<PAGE>
As filed with the Securities and Exchange Commission on February 22, 2000.
Registration No.333-
- -------------------------------------------------------------------------------
United States
Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
Registration Statement Under The Securities Act of 1933
GREATER BAY BANCORP
(Exact name of registrant as specified in its charter)
California 77-0387041
(State or other jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
2860 West Bayshore Road
Palo Alto, California 94303
(Address of principal executive offices) (Zip Code)
Mt. Diablo Bancshares 1992 Stock Option Plan, As Amended, As Assumed by Greater
Bay Bancorp
(Full title of plan)
Linda M. Iannone
General Counsel
Greater Bay Bancorp
400 Emerson Street, 3rd Floor
Palo Alto, California 94301
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (650) 614-5734
WITH A COPY TO:
William T. Quicksilver, Esq.
Manatt, Phelps & Phillips, LLP
11355 West Olympic Boulevard
Los Angeles, California 90064
Calculation of Registration Fee
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
Title of Amount Amount
Securities to to be Offering price Aggregate of
Be registered registered Per unit Offering price registration fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock,
no par value (1) 96,197 (2) $7.17- $41.16(3) $1,773,698 $468.26
- -----------------------------------------------------------------------------------------------------
</TABLE>
1 Includes one attached Preferred Share Purchase Right per share.
2 Pursuant to the Agreement and Plan of Reorganization dated September 15, 1999
between the Registrant and Mt. Diablo Bancshares, Registrant assumed, effective
as of January 31, 2000, all of the outstanding options to purchase common stock
of Mt. Diablo Bancshares, and such options became options to purchase
Registrant's common stock, with appropriate adjustments as to the number of
shares and exercise price of each assumed option. This Registration Statement
covers, in addition to the number of shares of Common Stock stated above, such
indeterminate number of shares as may become available under the Plan as a
result of the adjustment provisions thereof.
3 Calculated pursuant to Rule 457(c) and (h) based on actual option grant
prices.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION OF DOCUMENTS BY REFERENCE
Item 3. The following documents filed by Greater Bay Bancorp (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
in this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Registrant's Current Reports on Form 8-K filed February 1,
2000 filed pursuant to Section 13(a) or 15(d) of the Exchange Act.
(c) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the annual reports or the prospectus referred to in (a) above.
(d) The descriptions of the class of securities offered hereby which
is contained in a Registration Statement on Form 8-A dated October 27, 1994,
setting forth a description of the Registrant's common stock, and a Registration
Statement on Form 8-A dated November 23, 1998, setting forth a description of
the Registrant's preferred share purchase rights, filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
descriptions.
All other documents filed by the Registrant pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicate that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Any statement made in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Not applicable.
Item 5. The validity of the shares of common stock to be issued under the terms
of the Mt. Diablo Bancshares 1992 Stock Option Plan, as amended, as assumed by
the Registrant will be passed upon for the Registrant by Linda M. Iannone,
Senior Vice President and General Counsel of the Registrant. As of the date of
this document, Ms. Iannone owned 324 shares of the Registrant's common stock and
held options to purchase 23,900 shares of such stock.
Item 6. Indemnification of Directors and Officers.
Article Five of Greater Bay's articles of incorporation provides that
Greater Bay shall eliminate the liability of its directors for monetary damages
to the fullest extent permissible under
2
<PAGE>
California law. Article Five also provides for the indemnification of agents (as
defined in Section 317 of the California General Corporation Law) of Greater
Bay. If agents of Greater Bay breach a duty to Greater Bay and its shareholders,
then Article Five authorizes Greater Bay, to the extent permissible under
California Law, to indemnify such agents in excess of the indemnification
expressly permitted by such Section 317.
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 Greater Bay in such capacity with respect to any
other corporation, partnership, joint venture, trust or other enterprise.
Section 317 mandates Greater Bay's indemnification of agents where the agent's
defense is successful on the merits. In other cases, Section 317 allows Greater
Bay to indemnify agents for expenses (including amounts paid to defend, settle
or otherwise dispose of a threatened or pending action) if the indemnification
is authorized by (1) a majority vote of a quorum of Greater Bay's Board of
Directors consisting of directors who are not party to the proceedings; (2)
approval of the shareholders, with the shares owned by the person to be
indemnified not being entitled to vote thereon; or (3) the court in which the
proceeding is or was pending upon application by certain designated parties.
Under certain circumstances, Greater Bay can indemnify an agent even when the
agent is found liable. Section 317 also allows Greater Bay to advance expenses
to its agents for certain actions upon receiving an undertaking by the agent
that he or she will reimburse Greater Bay 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.
To the extent that 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, Greater Bay
understands that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable. If 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 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 7. Not applicable.
Item 8. Exhibits
Exhibit No. Exhibit
----------- -------
2.1 Agreement and Plan of Reorganization by and between Greater
Bay Bancorp and Mt. Diablo Bancshares dated September 15,
1999./1/
4.1 Rights Agreement./2/
4.2 Junior Subordinated Indenture dated as of March 31, 1997
between Greater Bay Bancorp and Wilmington Trust Company, as
Trustee./3/
4.3 Officers' Certificate and Company Order, dated March 31,
1997./3/
3
<PAGE>
4.4 Certificate of Trust of GBB Capital I./4/
4.5 Trust Agreement of GBB Capital I dated as of February 28,
1997./4/
4.6.1 Amended and Restated Trust Agreement of GBB Capital I, among
Greater Bay Bancorp, Wilmington Trust Company and the
Administrative Trustees named therein dated as of March 31,
1997./3/
4.6.2 Appointment of Successor Administrative Trustee and First
Amendment to Amended and Restated Agreement./1/
4.7 Trust Preferred Certificate of GBB Capital I./3/
4.8 Common Securities Certificate of GBB Capital I./3/
4.9 Guarantee Agreement between Greater Bay Bancorp and Wilmington
Trust Company, dated as of March 31, 1997./3/
4.10 Agreement as to Expenses and Liabilities, dated as of March 31,
1997./3/
4.11 Form of Subordinated Debentures./5/
4.12 Supplemental Debenture Agreement of Cupertino National Bancorp
dated as of November 22, 1996./4/
4.13 Supplemental Debenture Agreement dated November 27, 1996 between
Cupertino National Bancorp and Mid-Peninsula Bancorp./4/
4.14 Supplemental Debenture Agreement, dated as of March 27, 1997./3/
4.15 Indenture between Greater Bay Bancorp and Wilmington Trust
Company, as Debenture Trustee, dated as of August 12, 1998./6/
4.16 Form of Exchange Junior Subordinated Debentures (filed as Exhibit
A to Exhibit 4.15 hereto).
4.17 Certificate of Trust of GBB Capital II, dated as of May 18,
1998./6/
4.18 Amended and Restated Trust Agreement of GBB Capital II, among
Greater Bay Bancorp, Wilmington Trust Company and the
Administrative Trustees named therein dated as of August 12,
1998./6/
4.19 Form of Exchange Capital Security Certificate (filed as Exhibit
A-1 to Exhibit 4.18 hereto).
4.20 Common Securities Guarantee Agreement of Greater Bay Bancorp,
dated as of August 12, 1998./6/
4.21 Liquidated Damages Agreement among Greater Bay Bancorp, GBB
Capital II, and Sandler O'Neill and Partners, L.P., dated as of
August 7, 1998./6/
4
<PAGE>
4.22 Series B Capital Securities Guarantee Agreement between Greater
Bay Bancorp and Wilmington Trust Company, dated as of November
27, 1998./1/
4.23 Registration Rights Agreement between Greater Bay Bancorp and The
Leo K. W. Lum PRB Revocable Trust dated May 8, 1998./7/
4.24 Securities Purchase Agreement, dated as of December 21, 1999,
between the Registrant and the investors identified therein./8/
4.25 Registration Rights Agreement, dated as of December 22, 1999,
between the Registrant and the investors identified therein./8/
5.1 Opinion of Linda M. Iannone, General Counsel of Greater Bay
Bancorp.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Linda M. Iannone (included in Exhibit 5.1).
24.1 A power of attorney is set forth on the signature page of the
Registration Statement.
99.1 Mt. Diablo Bancshares 1992 Stock Option Plan, as amended and
assumed by Greater Bay Bancorp
99.2 Form of Assumption Option Agreement for Mt. Diablo Bancshares
1992 Stock Option Plan, as amended and assumed by Greater Bay
Bancorp
_____________________
1. Incorporated by reference from Greater Bay Bancorp's Current Report on Form
8-K filed with the SEC on September 21, 1999.
2. Incorporated by reference from Greater Bay Bancorp's Form 8-A12G filed with
the SEC on November 25, 1998.
3. Incorporated by reference from Greater Bay Bancorp's Current Report on Form
8-K dated June 5, 1997.
4. Incorporated by reference from Greater Bay Bancorp's Registration Statement
on Form S-1 (File No. 333-22783) dated March 5, 1997.
5. Incorporated by reference from Exhibit 1 of Cupertino National Bancorp's
Form 8-K filed with the SEC on October 25, 1995.
6. Incorporated by reference from Greater Bay Bancorp's Current Report on Form
8-K filed with the SEC on August 28, 1998.
7. Incorporated by reference from Greater Bay Bancorp's Current Report on Form
8-K filed with the SEC on May 20, 1998.
8. Incorporated by reference from Greater Bay Bancorp's Current Report on Form
8-K filed with the SEC on December 28, 1999.
5
<PAGE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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; and
(c) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs 1(a) and 1(b) do not apply if the
-------- -------
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
2. that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13 or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised 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 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
6
<PAGE>
with the securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements of filing of Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Palo Alto, State of California on February 17,
2000.
GREATER BAY BANCORP
By /s/ David L. Kalkbrenner
------------------------
David L. Kalkbrenner,
President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David L. Kalkbrenner and Steven C. Smith, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement, and to file the same with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully 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 date indicated.
Signature Title Date
--------- ----- ----
/s/ David L. Kalkbrenner President and Chief February 17, 2000
------------------------
David L. Kalkbrenner Executive Officer
(Principal Executive
Officer), Director
/s/ Steven C. Smith Executive Vice President, February 17, 2000
------------------------
Steven C. Smith Chief Administrative
Officer and Chief Financial
Officer (Principal
Financial Officer,
Principal Accounting
Officer)
8
<PAGE>
/s/ George R. Corey Director February 17, 2000
-------------------
George R. Corey
___________________ Director
John M. Gatto
/s/ James E. Jackson Director February 17, 2000
--------------------
James E. Jackson
/s/ Stanley A. Kangas Director February 17, 2000
---------------------
Stanley A. Kangas
/s/ Rex D. Lindsay Director February 17, 2000
------------------
Rex D. Lindsay
/s/ George M. Marcus Director February 17, 2000
--------------------
George M. Marcus
/s/ Duncan L. Matteson Director February 17, 2000
----------------------
Duncan L. Matteson
/s/ Rebecca Morgan Director February 17, 2000
------------------
Rebecca Q. Morgan
/s/ Glen McLaughlin Director February 17, 2000
-------------------
Glen McLaughlin
/s/ Dick J. Randall Director February 17, 2000
-------------------
Dick J. Randall
_________________ Director
Donald H. Seiler
/s/ Warren R. Thoits Director February 17, 2000
--------------------
Warren R. Thoits
9
<PAGE>
Exhibit 5.1
February 17, 2000
Greater Bay Bancorp
2860 West Bayshore Road
Palo Alto, California 94303
Re: Greater Bay Bancorp 2000 Mt. Diablo Bancshares 1992 Continuation
Stock Option Plan (the "Plan")
Ladies and Gentlemen:
As General Counsel of Greater Bay Bancorp (the "Company"), at your
request, I have examined the Registration Statement on Form S-8 (the
"Registration Statement") being filed by the Company with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended, of up to 96,197 shares of the Company's common stock, no
par value (the "Shares"), that may be issued in the aggregate under the Plan.
In rendering this opinion, I have examined and reviewed only such
questions of law as I have deemed necessary or appropriate for the purpose of
rendering the opinions set forth herein. For the purpose of rendering the
opinions set forth herein, I have been furnished with and examined only the
following documents:
1. The Articles of Incorporation of the Company, as amended.
2. The Bylaws of the Company, as amended.
3. The Registration Statement.
4. Records of proceedings of the Board of Directors of the Company
and Mt. Diablo Bancshares ("Mt. Diablo") pertaining to the Plan.
5. Records of proceedings of the shareholders of Mt. Diablo
pertaining to the Plan.
6. The Agreement and Plan of Reorganization, dated September 15,
1999, by and between the Company and Mt. Diablo.
With respect to all of the foregoing documents, I have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to originals of all documents submitted to us as
certified or reproduced copies. I also have obtained from the officers of the
Company certificates as to such factual matters as I consider necessary for the
purpose of this opinion, and insofar as this opinion is based on such matters of
fact, I have relied on such certificates.
<PAGE>
Based upon the foregoing and such further review of fact and law as I
have deemed necessary or appropriate under the circumstances, and assuming,
without further inquiry other than such certificates of officers, that (i) all
options granted under the Plan have been duly and validly granted by Mt. Diablo
pursuant to the terms of the Plan, (ii) the consideration for the shares of
Common Stock issued pursuant to the exercise of such options will be received
prior to the issuance thereof, (iii) the Common Stock issued pursuant to the
exercise of options will be issued in accordance with the terms of the Plan and
the various agreements and (iv) the grant of such options and the issuance of
Shares upon the exercise thereof will comply with the securities laws of each
state or jurisdiction applicable thereto (other than the Securities Act of 1933,
as amended, as to which this opinion is addressed), upon which assumptions the
opinions contained herein are expressly conditioned, I am of the opinion that:
If, as and when the Shares have been issued and sold pursuant to
exercise of options granted under the terms of the Plan, the Shares will be duly
authorized, validly issued, fully paid and non-assessable.
This opinion is issued to you solely for use in connection with the
Registration Statement on Form S-8 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.
This opinion is limited to the current laws of the State of California
and the United States of America, to present judicial interpretations thereof
and to facts as they presently exist. In rendering this opinion, I have no
obligation to revise or supplement it should the current laws of the State of
California or the United States of America be changed by legislative action,
judicial decision or otherwise.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 which is being filed on behalf of the Company
in connection with the registration of the aforementioned Shares under the
Securities Act of 1933, as amended.
Very truly yours,
/s/Linda M. Iannone
Senior Vice President, General Counsel and
Secretary of Greater Bay Bancorp
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 31, 2000 relating to the
consolidated financial statements, which appears in Greater Bay Bancorp's Annual
Report on Form 10-K for the year ended December 31, 1999. We also consent to
the incorporation by reference of our report dated January 31, 2000 relating to
the supplemental consolidated financial statements, which appears in the Current
Report on Form 8-K filed on February 1, 2000.
/s/ PricewaterhouseCoopers LLP
San Francisco, California
February 18, 2000
<PAGE>
Exhibit 99.1
AMENDMENT TO AMENDED AND RESTATED
1992 STOCK OPTION PLAN OF MT. DIABLO NATIONAL BANK,
AS ASSUMED BY MT. DIABLO BANCSHARES
This Amendment to that certain Amended and Restated 1992 Stock Option
Plan of Mt. Diablo National Company, as assumed by Mt. Diablo Bancshares on July
1, 1998 (the "Plan"), is approved and adopted by the Board of Directors of Mt.
Diablo Bancshares effective as of July 16, 1998.
Recitals
--------
A. WHEREAS, on July 16, 1998, the Board of Directors of Mt. Diablo
Bancshares, a California corporation (the "Corporation"), approved and adopted
the Plan to replace the Stock Option Plan of Mt. Diablo National Company, a
national banking association (the "Bank") after the Bank became a wholly owned
subsidiary of the Corporation on June 30, 1998 (the "Reorganization");
B. WHEREAS, the Board desires to modify the Plan to clarify that the
Plan covers both employees of the Corporation and employees of the Bank as set
forth herein;
AMENDMENT
1. Paragraph 1 is amended to read as follows:
"1. Purpose.
The purpose of the 1992 Stock Option Plan (the "Plan") is to provide a
means whereby selected officers, directors, organizers, and key, full-time,
salaried employees of the Company and the Company may be given an opportunity to
purchase Common Stock."
2. All other terms of the Plan shall remain the same.
<PAGE>
AMENDED AND RESTATED 1992 STOCK OPTION PLAN
OF MT. DIABLO NATIONAL BANK, AS ASSUMED BY MT. DIABLO BANCSHARES
RECITALS
--------
A. WHEREAS, on October 6, 1992, the Board of Directors of Mt. Diablo
National Bank, a national banking association (the "Bank") adopted the Mt.
Diablo National Bank 1992 Stock Option Plan (the "Original Plan");
B. WHEREAS, pursuant to the February 28, 1998 Plan of Reorganization and
Merger Agreement approved by the Bank's shareholders on May 14, 1998, the Bank
was reorganized into a wholly-owned subsidiary of Mt. Diablo Bancshares, a
California corporation (the "Company"), which reorganization was effective as of
June 30, 1998 (the "Reorganization");
C. As a result of the Reorganization, all outstanding shares of $5.00 par
value Bank common stock ("Bank Common Stock") have been automatically converted
into shares of no par value Company common stock (the "Common Stock"), at an
exchange rate of 1:1.5;
D. WHEREAS, pursuant to the Reorganization, the Company has assumed the
Bank's obligations under the Original Plan; and
E. WHEREAS, as a result of the Reorganization the Original Plan must be
modified so that it allows for the granting of options to purchase Company
Common Stock rather than Bank Common Stock.
THEREFORE, the Original Plan is amended and restated to read in full
as follows:
<PAGE>
1. Purpose.
-------
The purpose of the 1992 Stock Option Plan (the "Plan") is to provide a
means whereby selected officers, directors, organizers and key, full-time,
salaried employees of the Company may be given an opportunity to purchase Common
Stock.
2. Stock Options.
-------------
Stock options granted pursuant to the Plan may, at the discretion of
the Company's Board of Directors (the "Board"), be granted either as Incentive
Stock Options ("ISO") or as Nonstatutory Stock Options ("NSO"). An ISO shall
mean an option described in Section 422 of the Code. A NSO shall mean an option
not described in Sections 422 or 423(b) of the Code. Except as provided in
Section 4(b) of the Plan, no option may be granted alternatively as an ISO and
as a NSO.
3. Administration.
--------------
(a) The Board of Directors, whose authority shall be plenary, shall
administer the Plan unless and until such time as the Board delegates
administration of the Plan pursuant to subsection 3(c).
(b) The Board, whose determinations shall be conclusive, shall have
the power, subject to and within the limits of the express provisions of the
Plan:
(1) To grant options pursuant to the Plan.
(2) To determine from time to time which of the eligible persons
shall be granted options under the Plan, the number of shares for which each
option shall be granted, the term of each granted option and the time or times
during the term of each option within which all or portions of each option may
be exercised (which at the Board's discretion may be accelerated).
(3) To construe and interpret the Plan and options granted under
it, and to establish, amend, and revoke rules and regulations for its
administration. The Board, in the exercise of this power, shall generally
determine all questions of policy and expediency that may arise and may correct
any defect, omission, or inconsistency in the Plan or in any option agreement in
a manner and to the extent it shall deem necessary or expedient to make the Plan
fully effective.
(4) To grant options in exchange for cancellation of options
granted earlier at different exercise prices; provided, however, nothing
contained herein shall empower the Board to grant an ISO under conditions or
pursuant to terms that are inconsistent with the requirements of Section 4(b)
hereinbelow.
(5) To prescribe the terms and provisions of each option granted
(which need not be identical) and the form of written instrument that shall
constitute the option agreement.
(6) To amend the Plan as provided in Section 11.
(7) Generally, to exercise each powers and to perform such acts
as are deemed necessary or expedient to promote the best interest of the
Company.
<PAGE>
(8) To take appropriate action to cause any option granted
hereunder to cease to be an ISO; provided, however, no such action may be taken
by the Board without the prior written consent of the affected optionee.
(c) For grants of options to any person eligible under the Plan, the
Board may, by resolution, delegate administration of the Plan (including,
without limitation, the Board's powers under subsection 3(b) hereinabove) to an
existing committee acting under the authority of the Board. The Board shall have
complete discretion to determine the composition, structure, form, term and
operation of any committee established to administer the Plan (the "Committee").
If administration is delegated to a committee, unless the Board otherwise
provides, the Committee, shall have, in connection with the administration of
the Plan, the powers theretofore possessed by the Board, subject, however, to
such constraints, not inconsistent with the provisions of the Plan, as may be
adopted from time to time by the Board. The Board at any time may revest in the
Board the administration of the Plan.
4. Shares Subject to Plan and to Options.
-------------------------------------
(a) Subject to the provisions of Section 9 (relating to adjustments
upon changes in stock), the stock which may be sold pursuant to options granted
under the Plan shall not exceed in the aggregate a number of shares equal to
thirty percent (30%) of the Company's issued and outstanding Common Stock. If
any options granted under the Plan shall for any reason terminate or expire
without having been exercised in full, the stock not purchased under such
options shall be available again for the purposes of the Plan.
(b) The aggregate fair market value of the stock (determined at the
time of the grant of the option) for which any employee may exercise ISOs for
the first time in any calendar year under all plans of the company and its
parent and subsidiary shall not exceed $100,000 plus any unused limit carryover
(as defined in the Code) to such year or any other maximum aggregate fair market
value to be established in the future under the Code. Should it be determined
that any ISO granted under the Plan inadvertently exceeds such maximum, such ISO
grant shall be deemed to be a grant of a NSO to the extent, but only to the
extent, of such excess.
5. Eligibility.
-----------
Persons eligible for participation in the Plan (the "Participants") shall
be selected by the Board or the Committee. Directors and organizers of the
Company who are not also employees of the Company shall not be eligible for an
ISO. No ISO may be granted to a person who, at the time of grant, owns stock
possessing more than 10% of the total combined voting power of the Company or
its parent or any subsidiary unless the option price is at least 110% of the
fair market value of the stock subject to the option and the term of the option
does not exceed five (5) years from the date such ISO is granted. Any employee
may hold more than one option at any time.
6. Terms of Option Agreement.
-------------------------
Each option agreement shall be in such form and shall contain such terms
and conditions as the Board or its delegate from time to time deem appropriate,
subject to the following limitations:
(a) The term of any ISO shall not be greater than ten (10) years from
the date it was granted.
<PAGE>
(b) The purchase price of each ISO and NSO shall be not less than the
fair market value of the stock subject to the ISO or NSO on the date the ISO or
NSO is granted.
(c) An ISO by its terms shall not be transferable otherwise than by
will or the laws of descent and distribution and may be exercisable during the
lifetime of the option holder only by the option holder.
(d) The option shall vest upon such vesting schedule as the Board in
its sole discretion may fix.
(e) An option (the "New Option") which is designated by the Board or
its delegate, as the case may be, as an ISO by its terms shall not be
exercisable, notwithstanding that such may be vested in whole or in part, with
respect to all or any part of the shares subject thereto while there is
outstanding any other ISO, granted to the optionee prior to the grant of the New
Option, to purchase Common Stock in the Company or in a corporation that is, at
the time of granting of the New Option, a parent or subsidiary of the Company,
or in a predecessor corporation of any such corporations. For purposes of the
preceding sentence, an ISO shall be treated as "outstanding" until such option
is exercised in full or expires by reason of the lapse of time.
(f) Upon the termination of an officer or employee Participant's
employment, his rights to exercise an option then held by him shall be limited
to the following:
DEATH OR DISABILITY: If a Participant's employment or Board Membership is
terminated by death or disability, he or his estate, as the case may be,
shall have the right for a period of twelve (12) months following the date
of death or disability to exercise the option to the extent the Participant
was entitled to exercise such option on the date of his death or
disability, or to the extent otherwise specified by the Board, which may so
specify, at a time that is subsequent to the date of his death or
disability, provided the actual date of exercise is in no event after the
expiration of the term of the option. A Participant's estate shall mean
his legal representative or any person who acquires the right to exercise
an option by reason of the Participant's death or disability.
MISCONDUCT: If a Participant is determined by the Board of Directors or
the Committee to have committed an act of theft, embezzlement, fraud,
dishonesty, a breach of fiduciary duty to the Company, or deliberately
disregarded the rules of the Company which resulted in loss, damage or
injury to the Company, or if a Participant makes any unauthorized
disclosure of any of the trade secrets or confidential information of the
Company, engages in any conduct which constitutes unfair competition with
the Company, induces any customer of the Company to breach any contract
with the Company or induces any principal for whom the Company acts as
agent to terminate such agency relationship, neither the Participant nor
his estate shall be entitled to exercise any option with respect to any
shares whatsoever after termination of employment, whether or not after
termination of employment, the Participant receives any other payment,
compensation or benefits from the Company. In making such determination,
the Board of Directors shall give the Participant an opportunity to present
to the Board or the Committee evidence on his behalf. For the purpose of
this paragraph of this subsection 6(e), termination of employment shall be
deemed to occur when the Company dispatches notice or advice to Participant
that his employment is terminated. The term "Company" in subsections 6(e)
and 6(h) shall include the Company and its affiliates.
OTHER REASONS: If a Participant's employment or Board Membership is
terminated for any reason other than those mentioned above under "Death or
Disability" or "Misconduct," he or his estate may, within ninety (90) days
following such termination,
<PAGE>
exercise the option to the extent such option was exercisable by the
Participant on the date of termination of his employment, or to the extent
otherwise specified by the Board, which may so specify at a time that is
subsequent to the date of the termination of his employment, provided the
date of exercise is in no event after the expiration of the term of the
option.
(g) In the event of sale, dissolution or liquidation of the
Company or a merger or consolidation in which the Company is not the surviving
or resulting corporation, the Board of Directors shall have the power to cause
the termination of every option outstanding hereunder, except that the surviving
or resulting corporation may, in its absolute and uncontrolled discretion,
tender an option or options to purchase its shares and otherwise; provided,
however, that in all events the optionee shall have the right immediately prior
to such sale, dissolution, liquidation, merger or consolidation in which the
Company is not the surviving or resulting corporation, to exercise his option
and purchase shares subject thereto to the extent of any unexercised portion of
his option, regardless of any contrary vesting provisions. This right of
exercise shall be conditioned upon the completion of such dissolution or
liquidation or merger or consolidation.
In the event of an offer by any person or entity to all shareholders
of the Company to purchase any or all shares of Common Stock of the Company (or
shares of stock or other securities which shall be substituted for such shares
or to which such shares shall be adjusted as provided in Section 9 hereof), any
Participant under this Plan shall have the right upon receipt of such offer to
exercise his or her option and purchase shares subject thereto to the extent of
any unexercised or unvested portion of such option.
The grant of an option pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes or its capital or business structure or to merge or
to consolidate or to dissolve, liquidate or sell, or transfer all or any part of
its business or assets.
(h) Options may also contain such other provisions, which shall
not be inconsistent with any of the foregoing terms, as the Board of Directors
shall deem appropriate. No option, however, nor anything contained in the Plan,
shall confer upon any employee any right to continue in the employ of the
Company or limit in any way the right of the Company to terminate his employment
at any time.
7. Payments.
--------
(a) To the extent the right to purchase shares has vested under
a Participant's stock option agreement, options may be exercised at the time set
forth in the option agreement by delivering payment in full at the option price
for the number of shares being purchased by cash, certified check, official bank
check or the equivalent thereof acceptable to the Company. Such payment shall be
accompanied by written notice to the Secretary of the Company identifying the
option or part thereof being exercised and specifying the number of shares for
which payment is being tendered. The Company shall deliver or cause to be
delivered to the optionee, which delivery shall be not less than fifteen (15)
days and not more than sixty (60) days after the giving of such notice, without
transfer or issue tax to the optionee (or other person entitled to exercise the
option) at the principal office of the company, or such other place as shall be
mutually acceptable, a certificate or certificates for such shares dated the
date the options were validly exercised; provided, however, that the time of
such delivery may be postponed by the Company for such period as may be required
for it with reasonable diligence to comply with any requirements of law. If an
option covers incentive and nonstatutory stock
<PAGE>
options, separate stock certificates shall be issued; one or more for stock
acquired upon exercise of the ISOs and one or more for the stock acquired upon
exercise of the NSOs.
(b) Where in the opinion of counsel to the Company, the Company
has or will have a legal obligation to withhold taxes relating to the exercise
of any stock option, such option may not be exercised, in whole or in part,
unless such tax obligation is first satisfied in a manner satisfactory to the
Company.
8. Use of Proceeds from Stock.
--------------------------
Proceeds from the sale of stock pursuant to options granted under the
Plan shall be used for general corporate purposes.
9. Adjustments of and Changes in the Stock.
---------------------------------------
In the event that the shares of Common Stock of the Company, as
presently constituted, shall be changed into or exchanged for a different number
or kind of shares of stock or other securities of the Company or of another
corporation (whether by reason of merger, consolidation, recapitalization,
reclassification, split-up, combination of shares, or otherwise), or if the
number of shares of Common Stock of the Company shall be increased through the
payment of a stock dividend, or a stock split, then there shall be substituted
for or added to each share of Common Stock of the Company theretofore
appropriated or thereafter subject or which may become subject to an option
under the Plan, the number and kind of shares of stock or other securities into
which each outstanding share of Common Stock of the Company shall be so changed,
or for which each such share shall be exchanged or to which each such share
shall be entitled, as the case may be. Outstanding options shall also be amended
as to price and other terms if necessary to reflect the foregoing events. In the
event there shall be any other change in the number or kind of the outstanding
shares of Common Stock of the Company, or of any stock or other securities into
which such Common Stock of the Company, or of any stock or other securities into
which such Common Stock shall have changed, or for which it shall have been
exchanged, then if the Board of Directors shall, in its sole discretion,
determine that such change equitably requires an adjustment in any option
theretofore granted or which may be granted under the Plan, such adjustment
shall be made in accordance with such determination. No right to purchase
fractional shares shall result from any adjustment in options pursuant to this
Section 9. In case of any such adjustment, the shares subject to the option
shall be rounded down to the nearest whole share. Notice of any adjustment shall
be given by the Company to each holder of an option which shall have been so
adjusted and such adjustment (whether or not such notice is given) shall be
effective and binding for all purposes of the Plan.
10. Amendment of the Plan.
---------------------
The Board at any time, and from time to time, may amend the Plan,
subject to approval by the vote or written consent of a majority of the
outstanding shares of the Company entitled to vote, within twelve (12) months
before or after the date of such amendment's adoption, where such amendment
will:
(a) increase the number of shares reserved for options under the Plan;
(b) materially increase the benefits accruing to Participants under the
Plan; or
(c) materially modify the requirements of Section 5 as to eligibility for
participation in the Plan.
It is expressly contemplated that the Board may amend the Plan in any
respect necessary to provide the Company's employee Participants with the
maximum benefits provided
<PAGE>
or to be provided under Section 422 of the Code and the regulations promulgated
thereunder relating to employee incentive stock options and/or to bring the Plan
or options granted under it into compliance therewith.
Rights and obligations under any option granted before any amendment
of the Plan shall not be altered or impaired by amendment of the Plan, except
with the consent, which may be obtained in any manner deemed by the Board to be
appropriate, of the person to whom the option was granted.
11. Termination or Suspension of the Plan.
-------------------------------------
The Board at any time may suspend or terminate the Plan. The Plan,
unless sooner terminated, shall terminate at the end of ten (10) years from the
date the Original Plan was adopted by the Bank's Board of Directors (October 6,
1992). An option may not be granted under the Plan while the Plan is suspended
or after it is terminated.
Rights and obligations under any option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the option was granted,
which may be obtained in any manner that the Board deems appropriate.
12. Listing, Qualification or Approval of Stock, Approval of Options.
----------------------------------------------------------------
All options granted under the Plan are subject to the requirement that
if at any time the Board of Directors shall determine in its discretion that the
listing or qualification of the shares of stock subject thereto on any
securities exchange or under any applicable law, or the consent or approval by
any governmental regulatory body or the shareholders of the Company, is
necessary or desirable as a condition of or in connection with the issuance of
shares under the option, the option may not be exercised in whole or in part
unless such listing, qualification, consent or approval shall have been effected
or obtained free of any condition not acceptable to the Board of Directors.
13. Binding Effect of Conditions.
----------------------------
The conditions and stipulations hereinabove contained or in any option
granted pursuant to the Plan shall be and constitute a covenant running with all
of the shares of the Company owned by the Participant at any time, directly or
indirectly whether the same have been issued or not, and those shares of the
Company owned by the Participant shall not be sold, assigned or transferred by
any persons save and except in accordance with the terms and conditions herein
provided, and the Participant shall agree to use his best efforts to cause the
officers of the Company to refuse to record on the books of the Company any
assignments or transfer made or attempted to be made except as provided in the
Plan and to cause said officers to refuse to cancel old certificates or to issue
or deliver new certificates therefor where the purchaser or assignee has
acquired certificates for the stock represented thereby, except strictly in
accordance with the provisions of this Plan.
14. Effective Date of Plan.
----------------------
The Original Plan became effective on October 1992.
<PAGE>
15. Privileges of Stock Ownership; Securities Law Compliance;
----------------------------------------------------------
Notice of Sale.
--------------
No optionee shall be entitled to the privileges of stock ownership as
to any shares not actually issued and delivered to the optionees. No shares
shall be purchased upon the exercise of any option unless and until any then
applicable requirements of any regulatory agencies having jurisdiction and of
any exchanges upon which the Common Stock of the Company may be listed shall
have been fully complied with. The Company shall diligently endeavor to comply
with all applicable securities laws before any options are granted under the
Plan and before shares are issued pursuant to the exercise of such options.
16. Indemnification.
---------------
To the extent permitted by applicable law in effect from time to time,
no member of the Board of Directors or the Committee shall be liable for any
action or omission of any other member of the Board of Directors or Committee
nor for any act or omission on the member's own part, excepting only the
member's own willful misconduct or gross negligence. The Company shall pay
expenses incurred by, and satisfy a judgment or fine rendered or levied against,
a present or former director or member of the Committee in any action against
such person (whether or not the Company is joined as a party defendant) to
impose a liability or penalty on such person for an act alleged to have been
committed by such person while a director or member of the Committee arising
with respect to the Plan or administration thereof or out of membership on the
Committee or by the Company, or all or any combination of the preceding so long
as the Director or Committee member was acting in good faith, within what such
director or Committee member reasonably believed to have been within the scope
of his or her employment or authority and for a purpose which he or she
reasonably believed to be in the best interests of the Company or its
shareholders. Payments authorized hereunder include amounts paid and expenses
incurred in settling any such action or threatened action. This section does
not apply to any action instituted or maintained in the right of the Company by
a shareholder or holder of a voting trust certificate representing shares of the
Company. The provisions of this section shall apply to the estate, executor,
administrator, heirs, legatees or devises of a director or Committee member, and
the term "person" as used in this section shall include the estate, executor,
administrator, heirs, legatees, or devises of such person.
<PAGE>
17. Miscellaneous.
-------------
The use of any masculine pronoun or similar term is intended to be
without legal significance as to gender.
<PAGE>
Exhibit 99.2
FORM OF ASSUMPTION AND MODIFICATION OF
MT. DIABLO BANCSHARES
STOCK OPTION AGREEMENT
Date: __________________, 2000
Parties: Greater Bay Bancorp, a California corporation ("GBB") and
_____________________, Optionee
RECITALS:
A. GBB and Mt. Diablo Bancshares ("MDB") have entered into an Agreement
and Plan of Reorganization (the "Reorganization Agreement"), dated as of
September 15, 1999, which provides for the merger of MDB with and into GBB.
B. Section 7.9 of the Reorganization Agreement provides as follows:
"7.9 Stock Options.
(a) At and as of the Effective Time of the Merger, GBB shall
assume each and every outstanding option to purchase shares of MDB Stock
("MDB Stock Option") and all obligations of MDB under the MDB Stock Option
Plan. Each and every MDB Stock Option so assumed by GBB under this
Agreement shall continue to have, and be subject to, the same terms and
conditions set forth in the MDB Stock Option Plan and in the other
documents governing such MDB Stock Option immediately prior to the
Effective Time of the Merger, except that: (i) such MDB Stock Option shall
be exercisable for that number of whole shares of GBB Stock equal to the
product of (A) the number of shares of MDB Stock that were purchasable
under such MDB Stock Option immediately prior to the Effective Time of the
Merger multiplied by (B) the Conversion Ratio, with such product rounded
down to the nearest whole number of shares of GBB Stock; and (ii) the per
share exercise price for the shares of GBB Stock issuable upon exercise of
such MDB Stock Option shall be equal to the quotient determined by dividing
(A) the exercise price per share of MDB Stock at which such MDB Stock
Option was exercisable immediately prior to the Effective Time of the
Merger by (B) the Conversion Ratio. At the Effective Time of the Merger or
as soon as practicable thereafter, GBB shall issue to each holder of an
outstanding MDB Stock Option a document evidencing the assumption of such
MDB Stock Option by GBB pursuant to this Section 7.9.
(b) GBB shall use its commercially reasonable best efforts to
comply with the terms of the MDB Stock Option Plan and insure, to the
extent required by, and subject to the provisions of, such plan, that MDB
Stock Options which qualify as incentive stock options prior to the
Effective Time of the Merger qualify as incentive stock options of GBB
after the Effective Time of the Merger.
(c) At or prior to the Effective Time of the Merger, GBB shall
take all corporate action necessary to reserve for issuance a sufficient
number of shares of GBB Stock for delivery upon exercise of GBB Stock
Options assumed by it in accordance with this Section 7.9. At the
Effective Time of the Merger, or as soon as practicable thereafter, GBB
shall, if necessary, file a registration statement on Form S-8 (or any
<PAGE>
successor or other appropriate form) with respect to the shares of GBB
Stock subject to such options and shall use all reasonable efforts to
maintain the effectiveness of such registration statement (and maintain the
current status of the prospectus or prospectuses contained therein) for so
long as such options remain outstanding."
C. The term "Effective Time," as used herein, shall mean the Effective
Time of the Merger as such term is defined in the Agreement. The Effective Time
occurred on January 31, 2000.
D. This Assumption and Modification of Mt. Diablo Bancshares Stock Option
Agreement (the "Assumption Option Agreement") sets forth the assumption by GBB
of the MDB stock options held by Optionee under the MDB 1992 Stock Option Plan
("MDB Plan"), as converted to options to purchase shares of GBB common stock
("GBB Stock"), as provided in Section 7.9 of the Agreement. Your MDB stock
options will continue to be governed by the terms of the MDB Plan, as modified
by this Assumption Option Agreement.
<PAGE>
AGREEMENT:
FOR VALUABLE CONSIDERATION, the parties agree as follows:
1. Assumption of Options. All options to purchase MDB Stock under
---------------------
the stock option agreement between you and MDB, dated ________, 199_, as amended
on _______, 199_ (the "Old Agreement") that were unexercised immediately prior
to the Effective Time are hereby assumed as of the Effective Time, except that,
and in accordance with the terms of the Reorganization Agreement, the Optionee
shall have immediately after the Effective Time the right and option (the "New
Option") to purchase on the terms and conditions hereinafter set forth all or
any part of an aggregate of _________ shares (the "GBB Shares") of GBB Stock at
an exercise price of $__________ per share.
2. Terms Governing New Options. The terms and conditions governing
---------------------------
the New Option shall be those terms and conditions set forth in the Old
Agreement with the exceptions set forth in Section 1 above and the following
revisions:
(a) The title of the Old Agreement is hereby changed to the title of
this Assumption Option Agreement.
(b) Unless indicated to the contrary herein, all references in the
Old Agreement to the Company, the option, the shares, and the stock are hereby
changed to references to GBB, the New Option, the GBB Shares and GBB Stock,
respectively.
(c) Immediately after the Effective Time, the New Option will be
immediately exercisable, without regard to the vesting schedule contained in the
Old Agreement.
(d) The New Option shall be treated as having been granted on the
date of grant set forth in the Old Agreement.
3. Method of Agreement; Old Agreement attached. This Assumption
-------------------------------------------
Option Agreement is addressed to the Optionee and shall not become effective
until the Effective Time occurs and the Optionee executes this agreement below
and returns one copy to GBB, thereby acknowledging that he has received, read
and agreed to all the terms and conditions of this Assumption Option Agreement.
A copy of the Old Agreement is attached hereto.
Executed as of the day and year first above written.
GREATER BAY BANCORP
By:______________________
Steven C. Smith
Executive Vice President, Chief
Administrative Officer and Chief
Financial Officer
AGREED:
___________________________
Optionee Signature
___________________________
Print Name
