline in
economic conditions at the international, national and local levels and
increased competition among financial service providers has on the Company's
results of operations, the Company's ability to continue its internal growth at
historical rates, the Company's ability to maintain its net
<PAGE>
Greater Bay Bancorp Announces Completion of Common Stock
And Trust Preferred Securities Offerings
March 23, 2000
Page 3
interest spread, and on the quality of the Company's earning assets; (2) the
period of time it takes the Company to leverage the additional funds into
earning assets; (3) when and if the pending mergers are consummated and (4) the
other risks set forth in the Company's reports filed with the Securities and
Exchange Commission, including its Annual Report on Form 10-K for the year ended
December 31, 1999.
For investor information on Greater Bay Bancorp at no charge, call our automated
shareholder information line at 1-800-PRO-INFO (1-800-776-4636) and enter code
GBBK. For international access, dial 1-201-432-6555.
###
