Exhibit 4.3
Resale Registration Rights Agreement
among
Greater Bay Bancorp,
Xxxxxx Brothers Inc.
and
Sandler X'Xxxxx & Partners, L.P.
Dated as of April 24, 2002
TABLE OF CONTENTS
Page
----
1. Definitions............................................................ 1
2. Shelf Registration..................................................... 4
3. Additional Amounts..................................................... 5
4. Registration Procedures................................................ 6
5. Registration Expenses..................................................13
6. Indemnification and Contribution.......................................14
7. Rule 144A..............................................................17
8. Participation in Underwritten Registrations............................17
9. Selection of Underwriters..............................................17
10. Miscellaneous..........................................................18
Resale Registration Rights Agreement, dated as of April 24, 2002,
among Greater Bay Bancorp, a California corporation (together with any successor
entity, herein referred to as the "Issuer"), and Xxxxxx Brothers Inc. and
Sandler X'Xxxxx & Partners, L.P. (the "Initial Purchasers").
Pursuant to the Purchase Agreement, dated April 18, 2002, between the
Issuer and the Initial Purchasers (the "Purchase Agreement"), the Initial
Purchasers have agreed to purchase from the Issuer up to $375,452,000 aggregate
principal amount at maturity of Zero Coupon Senior Convertible Contingent Debt
Securities (the "CODES") (including $62,575,000 aggregate principal amount if
the initial purchasers exercise their option to purchase additional CODES, as
set forth in the Purchase Agreement). The CODES initially will be convertible
into fully paid, nonassessable common stock, no par value per share, of the
Issuer (the "Common Stock") on the terms, and subject to the conditions, set
forth in the Indenture (as defined herein). To induce the Initial Purchasers to
purchase the CODES, the Issuer has agreed to provide the registration rights set
forth in this Agreement pursuant to the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
Additional Amounts: As defined in Section 3(a) hereof.
Additional Amounts Payment Date: Each April 23 and October 23,
commencing October 23, 2002.
Agreement: This Resale Registration Rights Agreement, as amended,
modified or otherwise supplemented from time to time in accordance with the
terms hereof.
Applicable Amount: With respect to each $1,000 principal amount at
maturity of CODES, the sum of the initial issue price of such CODES
($639.23) plus accreted issue discount with respect to such CODES through
the date of determination; provided, that if no CODES are outstanding at
the time of determination, the Applicable Amount shall be calculated as if
the CODES were then outstanding; provided, further, that in respect of any
CODES that have been converted into Common Stock, the Applicable Amount
shall be based on the principal amount at maturity of the CODES so
converted.
Blue Sky Application: As defined in Section 6(a) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: A day other than a Saturday or Sunday or any day on
which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.
Closing Date: The date of this Agreement.
CODES: As defined in the preamble hereto.
Commission: Securities and Exchange Commission.
Common Stock: As defined in the preamble hereto.
Effectiveness Period: As defined in Section 2(a)(iii) hereof.
Effectiveness Target Date: As defined in Section 2(a)(ii) hereof.
Exchange Act: Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder.
Holder: A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of April 24, 2002, between the
Issuer and Wilmington Trust Company, as trustee (the "Trustee"), pursuant
to which the CODES are to be issued, as such Indenture is amended, modified
or supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Issuer: As defined in the preamble hereto.
Majority of Holders: Holders holding more than 50% of the aggregate
principal amount at maturity of CODES outstanding; provided that, for
purpose of this definition, a holder of shares of Common Stock which
constitute Transfer Restricted Securities when issued upon conversion of
the CODES shall be deemed to hold an aggregate principal amount at maturity
of CODES (in addition to the principal amount at maturity of CODES held by
such holder) equal to $1,000 times the quotient of (x) the number of such
shares of Common Stock received upon conversion of the CODES and then held
by such holder and (y) the prevailing conversion rate, such prevailing
conversion rate as determined in accordance with the Indenture.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, unincorporated
organization, limited liability company, trust, joint venture or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Shelf Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
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Questionnaire: As defined in Section 2(b) hereof.
Questionnaire Deadline: As defined in Section 2(b) hereof.
Record Holder: With respect to any Additional Amounts Payment Date,
each Person who is a Holder on the record date with respect to such
Additional Amounts Payment Date, which record date shall be the date that
is the 15/th/ day preceding the relevant Additional Amounts Payment Date.
In the case of a Holder of shares of Common Stock issued upon conversion of
CODES, "Record Holder" shall mean each Person who is a Holder of shares of
Common Stock which constitute Transfer Restricted Securities on the 15/th/
day preceding the relevant Additional Amounts Payment Date.
Registration Default: As defined in Section 3(a) hereof.
Sale Notice: As defined in Section 4(d) hereof.
Securities Act: Securities Act of 1933, as amended, and the rules and
resolutions of the Commission thereunder.
Shelf Filing Deadline: As defined in Section 2(a)(i) hereof.
Shelf Registration Statement: As defined in Section 2(a)(i) hereof.
Suspension Notice. As defined in Section 4(c) hereof.
Suspension Period. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the
date the Indenture is qualified under the TIA.
Transfer Restricted Securities: Each CODES and each share of Common
Stock issued upon conversion of CODES until the earlier of:
(i) the date on which such CODES or such share of Common Stock
issued upon conversion thereof has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement;
(ii) the date on which such CODES or such share of Common Stock
issued upon conversion thereof is transferred in compliance with Rule
144 under the Securities Act or may be sold or transferred by a person
who is not an affiliate of the Issuer pursuant to Rule 144 under the
Securities Act (or any other similar provision then in force) without
any volume or manner of sale restrictions thereunder; or
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(iii) the date on which such CODES or such share of Common Stock
issued upon conversion ceases to be outstanding (whether as a result
of redemption, repurchase and cancellation, conversion or otherwise).
Underwritten Registration or Underwritten Offering: A registration in
which CODES of the Issuer are sold to an underwriter for reoffering to the
public.
2. Shelf Registration.
The Issuer shall:
(i) not later than 90 days after the date hereof (the "Shelf
Filing Deadline"), cause to be filed a registration statement pursuant
to Rule 415 under the Securities Act (together with any amendments
thereto, and including any documents incorporated by reference
therein, the "Shelf Registration Statement"), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted
Securities held by Holders that have provided the information required
pursuant to the terms of Section 2(b) hereof;
(ii) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission not
later than 180 days after the date hereof (the "Effectiveness Target
Date"); and
(iii) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the
extent necessary to ensure that it (A) is available for resales by the
Holders of Transfer Restricted Securities entitled to the benefit of
this Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act for a period (the "Effectiveness
Period") of:
(1) two years following the last date of original issuance
of CODES; or
(2) such shorter period that will terminate when (x) all of
the Holders of Transfer Restricted Securities are able to sell
all Transfer Restricted Securities immediately without
restriction pursuant to Rule 144(k) under the Securities Act or
any successor rule thereto, (y) when all Transfer Restricted
Securities have ceased to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise)
or (z) all Transfer Restricted Securities registered under the
Shelf Registration Statement have been sold.
(b) To have its Transfer Restricted Securities included in the Shelf
Registration Statement pursuant to this Agreement, each Holder shall complete
the Selling Securityholder Notice and Questionnaire, the form of which is
contained in Annex A to the Offering Memorandum relating to the CODES (the
"Questionnaire"). The Issuer shall mail the Questionnaire to each Holder not
less than 30 calendar days prior to the time the Issuer intends in good faith to
have the Shelf Registration Statement declared effective by the Commission.
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Holders are required to complete and deliver the Questionnaire to the Issuer
within 20 business days after the Issuer's delivery thereof (the "Questionnaire
Deadline"). Upon receipt of a Questionnaire from a Holder on or prior to the
Questionnaire Deadline, the Issuer shall include such Holder's Transfer
Restricted Securities in the Shelf Registration Statement and the Prospectus. In
addition, promptly upon the request of a Holder given to the Issuer at any time,
the Issuer shall deliver a Questionnaire to such Holder. Notwithstanding the
foregoing, upon receipt of a completed Questionnaire from a Holder who did not
complete and deliver a Questionnaire prior to the Questionnaire Deadline, the
Issuer shall use its reasonable best efforts to file such pre-effective
amendments to the Shelf Registration Statement or supplements to a related
Prospectus as are necessary to permit such Holder to deliver such Prospectus to
transferees of Transfer Restricted Securities; provided that any failure by the
Issuer to file such pre-effective amendments or supplements shall not result in
the payment of Additional Amounts to such Holder; and provided further that the
Issuer will under no circumstances be obligated to file a post-effective
amendment to the Shelf Registration Statement to name such Holder as a selling
securityholder.
(c) Upon receipt of written request for additional information
from the Issuer, each Holder who intends to be named as a selling securityholder
in the Shelf Registration Statement shall furnish to the Issuer in writing,
within 20 Business Days after such Holder's receipt of such request, such
additional information regarding such Holder and the proposed distribution by
such Holder of its Transfer Restricted Securities, in connection with the Shelf
Registration Statement or Prospectus or Preliminary Prospectus included therein
and in any application to be filed with or under state securities law, as the
Issuer may reasonably request. In connection with all such requests for
information from Holders of Transfer Restricted Securities, the Issuer shall
notify such Holders of the requirements set forth in this paragraph regarding
their obligation to provide the information requested pursuant to this Section
2(c). Each Holder as to which the Shelf Registration Statement is being effected
agrees to furnish promptly to the Issuer all information required to be
disclosed in order to make information previously furnished to the Issuer by
such Holder not materially misleading.
3. Additional Amounts.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness
Target Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be
effective or fail to be usable for its intended purpose without
being succeeded within five Business Days by a post-effective
amendment to the Shelf Registration Statement, a supplement to
the Prospectus or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of
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the Exchange Act that cures such failure and, in the
case of a post-effective amendment, is itself immediately
declared effective; or
(iv) (A) prior to or on the 45/th/ or 70/th/ day, as
the case may be, of any Suspension Period, such suspension has
not been terminated or (B) Suspension Periods exceed an
aggregate of 100 days in any 360 day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"Registration Default"), the Issuer hereby agrees to pay additional amounts
("Additional Amounts") with respect to the Transfer Restricted Securities from
and including the day following the Registration Default to but excluding the
day on which the Registration Default has been cured, accruing at a rate:
(A) in respect of the CODES, to each holder of CODES,
(x) with respect to the first 90-day period during which a
Registration Default shall have occurred and be continuing,
equal to 0.25% per annum of the Applicable Amount of the
CODES, and (y) with respect to the period commencing on the
91/st/ day following the day the Registration Default shall
have occurred and be continuing, equal to 0.50% per annum of
the Applicable Amount of the CODES; provided that in no event
shall Additional Amounts accrue at a rate per year exceeding
0.50% of the Applicable Amount of the CODES; and
(B) in respect of any shares of Common Stock, to each
holder of shares of Common Stock issued upon conversion of
CODES, (x) with respect to the first 90-day period in which a
Registration Default shall have occurred and be continuing,
equal to 0.25% per annum of the Applicable Amount of the
converted CODES, and (y) with respect to the period commencing
the 91st day following the day the Registration Default shall
have occurred and be continuing, equal to 0.50% per annum of
the Applicable Amount of the converted CODES; provided that in
no event shall Additional Amounts accrue at a rate per year
exceeding 0.50% of the Applicable Amount of the converted
CODES.
(b) All accrued Additional Amounts shall be paid in arrears
to Record Holders by the Issuer on each Additional Amounts Payment Date by wire
transfer of immediately available funds or by federal funds check. Following the
cure of all Registration Defaults relating to any particular Security or share
of Common Stock, the accrual of Additional Amounts with respect to such Security
or share of Common Stock will cease. The Issuer agrees to deliver all notices,
certificates and other documents contemplated by the Indenture in connection
with the payment of Additional Amounts.
All obligations of the Issuer set forth in this Section 3 that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
The Additional Amounts set forth above shall be the exclusive
monetary remedy available to the Holders of Transfer Restricted Securities for
such Registration Default.
4. Registration Procedures.
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(a) In connection with the Shelf Registration Statement, the
Issuer shall comply with all the provisions of Section 4(b) hereof and shall use
its best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto, shall as expeditiously as
possible prepare and file with the Commission a Shelf Registration Statement
relating to the registration on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Issuer shall:
(i) Subject to any notice by the Issuer in accordance
with this Section 4(b) of the existence of any fact or event
of the kind described in Section 4(b)(iii)(D), use its
reasonable best efforts to keep the Shelf Registration
Statement continuously effective during the Effectiveness
Period; upon the occurrence of any event that would cause the
Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or
(B) not be effective and usable for resale of Transfer
Restricted Securities during the Effectiveness Period, the
Issuer shall file promptly an appropriate amendment to the
Shelf Registration Statement, a supplement to the Prospectus
or a report filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case of
clause (A), correcting any such misstatement or omission, and,
in the case of either clause (A) or (B), use its best efforts
to cause such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as practicable
thereafter. Notwithstanding the foregoing, the Issuer may
suspend the effectiveness of the Shelf Registration Statement
by written notice to the Holders for a period not to exceed an
aggregate of 45 days in any 90-day period (each such period, a
"Suspension Period") if:
(x) an event occurs and is continuing as a result
of which the Shelf Registration Statement would, in the
Issuer's reasonable judgment, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make
the statements therein not misleading; and
(y) the Issuer reasonably determines that the
disclosure of such event at such time would have a
material adverse effect on the business of the Issuer
(and its subsidiaries, if any, taken as a whole);
provided that in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede the Issuer's
ability to consummate such transaction, the Issuer may extend
a Suspension Period from 45 days to 70 days; provided,
however, that Suspension Periods shall not exceed an aggregate
of 100 days in any 360-day period.
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(ii) Prepare and file with the Commission such
amendments and post-effective amendments to the Shelf
Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Effectiveness
Period; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to
comply fully with the applicable provisions of Rules 424 and
430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf
Registration Statement during the applicable period in
accordance with the intended method or methods of distribution
by the sellers thereof set forth in the Shelf Registration
Statement or supplement to the Prospectus; provided, however,
that in no event will such method(s) of distribution take the
form of an underwritten offering without the prior written
agreement of the Issuer.
(iii) Advise the underwriter(s), if any, and selling
Holders promptly (but in any event within five Business Days)
and, if requested by such Persons, to confirm such advice in
writing:
(A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed,
and, with respect to the Shelf Registration Statement or
any post-effective amendment thereto, when the same has
become effective,
(B) of any request by the Commission for
amendments to the Shelf Registration Statement or
amendments or supplements to the Prospectus or for
additional information relating thereto,
(C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf
Registration Statement under the Securities Act or of
the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, or
(D) of the existence of any fact or the happening
of any event, during the Effectiveness Period, that
makes any statement of a material fact made in the Shelf
Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of
any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the
statements therein not misleading.
If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration
Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws,
the Issuer shall use its best efforts to
8
obtain the withdrawal or lifting of such order at the earliest
possible time and will provide to the Initial Purchasers and
each Holder who is named in the Shelf Registration Statement
prompt notice of the withdrawal of any such order.
(iv) Furnish to one counsel for the selling Holders and
each of the underwriter(s), if any, before filing with the
Commission, a copy of the Shelf Registration Statement and
copies of any Prospectus included therein or any amendments or
supplements to the Shelf Registration Statement or Prospectus
(other than documents incorporated by reference after the
initial filing of the Shelf Registration Statement), which
documents will be subject to the review of such holders and
underwriter(s), if any, for a period of at least five Business
Days (in the case of the Shelf Registration Statement and
Prospectus) and two Business Days (in the case of any
amendment or supplement thereto), and the Issuer will not file
the Shelf Registration Statement or Prospectus or any
amendment or supplement to the Shelf Registration Statement or
Prospectus (other than documents incorporated by reference) to
which a selling Holder of Transfer Restricted Securities
covered by the Shelf Registration Statement or the
underwriter(s), if any, shall reasonably object prior to the
filing thereof. A selling Holder or underwriter, if any, shall
be deemed to have reasonably objected to such filing if the
Shelf Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission.
(v) Make available at reasonable times for inspection by
one or more representatives of the selling Holders, designated
in writing by a Majority of Holders whose Transfer Restricted
Securities are included in the Shelf Registration Statement,
any underwriter participating in any distribution pursuant to
the Shelf Registration Statement, and any attorney or
accountant retained by such selling Holders or any of the
underwriter(s), all financial and other records, pertinent
corporate documents and properties of the Issuer as shall be
reasonably necessary to enable them to exercise any applicable
due diligence responsibilities, and cause the Issuer's
officers, directors, managers and employees to supply all
information reasonably requested by any such representative or
representatives of the selling Holders, underwriter, attorney
or accountant in connection with the Shelf Registration
Statement after the filing thereof and before its
effectiveness, provided, however, that any information
designated by the Issuer as confidential at the time of
delivery of such information shall be kept confidential by the
recipient thereof and subject, upon request of the Issuer, to
the execution of a confidentiality agreement that is
reasonable in the context of a registered public offering.
(vi) If requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf
Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including,
without limitation: (1) information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, (2)
information with
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respect to the principal amount of CODES or number of shares of
Common Stock being sold to such underwriter(s), (3) the purchase
price being paid therefor and (4) any other terms of the offering
of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as reasonably
practicable after the Issuer is notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
(vii) Furnish to each selling Holder and each of the
underwriter(s), if any, upon their request, without charge, at
least one copy of the Shelf Registration Statement, as first
filed with the Commission, and of each amendment thereto (and any
documents incorporated by reference therein or exhibits thereto
(or exhibits incorporated in such exhibits by reference) as such
Person may request).
(viii) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; subject to any notice by the Issuer in accordance with
this Section 4(b) of the existence of any fact or event of the
kind described in Section 4(b)(iii) (D), the Issuer hereby
consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the
sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto.
(ix) The Issuer shall:
(A) upon request, furnish to each selling Holder and
each underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings for selling
security holders, upon the date of closing of any sale of
Transfer Restricted Securities in an Underwritten Registration:
(1) a certificate, dated the date of such closing,
signed by the Chief Financial Officer of the Issuer
confirming, as of the date thereof, the matters set forth in
Section 5(g) of the Purchase Agreement and such other
matters as such parties may reasonably request;
(2) opinions, each dated the date of such closing, of
counsel to the Issuer covering such of the matters as are
customarily covered in legal opinions to underwriters in
connection with underwritten offerings of securities; and
(3) customary comfort letters, dated the date of such
closing, from the Issuer's independent accountants (and from
any other accountants whose report is contained or
incorporated by reference in the Shelf Registration
Statement) in the customary form and covering matters
10
of the type customarily covered in comfort letters to
underwriters in connection with underwritten offerings
of securities;
(B) set forth in full in the underwriting
agreement, if any, indemnification provisions and procedures
which provide rights no less protective than those set forth
in Section 6 hereof with respect to all parties to be
indemnified; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the selling Holders pursuant to this
clause (ix).
(x) Before any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue
Sky laws of such jurisdictions in the United States as the
selling Holders or underwriter(s), if any, may reasonably
request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that the Issuer
shall not be required (A) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so
qualified or to take any action that would subject it to the
service of process in any jurisdiction where it is not now so
subject or (B) to subject itself to taxation in any such
jurisdiction if it is not now so subject.
(xi) Cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends
(unless required by applicable securities laws); and enable
such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two Business
Days before any sale of Transfer Restricted Securities made by
such underwriter(s).
(xii) Use its best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S.
governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted
Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any
fact or event contemplated by Section 4(b)(iii)(D) hereof
shall exist or have occurred, use its best efforts to prepare
a supplement or post-effective amendment to the Shelf
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to
state any material fact required to be
11
stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not
misleading.
(xiv) Provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Shelf Registration Statement and provide the Trustee under the
Indenture with certificates for the CODES that are in a form
eligible for deposit with The Depository Trust Company.
(xv) Cooperate and assist in any filings required
to be made with the NASD and in the performance of any due
diligence investigation by any underwriter that is required to
be retained in accordance with the rules and regulations of
the NASD.
(xvi) Otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the
Commission and all reporting requirements under the Exchange
Act.
(xvii) Cause the Indenture to be qualified under
the TIA not later than the effective date of the Shelf
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
holders of CODES to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
best efforts to cause the Trustee thereunder to execute all
documents that may be required to effect such changes and all
other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a
timely manner.
(xviii) Cause all Transfer Restricted Securities
covered by the Shelf Registration Statement to be listed or
quoted, as the case may be, on each securities exchange or
automated quotation system on which similar securities issued
by the Issuer are then listed or quoted.
(xix) Provide to each Holder upon written request
each document filed with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement.
(xx) If requested by the underwriters, prepare
and present to potential investors customary "road show" or
marketing materials in a manner consistent with other new
issuances of other securities similar to the Transfer
Restricted Securities.
(c) Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice (a "Suspension Notice")
from the Issuer of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will, and will use its reasonable best efforts
to cause any underwriter(s) in an Underwritten Offering to, forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement until:
12
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiii) hereof; or
(ii) such Holder is advised in writing by the Issuer that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference
in the Prospectus.
If so directed by the Issuer, each Holder will deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Upon the effectiveness of the Shelf Registration Statement, each
Holder shall notify the Issuer at least three Business Days prior to any
intended distribution of Transfer Restricted Securities pursuant to the Shelf
Registration Statement (a "Sale Notice"), which notice shall be effective for
five Business Days. Each Holder of Transfer Restricted Securities, by accepting
the same, agrees to hold any communication by the Issuer in response to a Sale
Notice in confidence.
5. Registration Expenses. All expenses incident to the Issuer's
performance of or compliance with this Agreement shall be borne by the Issuer
regardless of whether a Shelf Registration Statement becomes effective,
including, without limitation:
(i) all registration and filing fees and expenses (including
filings made by any Initial Purchasers or Holders with the NASD);
(ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the CODES) and the Issuer's expenses for messenger and
delivery services and telephone;
(iv) all fees and disbursements of counsel to the Issuer and,
subject to Section 5(b) below, the Holders of Transfer Restricted
Securities;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Issuer (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Issuer shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Issuer.
13
(b) In connection with the Shelf Registration Statement required
by this Agreement, including any amendment or supplement thereto, and any other
documents delivered to any Holders, the Issuer shall reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being registered
pursuant to the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, which shall be Xxxxxxx
Xxxxxxx & Xxxxxxxx, or such other counsel as may be chosen by a Majority of
Holders for whose benefit the Shelf Registration Statement is being prepared.
6. Indemnification and Contribution. The Issuer shall indemnify
and hold harmless each Holder, such Holder's officers, directors, partners and
employees and each person, if any, who controls such Holder within the meaning
of the Securities Act (each, an "Indemnified Holder"), from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to resales of the Transfer Restricted Securities), to which such
Indemnified Holder may become subject, insofar as any such loss, claim, damage,
liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Issuer (or based upon written information
furnished by or on behalf of the Issuer expressly for use in such blue
sky application or other document or amendment on supplement) filed in
any jurisdiction specifically for the purpose of qualifying any or all
of the Transfer Restricted Securities under the securities law of any
state or other jurisdiction (such application or document being
hereinafter called a "Blue Sky Application"); or
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Issuer shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in the Shelf Registration Statement or Prospectus or amendment or
supplement thereto or Blue Sky Application in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf of such Holder;
provided, further, that the Issuer shall not be liable for any loss, liability,
claim, damage or expense to the extent that it arises from (1) a sale of
Transfer Restricted Securities occurring during a Suspension Period, provided
that such Holder shall have received a Suspension Notice with respect to such
Suspension Period prior to such sale or (2) an untrue statement or omission or
alleged untrue statement or omission of a material fact contained in a
Prospectus, if (w) the Issuer had notified such Holder of such untrue statement
or omission or alleged untrue statement or omission prior to the Holder's first
use of the Prospectus, (x) the Holder failed to deliver, at or prior to the
written confirmation of sale, a Prospectus that was
14
amended or supplemented, (y) such Prospectus, as amended or supplemented, would
have corrected the untrue statement or omission or alleged untrue statement or
omission and (z) the Prospectus, as amended or supplemented, had been delivered
to such Holder prior to the time of the Holder's first use of the Prospectus.
The foregoing indemnity agreement is in addition to any liability which the
Issuer may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and
hold harmless the Issuer, its officers, directors and employees and each person,
if any, who controls the Issuer within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Issuer or any such officer, director,
employee or controlling person may become subject, insofar as any such loss,
claim, damage or liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto or any Blue Sky
Application; or
(ii) the omission or the alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein,
and shall reimburse the Issuer and any such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by the Issuer or any such officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Holder may
otherwise have to the Issuer and any such officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in
15
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that a Majority of Holders shall have the
right to employ a single counsel to represent jointly a Majority of Holders and
their respective officers, directors, partners, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by a Majority of Holders against the Issuer under
this Section 6, if a Majority of Holders seeking indemnification shall have been
advised by legal counsel that there may be one or more legal defenses available
to them and their respective officers, employees and controlling persons that
are different from or additional to those available to the Issuer and its
officers, directors, employees and controlling persons, the fees and expenses of
a single separate counsel shall be paid by the Issuer. No indemnifying party
shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer from the offering and sale of the
Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
(ii) if the allocation provided by clause (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 6(d)(i)
but also the relative fault of the Issuer on the one hand and the
Holders on the other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such loss,
claim, damage or liability (or action in respect thereof), as well as
any other relevant equitable considerations.
The relative benefits received by the Issuer on the one hand and a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total
16
net proceeds from the offering of the CODES purchased under the Purchase
Agreement (before deducting expenses) received by the Issuer on the one hand,
bear to the total proceeds received by such Holder with respect to its sale of
Transfer Restricted Securities on the other. The relative fault of the parties
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuer on the one hand or
the Holders on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Issuer and each Holder agree that it would not be
just and equitable if the amount of contribution pursuant to this Section 6(d)
were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the first
sentence of this paragraph (d). The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 6 shall be deemed to include, for
purposes of this Section 6, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 6, no Holder shall be required to contribute any amount in excess
of the amount by which the total price at which the Transfer Restricted
Securities purchased by it were resold exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this Section 6(d) are several and not joint.
7. Rule 144A. In the event the Issuer is not subject to Section
13 or 15(d) of the Exchange Act, the Issuer hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
8. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting
arrangements.
9. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering if approved
by the Issuer, as provided in Section 4(b)(ii). In any such Underwritten
Offering, the investment banker or investment
17
bankers and manager or managers that will administer the offering will be
selected by a Majority of Holders whose Transfer Restricted Securities are
included in such offering; provided, that such investment bankers and managers
must be reasonably satisfactory to the Issuer.
10. Miscellaneous.
(a) Remedies. The Issuer acknowledges and agrees that any failure
by the Issuer to comply with its obligations under Section 2 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Issuer's obligations under Section 2
hereof. The Issuer further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) Adjustments Affecting Transfer Restricted Securities. The
Issuer shall not take any action with the primary purpose of adversely affecting
the ability of the Holders of the Transfer Restricted Securities as a class to
include such Transfer Restricted Securities in a registration undertaken
pursuant to this Agreement.
(c) No Inconsistent Agreements. The Issuer will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. In addition, the
Issuer shall not grant to any of its security holders (other than the Holders of
Transfer Restricted Securities in such capacity) the right to include any of its
securities in the Shelf Registration Statement provided for in this Agreement
other than the Transfer Restricted Securities. The Issuer has not previously
entered into any agreement (which has not expired or been terminated) granting
any registration rights with respect to its securities to any Person which
rights conflict with the provisions hereof.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Issuer has obtained the written
consent of a Majority of Holders or such greater percentage of the Holders as
required by the Indenture.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the registrar under the Indenture or the transfer agent of the
Common Stock, as the case may be; and
(ii) if to the Issuer:
Greater Bay Bancorp
0000 Xxxx Xxxxxxxx Xxxx
00
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Manatt Xxxxxx & Philips LLP
00000 X. Xxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Quicksilver
Fax: (000) 000-0000
Telephone: (000) 000-0000
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that (i) this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder and (ii)
nothing contained herein shall be deemed to permit any assignment, transfer or
other disposition of Transfer Restricted Securities in violation of the terms of
the Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities, in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Securities Held by the Issuer or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Issuer or its "affiliates" (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
19
(j) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
(k) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuer with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
20
In Witness Whereof, the parties have executed this Agreement as of the
date first written above.
Greater Bay Bancorp
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: President
Xxxxxx Brothers Inc.
By: /s/ Xxxxxxxxxxx Del-Moral Niles
---------------------------------
Name: Xxxxxxxxxxx Del-Moral Niles
Title: Vice President
Sandler X'Xxxxx & Partners, L.P.
By: Sandler X'Xxxxx & Partners Corp.,
the sole general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
21
EXHIBIT A
GREATER BAY BANCORP
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
Beneficial owners that do not complete this Questionnaire within 20
Business Days of receipt hereof and deliver it to the Issuer as provided below
will not be named as selling securityholders in the prospectus and therefor will
not be permitted to sell any Transfer Restricted Securities pursuant to the
Shelf Registration Statement at the time of effectiveness.
The undersigned beneficial holder of Zero Coupon Senior Convertible
Contingent Debt Securities due 2022 (the "CODES") of Greater Bay Bancorp (the
"Issuer"), or common stock, no par value per share (the "Shares" and together
with the CODES, the "Transfer Restricted CODES") of the Issuer understands that
the Issuer has filed, or intends to file, with the Securities and Exchange
Commission (the "Commission") a registration statement (the "Shelf Registration
Statement"), for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the "Securities Act"), of the Transfer Restricted
Securities in accordance with the terms of the Registration Rights Agreement,
dated as of April 24, 2002 (the "Registration Rights Agreement") between the
Issuer and Xxxxxx Brothers Inc. A copy of the Registration Rights Agreement is
available from the Issuer upon request at the address set forth below. All
capitalized terms not otherwise defined herein have the meaning ascribed thereto
in the Registration Rights Agreement.
Each beneficial owner of Transfer Restricted Securities is entitled to
the benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Transfer Restricted Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Transfer Restricted Securities generally will
be required to be named as a selling securityholder in the related Prospectus,
deliver a Prospectus to purchasers of Transfer Restricted Securities and be
bound by those provisions of the Registration Rights Agreement applicable to
such beneficial owner (including certain indemnification provisions, as
described below).
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus.
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Transfer Restricted Securities hereby gives notice to the Issuer of its
intention to sell or otherwise dispose of Transfer Restricted Securities
beneficially owned by it and listed below in Item 3 (unless otherwise specified
under Item 3) pursuant to the Shelf Registration Statement. The undersigned, by
signing and returning this Questionnaire, understands that it will be bound by
the terms and conditions of this Questionnaire and the Registration Rights
Agreement.
A-1
Pursuant to the Registration Rights Agreement, the undersigned has
agreed to indemnify and hold harmless the Issuer, the Issuer's directors, the
Issuer's officers who sign the Shelf Registration Statement and each person, if
any, who controls the Issuer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against certain
losses arising in connection with statements concerning the undersigned made in
the Shelf Registration Statement or the related Prospectus in reliance upon the
information provided in this Questionnaire.
The undersigned hereby provides the following information to the Issuer
and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
1. Information Regarding Selling Securityholder
(a) Full legal name of Selling Securityholder:______________________
(b) Full legal name of registered holder (if not the same as (a)
above) through which Transfer Restricted Securities listed in
Item (3) below are held:
_________________________________________________________________
(c) Full legal name of DTC participant (if applicable and if not the
same as (b) above) through which Transfer Restricted Securities
listed in Item (3) are held:
_________________________________________________________________
2. Address for Notices to Selling Securityholders
Telephone: _____________________________
Fax: ___________________________________
Contact Person: ________________________
3. Beneficial Ownership of Transfer Restricted Securities
(a) Type of Transfer Restricted Securities beneficially owned, and
principal amount of CODES or number of shares of Common Stock, as
the case may be, beneficially owned: ____________________________
(b) CUSIP No(s). of such Transfer Restricted Securities beneficially
owned: ___________________
4. Beneficial Ownership of the Issuer's Securities Owned by the Selling
Securityholder
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Issuer other than the
Transfer Restricted Securities listed above in Item (3) ("Other Securities").
A-2
(a) Type and amount of Other Securities beneficially owned by the Selling
Securityholder:_______________________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
______________________________________________________________________
5. Relationship with the Issuer
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Issuer (or its predecessors or affiliates) during the past three years.
State any exceptions here:_________________________
6. Plan of Distribution
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Transfer Restricted Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as follows (if at
all). Such Transfer Restricted Securities may be sold from time to time directly
by the undersigned or, alternatively, through underwriters, broker-dealers or
agents. If the Transfer Restricted Securities are sold through underwriters or
broker-dealers, the Selling Securityholder will be responsible for underwriting
discounts or commissions or agent's commissions. Such Transfer Restricted
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions):
(i) on any national securities exchange or quotation service on
which the Transfer Restricted Securities may be listed or quoted at the
time of sale;
(ii) in the over-the-counter market;
(iii) in transactions otherwise than on such exchanges or services or
in the over-the-counter market; or
(iv) through the writing of options.
In connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Transfer
Restricted Securities and deliver Transfer Restricted Securities to close out
such short positions, or loan or pledge Transfer Restricted Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here: ________________________________________________
________________________________________________________________________________
A-3
Note: In no event will such method(s) of distribution take the form of an
underwritten offering of the Transfer Restricted Securities without the prior
agreement of the Issuer.
7. Instructions for Delivery of Questionnaire
Please return the completed and executed Questionnaire to Greater Bay
Bancorp at:
Greater Bay Bancorp
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
8. Acknowledgments
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Exchange Act and the rules and regulations
promulgated thereunder relating to stock manipulation, particularly Regulation M
thereunder (or any successor rules or regulations), in connection with any
offering of Transfer Restricted Securities pursuant to the Shelf Registration
Statement. The undersigned agrees that neither it nor any person acting on its
behalf will engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein. Pursuant to the Registration Rights Agreement, the Issuer has
agreed under certain circumstances to indemnify the Selling Securityholders
against certain liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Issuer of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth above.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to items (1) through (7) above and
the inclusion of such information in the Shelf Registration Statement and the
related Prospectus. The undersigned understands that such information will be
relied upon by the Issuer in connection with the preparation or amendment of the
Shelf Registration Statement and the related Prospectus.
A-4
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
Beneficial Owner
By: _______________________
Name:
Title:
Date:
A-5