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As filed with the Securities and Exchange Commission on April 26, 2000
Registration No.: 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
Greater Bay Bancorp
(Exact name of registrant as specified in its charter)
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California 6711 77-0487041
<S> <C> <C>
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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2860 West Bayshore Road
Palo Alto, California 94303
(Address including zip code, and telephone number, including area code, of
registrant's principal executive office)
Linda M. Iannone
General Counsel
Greater Bay Bancorp
400 Emerson Street, Third Floor
Palo Alto, California 94301
(650) 614-5734
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
William T. Quicksilver, Esq.
Manatt, Phelps & Phillips, LLP
11355 West Olympic Boulevard
Los Angeles, California 90064
(310) 312-4210
________________
Approximate date of commencement of proposed sale to public:
As soon as practicable after this Registration Statement becomes effective.
________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(c) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
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Calculation of Registration Fee
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Proposed
Title of each class Amount to be Proposed maximum maximum Amount of
of securities to be registered(2) offering aggregate registration fee
registered price per unit(3) offering price(3)
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<S> <C> <C> <C> <C>
Common Stock, no par value(1) 324,324 shares $ 41.50 $ 13,459,446 $ 3,553
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(1) Includes one attached Preferred Share Purchase Right per share.
(2) This amount represents shares to be offered by the selling shareholders
from time to time after the effective date of this registration statement
at prevailing market prices at time of sale. Pursuant to Rule 416, this
registration statement also covers such indeterminable additional shares as
may become issuable as a result of any future stock splits, stock dividends
or similar transactions.
(3) Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457 based upon the average of the high and low prices
of the common stock as reported on the Nasdaq National Market System on
April 25, 2000.
________________________________
Greater Bay hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until Greater Bay shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of any offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 26, 2000
PROSPECTUS
324,324 Shares
GREATER BAY BANCORP
Common Stock
___________________
Shares of common stock of Greater Bay Bancorp are being offered by this
prospectus. The shares will be sold from time to time by the selling
shareholders identified on page 6 of this prospectus. We will not receive any of
the proceeds from the sale of the shares.
Our common stock is quoted on the Nasdaq National Market under the symbol
"GBBK." The last sale price for the common stock on April 25, 2000, as reported
on the Nasdaq National Market System, was $41.36 per share.
See "Risk Factors," beginning on page 3, to read about certain factors you
should consider before buying shares of the common stock.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY BODY HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF A BANK OR SAVINGS ASSOCIATION AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY.
The information in this prospectus is not complete and may be changed. The
selling shareholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is declared
effective. This prospectus is not an offer to sell these securities, and it is
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
The date of this prospectus is ___________, 2000.
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TABLE OF CONTENTS
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Page
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About this Prospectus...................................................... 2
Risk Factors............................................................... 3
About Greater Bay.......................................................... 4
Use of Proceeds............................................................ 5
Selling Shareholders....................................................... 5
Plan of Distribution....................................................... 7
Legal Matters.............................................................. 8
Experts.................................................................... 9
Where You Can Find More Information........................................ 9
A Warning about Forward Looking Information................................ 9
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ABOUT THIS PROSPECTUS
In this prospectus, "Greater Bay," "us," "we" and "our" refer to Greater
Bay Bancorp and its consolidated subsidiaries unless otherwise stated or the
context otherwise requires.
You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
You should not assume that the information in this prospectus is accurate as of
any date other than the date on the front of this document.
The shares offered by this prospectus have not been registered under the
securities laws of any state or other jurisdiction as of the date of this
prospectus. We are not making an offer of these securities in any jurisdiction
where the offer is not permitted. Brokers or dealers should confirm the
existence of an exemption from registration or effectuate such registration in
connection with any offer and sale of the shares.
You should read this prospectus together with the additional information
described under the heading "Where You Can Find More Information" on page 9 of
this prospectus.
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RISK FACTORS
In addition to the other information contained in this prospectus, you
should consider carefully the following risks before purchasing our common
stock. If any of these risks occurs, our business, financial condition or
operating results could be adversely affected. In that case, the trading price
of our common stock could decline and you could lose all or part of your
investment.
Failure to successfully execute our growth strategy or to integrate
recently acquired subsidiaries could adversely affect our performance.
Our financial performance and profitability will depend on our ability to
execute our corporate growth strategy and manage our recent and possible future
growth. Although management believes that it has substantially integrated the
business and operations of recently acquired subsidiaries, there can be no
assurance that unforeseen issues relating to the assimilation of these
subsidiaries will not adversely affect us. In addition, any future acquisitions
and our continued growth may present operating and other problems that could
have an adverse effect on our business, financial condition and results of
operations. Our financial performance will also depend on our ability to
maintain profitable operations through implementation of our Super Community
Banking Philosophy, which is described below. Accordingly, there can be no
assurance that we will be able to execute our growth strategy or maintain the
level of profitability that we have recently experienced.
Changes in market interest rates may adversely affect our performance.
Our earnings are impacted by changing interest rates. Changes in interest
rates impact the demand for new loans, the credit profile of existing loans, the
rates received on loans and securities and rates paid on deposits and
borrowings. The relationship between the rates received on loans and securities
and the rates paid on deposits and borrowings is known as interest rate spread.
Given our current volume and mix of interest-bearing liabilities and interest-
earning assets, our interest rate spread could be expected to increase during
times of rising interest rates and, conversely, to decline during times of
falling interest rates. Although we believe our current level of interest rate
sensitivity is reasonable, significant fluctuations in interest rates may have
an adverse effect on our business, financial condition and results of
operations.
Our Bay Area business focus and economic conditions in the Bay Area could
adversely affect our operations.
Our operations are located in Northern California and concentrated
primarily in Contra Costa, San Francisco, Santa Clara and San Mateo Counties,
which includes the area known as the "Silicon Valley." As a result of this
geographic concentration, our results depend largely upon economic conditions in
these areas. A deterioration in economic conditions in our market areas,
particularly in the technology and real estate industries on which these areas
depend, could have a material adverse impact on the quality of our loan
portfolio, the demand for our products and services, which in turn may have a
material adverse effect on our results of operations.
We are subject to government regulation that could limit or restrict our
activities, which in turn could adversely impact our operations.
The financial services industry is regulated extensively. Federal and State
regulation is designed primarily to protect the deposit insurance funds and
consumers, and not to benefit our shareholders. These regulations can sometimes
impose significant limitations on our operations. In addition, these regulations
are constantly evolving and may change significantly over time. Significant new
laws or changes in existing laws or repeal of existing laws may cause our
results to differ materially. Further, federal monetary policy, particularly as
implemented through the Federal Reserve System, significantly affects credit
conditions for us.
3
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Competition may adversely affect our performance.
The financial services business in our market areas is highly competitive.
It is becoming increasingly competitive due to changes in regulation,
technological advances, and the accelerating pace of consolidation among
financial services providers. We face competition both in attracting deposits
and in making loans. We compete for loans principally through the interest rates
and loan fees we charge and the efficiency and quality of services we provide.
Increasing levels of competition in the banking and financial services
businesses may reduce our market share or cause the prices we charge for our
services to fall. Our results may differ in future periods depending upon the
nature or level of competition.
If a significant number of borrowers, guarantors and related parties fail
to perform as required by the terms of their loans, we will sustain losses.
A significant source of risk arises from the possibility that losses will
be sustained if a significant number of our borrowers, guarantors and related
parties fail to perform in accordance with the terms of their loans. We have
adopted underwriting and credit monitoring procedures and credit policies,
including the establishment and review of the allowance for credit losses, that
management believes are appropriate to minimize this risk by assessing the
likelihood of nonperformance, tracking loan performance and diversifying our
credit portfolio. These policies and procedures, however, may not prevent
unexpected losses that could materially adversely affect our results of
operations.
ABOUT GREATER BAY
General
Greater Bay was formed as the result of the merger in November 1996 between
Cupertino National Bancorp, the former holding company for Cupertino National
Bank, and Mid-Peninsula Bancorp, the former holding company for Mid-Peninsula
Bank. Since 1996, we have grown steadily. We have added five additional banks to
the Greater Bay Bancorp Family -
. Golden Gate Bank,
. Peninsula Bank of Commerce,
. Bay Area Bank,
. Bay Bank of Commerce, and
. Mt. Diablo National Bank.
Each of these acquisitions was accounted for as a pooling of interests. To
complement the services provided by the core banks, we have expanded to include:
. Greater Bay Trust Company and Private Capital Banking,
. Greater Bay International Banking Division,
. Venture Banking Group,
. Greater Bay Bank Santa Clara Valley Commercial Banking Group,
. Greater Bay Bank Contra Costa Region,
. Greater Bay Bank Fremont Region,
. Pacific Business Funding,
. Greater Bay Corporate Finance Group,
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. Greater Bay Bank SBA Lending Group, and
. Greater Bay Bank San Jose Regional Office.
On December 14, 1999, Greater Bay and Coast Bancorp, the holding company
for Coast Commercial Bank, signed a definitive agreement for a merger between
the two companies. Upon completion of the merger, which is expected to be in the
second quarter of 2000, Coast Commercial Bank will become our eighth banking
subsidiary. On January 26, 2000, Greater Bay, Bank of Santa Clara and GBB Merger
Corp. signed a definitive agreement for the merger of Bank of Santa Clara with
GBB Merger Corp., as a result of which Bank of Santa Clara will become a wholly
owned subsidiary of Greater Bay. The merger with Bank of Santa Clara is expected
to be completed in the third quarter of 2000. On March 21, 2000, Greater Bay,
Bank of Petaluma and DKSS Corp. signed a definitive agreement for the merger of
Bank of Petaluma with DKSS Corp., as a result of which Bank of Petaluma will
become a wholly owned subsidiary of Greater Bay. The merger with Bank of
Petaluma is expected to be completed in the fourth quarter of 2000.
Super Community Banking Philosophy
In order to meet the demands of the increasingly competitive banking and
financial services industries, we have adopted a business philosophy referred to
as the "Super Community Banking Philosophy." Our Super Community Banking
Philosophy is based on our belief that banking clients value doing business with
locally managed institutions that can provide a full service commercial banking
relationship through an understanding of the clients' financial needs and the
flexibility to deliver customized solutions through our menu of products and
services. We also believe that banks are better able to build successful client
relationships by affiliating with a holding company that provides cost effective
administrative support services while promoting bank autonomy and flexibility.
To implement this philosophy, we operate each of our banking subsidiaries
separately by retaining their independent names and separate boards of
directors. Our banking subsidiaries have established strong reputations and
customer followings in their market areas through attention to client service
and an understanding of client needs. In an effort to capitalize on the
identities and reputations of our banking subsidiaries, we currently intend to
continue to market our services under each banking subsidiary's name, primarily
through each banking subsidiary's relationship managers. The primary focus for
the banking subsidiaries' relationship managers is to cultivate and nurture
their client relationships. Relationship managers are assigned to each borrowing
client to provide continuity in the relationship. This emphasis on personalized
relationships requires that all of the relationship managers maintain close ties
to the communities in which they serve, so they are able to capitalize on their
efforts through expanded business opportunities for the banking subsidiaries.
While client service decisions and day-to-day operations are maintained at
the banking subsidiaries, we offer the advantages of affiliation with a multi-
bank holding company by providing expanded client support services, such as
business cash management, international trade services and accounting services.
In addition, we provide centralized administrative functions, including support
in credit policy formulation and review, investment management, data processing,
accounting, loan servicing and other specialized support functions. This allows
our banking subsidiaries to focus on client service.
USE OF PROCEEDS
The selling shareholders will receive all of the net proceeds from the sale
of the shares offered by this prospectus. None of the proceeds will be available
for our use or benefit.
SELLING SHAREHOLDERS
The selling shareholders acquired the shares in a private placement of our
common stock in March 2000. In the private placement, we issued 324,324 shares
of our common stock at a price of $37.00 per share to accredited investors. We
received gross proceeds of approximately $12 million which, net of offering
expenses, will be used for general corporate purposes. We granted registration
rights to the investors covering the resale of common stock issued to investors
in the private placement. We are registering the shares on a Registration
Statement on Form S-3,
5
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of which this prospectus forms a part. The shares are being registered to permit
public secondary trading of the shares, and the selling shareholders may offer
the shares for resale from time to time.
The following table lists the selling shareholders and sets forth certain
information known to us as of April 25, 2000 regarding the beneficial ownership
of common stock of each selling shareholder. The following table assumes that
the selling shareholders sell all of the shares offered by this prospectus. We
are unable to determine the exact number of shares that actually will be sold.
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Shares Owned Shares Owned
Prior to Offering Number of After Offering
-------------------------- Shares Offered by --------------------------
Name Number Percentage this Prospectus Number Percentage
- -------------------------------------- ---------- ---------- ----------------- ---------- ----------
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The Banc Funds Company, LLC:
Banc Fund III Trust 23,027 * 7,784 15,243 *
Banc Fund III, L.P 7,533 * 2,540 4,993 *
Banc Fund V, L.P. 64,646 * 10,000 54,646 *
Franklin Advisers Inc.:
Franklin Small Cap Growth Fund 201,200 1.4% 201,200 0 *
Franklin Small Cap Investments Fund 1,700 * 1,700 0 *
Franklin U.S. Small Cap Fund 1,700 * 1,700 0 *
Manulife Emerging Small Company Trust 7,900 * 7,900 0 *
Franklin Mutual Advisers, LLC:
Mutual Financial Services Fund 20,000 * 20,000 0 *
Lawrence Garshofsky & Co. LLC:
Lawrence Offshore Partners, LLC 2,500 * 2,500 0 *
Lawrence Partners, L.P. 2,500 * 2,500 0 *
Merrill Lynch Asset Management:
Merrill Lynch Equity 15,500 * 15,500 *
Convertible Series -
Financial Services
Portfolio
Merrill Lynch Global 7,000 * 7,000 0 *
Financial Services
Portfolio, Inc.
Nicholas Applegate Capital Management:
Cornerstone/Shepherd Value 100 * 100 0 *
Nicholas Applegate Small-Cap Value 300 * 300 0 *
</TABLE>
6
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Shares Owned Shares Owned
Prior to Offering Number of After Offering
-------------------------- Shares Offered by --------------------------
Name Number Percentage this Prospectus Number Percentage
- ------------------------- ---------- ---------- ----------------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Pacific Century Trust #2 9,600 * 9,600 0 *
Northaven Management, Inc.:
Northaven Partners, L.P. 7,500 * 4,100 3,400 *
Northaven Partners II, L.P. 12,700 * 6,900 5,800 *
Northaven Partners III, L.P. 9,300 * 5,000 4,300 *
Sandler O'Neill Asset
Management, LLC:
Malta Hedge Fund, LP 900 * 900 0 *
Malta Hedge Fund II, LP 3,600 * 3,600 0 *
Malta Partners, LP 900 * 900 0 *
Malta Partners II, LP 2,700 * 2,700 0 *
Malta Offshore, Ltd. 900 * 900 0 *
SuNOVA Capital:
SuNOVA Long-Term
Opportunity Fund, L.P. 9,000 * 9,000 0 *
Total: 412,706 2.8% 324,324 88,382 *
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*Less than 1%
PLAN OF DISTRIBUTION
We are registering the shares on behalf of the selling shareholders. As
used in this prospectus, "selling shareholders" includes donees, pledgees,
transferees or other successors-in-interest selling shares received from a
selling shareholder as a gift, pledge, partnership distribution or other non-
sale related transfer after the date of the prospectus. We will bear all costs,
expenses, and fees in connection with the registration of the shares offered by
this prospectus. Brokerage commissions and similar selling expenses, if any,
attributable to the sale of shares will be borne by the selling shareholders.
Sales of shares may be effected by selling shareholders from time to time
in one or more types of transactions (which may include block transactions):
. on the Nasdaq National Market,
. in the over-the-counter market,
. negotiated transactions,
. through put or call options transactions relating to the shares,
. through short sales of shares,
. or a combination of such methods of sale, at market prices
prevailing at the time of sale, or at negotiated prices.
7
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These transactions may or may not involve brokers or dealers. The selling
shareholders have advised us that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding
the sale of their securities, nor is there an underwriter or coordinating broker
acting in connection with the proposed sale of shares by the selling
shareholders.
The selling shareholders may effect transactions by selling shares directly
to purchasers or to or through broker-dealers, which may act as agents or
principals. These broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from the selling shareholders and/or the
purchasers of shares for whom the broker-dealers may act as agents or to whom
they sell as principal, or both (which compensation as to a particular broker-
dealer might be in excess of customary commissions).
The selling shareholders and any broker-dealers that act in connection with
the sale of shares might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act of 1933, as amended, or Securities Act, and
any commissions received by the broker-dealers and any profit on the resale of
the shares sold by them while acting as principals might be deemed to be
underwriting discounts or commissions under the Securities Act. We have agreed
to indemnify each selling shareholder against certain liabilities, including
liabilities arising under the Securities Act. The selling shareholders may agree
to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. Because selling
shareholders may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, the selling shareholders will be subject to the
prospectus delivery requirements of the Securities Act. We have informed the
selling shareholders that the anti-manipulative provisions of Regulation M
promulgated under the Exchange Act may apply to their sales in the market.
Selling shareholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act, provided
they meet the criteria and conform to the requirements of that Rule.
If we are notified by a selling shareholder that any material arrangement
has been entered into with a broker-dealer for the sale of shares through a
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, a supplement to this prospectus will be
filed, if required, according to Rule 424(b) under the Act, disclosing:
. the name of each selling shareholder and of the participating
broker-dealers(s),
. the number of shares involved,
. the price at which the shares were sold,
. the commissions paid or discounts or concessions allowed to the
broker-dealer(s), where applicable,
. that the broker-dealer(s) did not conduct any investigation to
verify the information set out or incorporated by reference in
this prospectus, and
. other facts material to the transaction.
In addition, if we are notified by a selling shareholder that a donee, pledgee,
transferee or other successor in interest intends to sell more than 500 shares,
we will file a supplement to this prospectus.
LEGAL MATTERS
Linda M. Iannone, our Senior Vice President and General Counsel, will give
her opinion on the legality of the shares for the purpose of this offering. As
of the date of this document, Ms. Iannone owned 376 shares of Greater Bay common
stock and held options to purchase 23,900 shares of Greater Bay common stock.
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EXPERTS
The consolidated balance sheets as of December 31, 1999 and 1998 of Greater
Bay and the consolidated statements of operations, comprehensive income,
shareholders' equity and cash flows for each of the three years in the period
ended December 31, 1999, incorporated by reference in this prospectus, have been
incorporated herein in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the Commission's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the Commission at 1-
800-SEC-0330 for further information on the public reference rooms. Our public
filings are also available to the public from the Commission's Website at
"http://www.sec.gov."
The Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 as amended, or Exchange Act:
. Our Annual Report on Form 10-K, for the fiscal year ended
December 31, 1999, except for Part II, Items 6, 7, 7A and 8.
. Our Current Reports on Form 8-K filed on February 1, 2000,
February 3, 2000, February 4, 2000, March 22, 2000, March 24,
2000, March 31, 2000, April 6, 2000 and April 20, 2000.
. The description of the common stock contained in our Registration
Statement on Form 8-A filed with the Commission under the
Exchange Act on October 28, 1994, and the description of
preferred share purchase rights contained in our Registration
Statement on Form 8-A filed with the Commission under the
Exchange Act on November 25, 1998.
You may request a copy of these filings, at no cost, by writing to the
Corporate Secretary, Greater Bay Bancorp, 2860 West Bayshore Road, Palo Alto,
California 94303, or by calling (650) 813-8200.
A WARNING ABOUT FORWARD-LOOKING INFORMATION
This prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act, including
statements regarding our financing needs, business plans and prospects,
expectations and intentions. Forward-looking statements necessarily involve
risks and uncertainties, and our actual results could differ materially from
those anticipated in these forward-looking statements as a result of certain
factors, including those set forth below and elsewhere in this prospectus. The
factors set forth under "Risk Factors" and other cautionary statements made in
this prospectus should be read and understood as being applicable to all related
forward-looking statements wherever they appear in this prospectus.
9
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses to be paid by Greater Bay in connection with the
distribution of the securities being registered are as follows:
Securities and Exchange Commission filing fee.............. $ 3,553
Accounting fees and expenses............................... $ 5,000
Printing expenses.......................................... $ 5,000
Legal fees and expenses.................................... $10,000
Miscellaneous expenses..................................... $ 1,447
Total $25,000
Item 15. Indemnification of Directors and Officers.
Article Five of our Articles of Incorporation provides that the liability
of our directors for monetary damages shall be eliminated to the fullest extent
permissible under California law and that we are authorized to provide for the
indemnification of agents (as defined in Section 317 of the California General
Corporation Law) of the corporation in excess of that expressly permitted by
such Section 317 for breach of duty to the corporation and its shareholders to
the fullest extent permissible under California law. Article IX, Section 7 of
our Bylaws provides for indemnification of directors and officers of Greater Bay
to the fullest extent permissible under California law.
Section 317 sets forth the provisions pertaining to the indemnification of
corporate "agents." For purposes of this law, an agent is any person who is or
was a director, officer, employee or other agent of a corporation, or is or was
serving at the request of the corporation such capacity with respect to any
other corporation, partnership, join venture, trust or other enterprise.
Indemnification for expenses, including amounts paid on settling or otherwise
disposing of a threatened or pending action or defending against the same can be
made in certain circumstances by action of Greater Bay through:
. a majority vote of a quorum of Greater Bay's Board of Directors
consisting of directors who are not party to the proceedings;
. approval of the shareholders, with the shares owned by the person
to be indemnified not being entitled to vote thereon; or
. such court in which the proceeding is or was pending upon
application by designated parties. Under certain circumstances,
an agent can be indemnified, even when found liable.
Indemnification is mandatory where the agent's defense is
successful on the merits. The law allows us to make advances of
expenses for certain actions upon the receipt of an undertaking
that the agent will reimburse the corporation if the agent is
found liable.
Greater Bay has entered into indemnification agreements with its directors
and certain of its officers substantially to the foregoing effect. Greater Bay
also maintains directors and officers liability insurance.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling Greater Bay,
pursuant to the foregoing provisions or otherwise, we understand that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by Greater Bay of expenses incurred or paid by a director, officer or
controlling person of Greater Bay in
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the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, Greater Bay will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against a public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
Item 16. Exhibits and Financial Statement Schedules.
a. Exhibits. The following exhibits are filed as part of this
registration statement:
Exhibit No. Description
----------- -----------
4.1 Securities Purchase Agreement by and among Greater Bay
Bancorp and the selling shareholders dated March 22,
2000.(1)
4.2 Registration Rights Agreement among Greater Bay Bancorp
and the selling shareholders dated March 23, 2000.(1)
5.1 Opinion of Linda M. Iannone as to the legality of the
securities being registered.
23.1 Consent of Linda M. Iannone (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on page II-4).
_______________________
(1) Included as an exhibit to Registrant's Current Report on Form 8-K
filed with the Commission on March 24, 2000 and incorporated
herein by reference.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to
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<PAGE>
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Greater Bay
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Palo Alto, State of California, on April 25, 2000.
GREATER BAY BANCORP
By: /s/ David L. Kalkbrenner
------------------------
David L. Kalkbrenner
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Greater Bay Bancorp, do
hereby severally constitute and appoint David L. Kalkbrenner and Steven C. Smith
and each of them singly, our true and lawful attorneys and agents, to do any and
all things and acts in our names in the capacities indicated below and to
execute any all instruments for us and in our names in the capacities indicated
below which said persons, or either of them, may deem necessary or advisable to
enable Greater Bay Bancorp to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the offering contemplated by this
Registration Statement on Form S-3, including specifically, but not limited to,
power and authority to sign for us or any of us in our names in the capacities
indicated below and any and all amendments, including post-effective amendments
to this registration statement and any Rule 462(b) Registration Statement or
amendments thereto; and we hereby ratify and confirm all that said persons, or
either of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ David L. Kalkbrenner President, Chief Executive April 25, 2000
- ----------------------------
David L. Kalkbrenner Officer and Director
(Principal Executive Officer)
/s/ Steven C. Smith Executive Vice President, Chief April 25, 2000
- ----------------------------
Steven C. Smith Administrative Officer and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ George R. Corey Director April 25, 2000
- ----------------------------
George R. Corey
/s/ John M. Gatto Director April 25, 2000
- ----------------------------
John M. Gatto
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<PAGE>
Signature Title Date
--------- ----- ----
/s/ John J. Hounslow Director April 25, 2000
- ----------------------------
John J. Hounslow
/s/ James E. Jackson Director April 25, 2000
- ----------------------------
James E. Jackson
/s/ Stanley A. Kangas Director April 25, 2000
- ----------------------------
Stanley A. Kangas
/s/ Rex D. Lindsay Director April 25, 2000
- ----------------------------
Rex D. Lindsay
/s/ George M. Marcus Director April 25, 2000
- ----------------------------
George M. Marcus
/s/ Duncan L. Matteson Director April 25, 2000
- ----------------------------
Duncan L. Matteson
/s/ Rebecca Q. Morgan Director April 25, 2000
- ----------------------------
Rebecca Q. Morgan
/s/ Glen McLaughlin Director April 25, 2000
- ----------------------------
Glen McLaughlin
/s/ Dick J. Randall Director April 25, 2000
- ----------------------------
Dick J. Randall
/s/ Donald H. Seiler Director April 25, 2000
- ----------------------------
Donald H. Seiler
/s/ Warren R. Thoits Director April 25, 2000
- ----------------------------
Warren R. Thoits
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1 Securities Purchase Agreement by and among Greater Bay
Bancorp and the selling shareholders dated March 22,
2000./(1)/
4.2 Registration Rights Agreement among Greater Bay Bancorp and
the selling shareholders dated March 23, 2000./(1)/
5.1 Opinion of Linda M. Iannone as to the legality of the
securities being registered.
23.1 Consent of Linda M. Iannone (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on page II-4).
_______________________
(1) Included as an exhibit to Registrant's Current Report on Form 8-K
filed with the Securities and Exchange Commission on March 24, 2000
and incorporated herein by reference.
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<PAGE>
EXHIBIT 5.1
Greater Bay Bancorp
400 Emerson Street, 3/rd/ Floor
Palo Alto, California 94301
April 26, 2000
Greater Bay Bancorp
2860 West Bayshore Road
Palo Alto, CA 94303
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
As General Counsel of Greater Bay Bancorp (the "Company"), at your request,
I have examined the Registration Statement on Form S-3 (the "Registration
Statement") being filed by the Company with the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the sale from time to time of up to
324,324 shares of common stock, no par value, of the Company (the "Shares") by
the Selling Shareholders named in the Registration Statement.
I have examined such instruments, documents and records which I deemed
relevant and necessary for the basis of my opinion hereinafter expressed. In
such examination, I have assumed the genuineness of all signatures and the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies.
Based upon the foregoing and the other assumptions contained herein, it is
the opinion of the undersigned that the Shares to be sold by the Selling
Shareholders pursuant to the Registration Statement are duly authorized, validly
issued, fully paid and non-assessable.
This opinion is issued to you solely for use in connection with the
Registration Statement and is not to be quoted or otherwise referred to in any
financial statements of the Company or related document, nor is it to be filed
with or furnished to any government agency or other person, without my prior
written consent.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement which is being filed by the Company in connection with
the registration of the Shares under the Securities Act.
Very truly yours,
/s/ Linda M. Iannone
Linda M. Iannone
Senior Vice President, General Counsel and Secretary
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 31, 2000 relating to the
consolidated financial statements, which appears in Greater Bay Bancorp's
Current Report on Form 8-K dated February 1, 2000. We also consent to reference
to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
San Francisco, California
April 26, 2000
