EXHIBIT 10.1
MID-PENINSULA SHAREHOLDER AGREEMENT
This Shareholder Agreement ("Agreement") is made and entered into on
June 26, 1996, by and between Cupertino National Bancorp ("Cupertino") and
each of the other persons executing this Agreement (each such person is
referred to individually as a "Mid-Peninsula Shareholder" and collectively
referred to as the "Mid-Peninsula Shareholders"), with reference to the
following facts:
A. Mid-Peninsula Bancorp ("Mid-Peninsula") and Cupertino have entered
into that certain Agreement and Plan of Reorganization and Merger
("Reorganization Agreement"), dated as of June 5, 1996, pursuant to which
Cupertino will merge with and into Mid-Peninsula (the "Merger"),
Mid-Peninsula will change its name to Greater Bay Bancorp ("Bancorp") and
Mid-Peninsula will pay consideration to Cupertino Shareholders in the form of
Bancorp common stock.
B. Each of the Mid-Peninsula Shareholders is also a director or
executive officer of Mid-Peninsula.
C. In order to induce Cupertino to enter into the Reorganization
Agreement, the Mid-Peninsula Shareholders desire to enter into this Agreement
solely in their capacity as Mid-Peninsula Shareholders.
NOW, THEREFORE, in consideration of the promises and of the respective
representations, warranties and covenants, agreements and conditions
contained herein and in the Reorganization Agreement, the parties hereto
agree as follows:
1. AGREEMENTS OF MID-PENINSULA SHAREHOLDERS.
1.1 AGREEMENT TO VOTE. At any meeting of shareholders of Mid-Peninsula
or in connection with any solicitation of the written consent of
Mid-Peninsula Shareholders to approve the Reorganization Agreement and the
transactions contemplated thereby, each of the Mid-Peninsula Shareholders
shall vote or cause to be voted all shares of Mid-Peninsula common stock
("Mid-Peninsula Share" or "Mid-Peninsula Shares") owned by each such
Mid-Peninsula Shareholder, and any other Mid-Peninsula Shares hereafter
acquired by each such Mid-Peninsula Shareholder, in favor of, and to approve,
the principal terms of the Merger and any other matter contemplated by the
Reorganization Agreement which requires the approval of the Mid-Peninsula
Shareholders.
1.2 AGREEMENT TO RECOMMEND. Unless the Board of Directors of
Mid-Peninsula shall have determined that they have a fiduciary duty to the
Mid-Peninsula Shareholders to recommend that the Mid-Peninsula Shareholders
not vote in favor of approval of the transactions contemplated by the
Reorganization Agreement, each Mid-Peninsula Shareholder shall recommend to
the Mid-Peninsula Shareholders to vote in favor of, and to approve, the
principal
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terms of the Merger and any other matter contemplated by the
Reorganization Agreement.
1.3 RESTRICTIONS ON DISPOSITIONS. Each Mid-Peninsula Shareholder
agrees that he will not pledge or otherwise encumber, nor sell, assign or
otherwise dispose of, any Mid-Peninsula Shares currently owned or acquired by
such Mid-Peninsula Shareholder after the date of this Agreement, except (i)
with the prior written consent of Cupertino (which shall not be unreasonably
withheld); (ii) pursuant to the Reorganization Agreement; or (iii) by a bona
fide pledge to secure a loan made on a full-recourse basis.
1.4 NEGOTIATIONS WITH OTHER PARTIES. Each Mid-Peninsula Shareholder
agrees that he will not, directly or indirectly, solicit or encourage any
inquiries, discussions or proposals from, or enter into, or continue any
discussions, negotiations or agreements relating to, or vote in favor of any
proposal or transactions for disposition of all or part of the business or
assets of Mid-Peninsula or any subsidiary thereof, or the acquisition of all
or part of Mid-Peninsula's or any subsidiary of Mid-Peninsula's voting
securities or any business combination with any person other than Cupertino
or any wholly-owned subsidiary of Cupertino unless, upon advice of counsel,
the Board of Directors of Mid-Peninsula shall have determined that any duty
to refrain from any act pursuant to this Section 1.4 is inconsistent with the
continuing fiduciary duty of the Board of Directors to the Mid-Peninsula
Shareholders.
2. REPRESENTATIONS AND WARRANTIES OF MID-PENINSULA SHAREHOLDERS.
Each of the Mid-Peninsula Shareholders severally and not jointly,
represents and warrants to and agrees with Cupertino, solely with respect to
himself or herself, as follows:
2.1 CAPACITY. Each such Mid-Peninsula Shareholder has all the
requisite capacity and authority to enter into and perform such Mid-Peninsula
Shareholder's obligations under this Agreement.
2.2 BINDING AGREEMENT. This Agreement constitutes the valid and
legally binding obligation of each such Mid-Peninsula Shareholder.
2.3 NON-CONTRAVENTION. The execution and delivery of this Agreement by
each such Mid-Peninsula Shareholder does not, and the performance by such
Mid-Peninsula Shareholder's obligations hereunder and the consummation by
such Mid-Peninsula Shareholder of the transactions contemplated hereby will
not, violate or conflict with or constitute a default under any agreement,
instrument, contract or other obligation or any order,
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arbitration award, judgment or decree to which such Mid-Peninsula Shareholder
is a party or by which such Mid-Peninsula Shareholder is bound, or any
statute, rule or regulation to which such Mid-Peninsula Shareholder or any of
such Mid-Peninsula Shareholder's property is subject.
2.4 OWNERSHIP OF SHARES. Schedule 1 hereto correctly sets forth the
number of Mid-Peninsula Shares owned by each Mid-Peninsula Shareholder, or
with respect to which each Mid-Peninsula Shareholder has good title to all of
the Mid-Peninsula Shares indicated as owned by such Mid-Peninsula Shareholder
in the capacity set forth on Schedule 1 as of the date indicated on such
Schedule 1, and such Mid-Peninsula Shares are so owned free and clear of any
liens, security interest, charges or other encumbrances, except as set forth
in such Schedule 1.
3. TERMINATION.
3.1 TERMINATION DATE. This Agreement shall terminate and be of no
further force and effect immediately upon the earlier of: (a) consummation
of the Merger; or (b) termination of the Reorganization Agreement in
accordance with the terms thereof.
3.2 EFFECT OF TERMINATION. Upon the termination of this Agreement in
accordance with Section 3.1 hereof, the respective obligations of the parties
hereto shall immediately become void and have no further force or effect.
4. SPECIFIC PERFORMANCE. The parties hereto recognize and agree that
monetary damages will not compensate adequately the parties hereto for
nonperformance. Accordingly, each party agrees that his obligations shall be
enforceable by court order requiring specific performance.
5. MISCELLANEOUS.
5.1 EXPENSES. Each party hereto shall pay its own costs and expenses,
including, but not limited to, those of its attorneys and accountants, in
connection with this Agreement and transactions covered and contemplated
hereby.
5.2 NOTICES. All notices, demands or other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
in person, by telex, telecopy, facsimile transmission, or by United States
mail, certified or registered, with return receipt requested, or otherwise
actually delivered as follows:
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(a) If to Mid-Peninsula Bancorporation:
Mid-Peninsula Bancorp
420 Cowper Street
Palo Alto, CA 94301-1504
Attention: David L. Kalkbrenner, President
Telephone: (408) 323-5150
Telecopier: (408) 323-7421
With copies to:
Bronson, Bronson & McKinnon
10 Almaden Blvd., Suite 600
San Jose, CA 95113-2237
Attention: Glenn T. Dodd
Telephone: (408) 293-0599
Telecopier: (408) 999-6553
Attention: John W. Carr
Telephone: (415) 986-4200
Telecopier: (415) 982-1394
(b) If to a Cupertino Shareholder:
Cupertino National Bancorp
20230 Stevens Creek Boulevard
Cupertino, CA 95014
Attention: C. Donald Allen, President
Telephone: (408) 996-1144
Telecopier: (408) 996-0657
With copies to:
Manatt, Phelps & Phillips
11355 W. Olympic Boulevard
Los Angeles, CA 90064
Attention: Paul H. Irving
William T. Quicksilver
Telephone: (310) 312-4000
Telecopier: (310) 312-4224
The persons or address to which mailings or deliveries shall be made may
change from time to time by notice given pursuant to the provisions of this
Section 5.2. Any notice, demand or other communication given pursuant to the
provisions of this Section 5.2 shall be deemed to have been given on the date
delivered or three days following the date mailed, as the case may be.
5.3 SUCCESSORS AND ASSIGNS. All terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective transferees, successors and assigns; provided, however,
that, except as otherwise contemplated herein, this Agreement and all rights,
privileges, duties and obligations of the parties hereto may not be assigned
or delegated by any party hereto without the prior written
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consent of the other parties to this Agreement and any purported assignment
in violation of this Section 5.3 shall be null and void.
5.4 THIRD PARTY BENEFICIARIES. Each party hereto intends that this
Agreement shall not benefit, or create any right or cause of action in or on
behalf of, any person other than the parties hereto. As used in this
Agreement, the term party or parties shall refer only to Cupertino and the
Mid-Peninsula Shareholders, or any of them.
5.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
5.6 GOVERNING LAW. This Agreement is made and entered into in the
State of California and the laws of that state shall govern the validity and
interpretation hereof and the performance of the parties hereto of their
respective duties and obligations hereunder.
5.7 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only and do not form a part of this Agreement.
5.8 WAIVER AND MODIFICATION. No waiver of any term, provision or
condition of this Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be or construed as a further or continuing
waiver of any such term, provision or condition of this Agreement. This
Agreement may be modified or amended only by an instrument of equal formality
signed by the parties or their duly authorized agents.
5.9 ATTORNEYS' FEES. In the event any of the parties to this Agreement
brings an action or suit against any other party by reason of any breach of
any covenant, agreement, representation, warranty or other provision hereof,
or any breach of any duty or obligation created hereunder by such other
party, the prevailing party in whose favor final judgment is entered shall be
entitled to have and recover of and from the losing party all reasonable
costs and expenses incurred or sustained by such prevailing party in
connection with such suit or action, including without limitation, legal fees
and court costs (whether or not taxable as such).
5.10 ENTIRE AGREEMENT. The making, execution and delivery of this
Agreement by the parties hereto have been encouraged by no representations,
statements, warranties or agreements other than those herein expressed. This
Agreement embodies the entire understanding of the parties and there are no
further or other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter hereof, unless expressly
referred to by reference herein.
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5.11 SEVERABILITY. Whenever possible, each provision of this Agreement
and every related document shall be interpreted in such manner as to be valid
under applicable law. However, if any provision of any of the foregoing
shall be invalid or prohibited under said applicable law, it shall be
construed, interpreted and limited to effectuate its purposes to the maximum
legally permissible extent. If it cannot be so construed and interpreted so
as to be valid under such law, such provision shall be ineffective to the
extent of such invalidity or prohibition without invalidating the remainder
of such provision or the remaining provisions of this Agreement, and this
Agreement shall be construed to the maximum extent possible to carry out its
terms without such invalid or unenforceable provision or portion thereof.
5.12 SEVERAL OBLIGATIONS. All duties and obligations of each party to
this Agreement shall be several and not joint.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CUPERTINO BANCORP
By:___________________________
C. Donald Allen, President
MID-PENINSULA SHAREHOLDERS
/s/ Duncan L. Matteson
________________________________ __________________________________
Duncan L. Matteson Owen D. Conley
/s/ Donald L. Hammond
________________________________ __________________________________
Edwin E. van Bronkhorst Donald L. Hammond
/s/ R. Hewlett Lee, M.D.
________________________________ __________________________________
Warren R. Thoits R. Hewlett Lee, M.D.
/s/ David L. Kalkbrenner /s/ Helen C. Leong
________________________________ __________________________________
David L. Kalkbrenner Helen C. Leong
/s/ Murray B. Dey
________________________________ __________________________________
Murray B. Dey George M. Marcus
/s/ Lawrence A. Aufmuth
________________________________ __________________________________
Lawrence A. Aufmuth Donald H. Seiler
________________________________ __________________________________
John F. Blokker Bruce E. Van Alstyne
/s/ Allan F. Brown /s/ Carol H. Rowland
________________________________ __________________________________
Allan F. Brown Carol H. Rowland
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