Q1 2004 Exhibit 4.1





Exhibit 4.1

 

SETTLEMENT AND STANDSTILL AGREEMENT

This Settlement and Standstill Agreement (this "AGREEMENT") is entered
into as of May 5, 2004, by Heritage Commerce Corp, a California corporation (the
"COMPANY"), Brad L. Smith ("SMITH") and James "Jim" D'Amico ("D'AMICO"), Arthur
"Art" Carmichael, Jr. ("CARMICHAEL"), William "Boots" Del Biaggio, III ("DEL
BIAGGIO"), William "Bill" D. Dallas ("DALLAS"), Tracey Enfantino ("ENFANTINO"),
Robert W. Peters ("PETERS"), Gary L. Thornhill ("THORNHILL"), Ranson W. Webster
("WEBSTER"), and Norman "Norm" P. Creighton ("CREIGHTON") (collectively, the
"PARTICIPANTS"). Except as the context otherwise requires, all capitalized terms
shall have the meaning as defined in Section 1.2.

RECITALS:

A. The Company had outstanding 11,495,008 shares of common stock, no par
value as of April 1, 2004, the record date for the Company's 2004 Annual Meeting
of Shareholders.

B. On April 7, 2004, the Company filed definitive proxy material with the
SEC regarding the Annual Meeting.

C. On April 23, 2004, D'Amico, Carmichael, Del Biaggio, Dallas,
Enfantino, Peters, Thornhill and Webster filed a Schedule 13D with the SEC, as
amended on May 4, 2004, reporting group ownership of approximately 9.3% of the
Company's shares outstanding as of April 1, 2004 and stating (i) their belief
that the current board of directors of the Company has been ineffective in its
corporate governance approach and is not sufficiently committed to maximizing
shareholder value and (ii) their intention to present an alternative slate of
nominees for the election of Class III directors at the Annual Meeting, and to
increase the size of the board of directors of the Company by one director to 13
directors, and, conditioned on the approval of such proposal, to elect Dallas to
the board of directors as an additional Class III director.

D.On April 23, 2004, the Participants filed a preliminary proxy statement
with the SEC, as amended on May 4, 2004, regarding the proxy solicitation
referred to in Recital B, and setting forth Webster, Creighton and Dallas as the
Participants' nominees and purporting to solicit proxies for the election of two
of the Company's management nominees, Louis ("Lon") O. Normandin and Humphrey P.
Polanen.





STATEMENT OF AGREEMENT

NOW THEREFORE, the Company and each of the undersigned Participants, both
severally and jointly, do hereby agree as follows:

SECTION 1 CONSTRUCTION AND DEFINITIONS

1.1 CONSTRUCTION. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of this Agreement. Terms defined in the singular shall include the
plural, and vice versa, and pronouns in any gender shall include the masculine,
feminine, and neuter, as the context requires. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise. The word "including" shall mean including without limitation, and use
of the term "or" is not intended to be exclusive, unless the context clearly
requires otherwise. All references to a "Section" refer to the sections of this
Agreement, and all references to an "Exhibit" refer to the documents attached to
this Agreement, unless the context otherwise requires.

1.2 DEFINITIONS. Except for the names of the parties hereto (which shall be
referenced herein as defined above), the following capitalized terms used in
this Agreement shall, unless the context otherwise requires, have the following
meaning:


	"AFFILIATE" of a specified Person is a Person that, directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the Person specified, and when used with respect to any or
all of the Participants shall include the "Concerned Shareholders Committee of
Heritage Commerce Corp" referred to in the Preliminary Proxy Statement.
	"ANNUAL MEETING" shall mean the meeting of the shareholders of the Company
scheduled for May 27, 2004.
	"ASSOCIATE" shall mean, with respect to a specified Person, (1) any
corporation or organization (other than the Company) of which the Person is an
officer, director, or partner or is, directly or indirectly, the beneficial
owner of 10 percent or more of any class of equity security as such term is
defined in Rule 3a-11 of the General Rules and Regulations under the Exchange
Act, (2) any trust or other estate in which the Person has a substantial
beneficial interest or as to which the Person serves as trustee or in a similar
fiduciary capacity, and (3) any relative or spouse of the Person, or any
relative of the spouse, who has the same home as the Person, or is an officer or
director of any corporation controlling or controlled by the Person.
	"BENEFICIAL OWNERSHIP" with respect to a security means having or sharing
the rights or powers of a "beneficial owner" determined pursuant to Rule 13d-3
of the Exchange Act.
	"BUSINESS DAY" means any day other than a Saturday, Sunday, or other day on
which banking institutions in the State of California are authorized or
obligated by law or executive order to close.
	"CLAIMANT" has the meaning specified in Section 4.1.
	"CLAIMS" has the meaning specified in Section 4.1.
	"CLOSE OF BUSINESS" on any given date shall mean 5:30 p.m., Pacific Time, on
that date; provided, however, that if the date is not a Business Day it shall
mean 5:30 p.m., Pacific Time, on the next succeeding day which is a Business
Day.
	"COMPANY" has the meaning specified in the first paragraph of this Agreement
and includes all subsidiaries, Affiliates and Associates thereof and any
successors thereto.
	"COMMON STOCK" means any of the Company's shares of common stock, no par
value, which are issued and outstanding or which the Company is authorized to
issue.
	"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended and in
effect on the date of this Agreement, and all references to any rule or
regulation of the General Rules and Regulations under the Exchange Act shall be,
except as otherwise specifically provided herein, to the rule or regulation as
was in effect on the date of this Agreement.
	"EXPIRATION DATE" means the Close of Business on May 5, 2006 or on such
later date as of which a Participant no longer has Beneficial Ownership of any
Voting Securities.
	"GROUP" means any two or more Persons acting as a partnership, limited
partnership, syndicate, or other group constituting a "Person" within the
meaning of Section 13(d)(3) of the Exchange Act or a "group" within the meaning
of Rules 13d-3 and 13d-5 under the Exchange Act or other comparable rules under
the Exchange Act that may hereafter exist.
	"GROUP 13D" means the Schedule 13D referred to in paragraph C of the
Recitals to this Agreement.
	"PARTICIPANT" has the meaning given in the preamble to this Agreement.
	The term "PERSON" means any individual, firm, corporation, partnership,
limited liability company, limited liability partnership, trust, estate, sole
proprietorship, or other association or entity.
	"PRELIMINARY PROXY STATEMENT" means the preliminary proxy material referred
to in paragraph D of the Recitals to this Agreement.
	The term "RELEASED PARTIES" has the meaning given in Section 4.1(a) of this
Agreement.
	"SEC" means the United States Securities and Exchange Commission.
	"VOTING SECURITIES" means the Common Stock, or the equity securities or
other equity interest, having voting power, and securities convertible into,
exchangeable for or exercisable for (whether or not currently convertible,
exchangeable or exercisable) such capital stock or other equity
security.




SECTION 2 STANDSTILL AGREEMENT OF PARTICIPANTS

2.1 WITHDRAWAL OF PRELIMINARY PROXY STATEMENT. In consideration of
performance by the Company of its obligations contained herein, the Participants
shall withdraw and cause the "Concerned Shareholders Committee Of Heritage
Commerce Corp." to withdraw, the Preliminary Proxy Statement, and in connection
therewith, shall within 24 hours of execution of this Agreement, execute and
send to the Office of Mergers & Acquisitions of the SEC, by facsimile and by
EDGAR, tagged as "<TYPE> CORRESP Non-Public Correspondence" or any other
tag which results in the filing being readable only by the SEC, a letter
substantially in the form of Exhibit A.

2.2. WITHDRAWAL OF NOTICE OF NOMINATION AND PROPOSAL TO AMEND THE COMPANY'S
BYLAWS. The Participants hereby formally and irrevocably withdraw the notice of
the nomination of Louis "Lon" O. Normandin, Humphrey P. Polanen, Webster,
Creighton and Dallas contained in the letter of April 19, 2004 to the Board of
Directors of the Company submitted by Carmichael, D'Amico, Enfantino and Peters,
as well as the notice in such letter of an intent to request that the
shareholders fix the size of the Company's board of directors at 13.

2.3. STANDSTILL COVENANTS. Each Participant agrees that for the period from
the date of this Agreement to the Expiration Date neither that Participant nor
any of such Participant's Affiliates or Associates will, without the prior
approval of the board of directors of the Company, directly or indirectly, take,
or solicit, request, advise, assist, encourage, or facilitate (including by
providing financing to) any other Person to take, any of the following actions;
provided, however, that the foregoing shall not apply to any person who is a
director of the Company acting in his capacity as a director of the Company with
respect to matters considered by and acted on by the Board of Directors of the
Company:


	MAKE TENDER OR EXCHANGE OFFER. Commence, or announce any intention to
commence, or (directly or indirectly or through or in conjunction with any other
Person) engage in, a tender or exchange offer for Voting Securities made by any
other Person or entity; provided, however, each Participant shall be entitled to
sell any Voting Securities in response to any such tender or exchange offer, or
on the open market and, each Participant shall be entitled to vote any Voting
Securities owed beneficially by such person in such person's sole and absolute
discretion with respect to such tender or exchange offer;
	ENGAGE IN SHORT SALES. Make any short sales, enter into any hedging,
derivative or similar transactions regarding Voting Securities;
	SOLICIT PROXIES. Solicit proxies or written consents of shareholders with
respect to Voting Securities under any circumstances, or make, or in any way
participate in, any "solicitation" of any "proxy" to vote any Voting Securities
or become a "participant" in any election contest or for the approval of a
shareholder proposal with respect to the Company (as such terms are defined or
used in Regulation 14A under the Exchange Act), or seek to advise or influence
any Person with respect to the voting of any Voting Securities; provided,
however, each Participant shall be entitled to vote any Voting Securities owed
beneficially by such person in such person's sole and absolute discretion;
	DIRECTOR NOMINATIONS. Nominate any Person or Person as a director of the
Company or of any of its subsidiaries, or induce or assist or request any other
shareholder to do the same; provided, however, nothing shall prevent any
Participant from recommending candidates to the Board of Directors of the
Company, or any committee thereof;
	CONTROL. Act, alone or in concert with others, to seek to control the
management, board of directors, policies, or affairs of the Company or solicit,
propose, seek to effect or negotiate with any other Person (including, without
limitation, the Company) with respect to any form of business combination or
other extraordinary transaction with the Company or any restructuring,
recapitalization, similar transaction, or other transaction not in the ordinary
course of business, with respect to the Company; provided, however, nothing in
this clause (e) shall present any Participant from selling or purchasing any
Voting Securities; 
	SHAREHOLDER LIST. Request, or take any action to request, access to or
review, inspection or copying of, the Company's list of shareholders, or any
information in the possession or control of the Company or to which the Company
has access relating to Common Stock Beneficially Owned by any Person, whether
under state law, federal law (including but not limited to the federal
securities laws and the rules of the SEC) or otherwise, or make any request of
the Company to distribute materials to any of the Company's shareholders.
	ACCESS TO RECORDS. Request, or take any action to request, access to or
review, inspection or copying of, any of the Company's books and records, in
whatever form such records may be maintained, whether under state law, federal
law (including but not limited to the federal securities laws and the rules of
the SEC) or otherwise.
	VOTING AGREEMENTS. Enter into any shareholders agreement, voting agreement
or voting trust with other holders of Common Stock. 




SECTION 3. COMPANY UNDERTAKINGS.

3.1 RESIGNATION OF CHIEF EXECUTIVE OFFICER. The parties to this Agreement
agree that, effective immediately, Smith, Chief Executive Officer of the
Company, has resigned from his position as Chief Executive Officer and member of
the Company's board of directors and as an officer and member of the board of
directors of every subsidiary of the Company.

3.2 APPOINTMENT TO BOARD. Effective immediately, pursuant to Section 2.8 of
the Company's By-Laws, Webster will fill the vacancy caused by the resignation
of Smith as a director of the Company's Board of Directors. The Company agrees
to re-nominate Webster to its board of directors at the expiration of his term
in 2005 and will recommend his re-election to the shareholders in the Company's
proxy materials for the 2005 annual meeting. Upon his appointment to the
Company's board of directors, Webster will be appointed Chairman of the
Corporate Governance and Nominating Committee. The Company also agrees to
consider the recommendations of other candidates to the Board of Directors that
may be offered by any Participant in the future.

3.3. INTERIM CHIEF EXECUTIVE OFFICER. Effective immediately, the Company will
appoint William J. Del Biaggio, Jr. to act as interim Chief Executive Officer
until such time as a permanent Chief Executive Officer is appointed by the
Company's board of directors or until the board of directors shall otherwise
determine.

3.4 CONSULTING ARRANGEMENT WITH CREIGHTON. For a period of 120 days following
the execution of this Agreement, Creighton shall be employed as a consultant by
the Company at the monthly rate of $2000 plus expenses as incurred and
documented. If at the end of the 120 day period Creighton and the Company agree,
the Company shall expand the size of the Company's board of directors by one
position and shall appoint Creighton to that open position. Prior to such
appointment, Creighton shall resign from the Advisory Board of Comerica Bank. In
the event Creighton elects not to accept a directorship or to resign from the
Advisory Board of Comerica Bank, neither he or any other Participant shall be in
breach of this Agreement.


3.5 EXPENSE REIMBURSEMENT. The Company shall reimburse the Participants for
expenses incurred in connection with the Preliminary Proxy Statement in an
amount not to exceed $75,000. Such reimbursement to be paid within five (5) days
of the Company's receipt of an invoice of expenses incurred by the
Participants.

SECTION 4 MUTUAL RELEASE

4.1 MUTUAL RELEASE.

(a) Each of the Company, for and on behalf of itself and each of its
Affiliates, Associates, predecessors, successors, parents, subsidiaries,
divisions, partners, assignees and nominees, and all employees, directors,
officers, agents, attorneys, representatives and shareholders of each of them,
and each of their Affiliates, Associates, heirs, estates, successors, and
assigns, on one part, and each Participant for and on behalf himself or herself
and each of his or her Affiliates, Associates, assignees, nominees, employees,
agents, attorneys, representatives, heirs, estates, and successors, on the other
part, each (as a "CLAIMANT") hereby mutually release and forever discharge the
other and each such Person of the other's part (the "RELEASED PARTIES") of and
from any and all manner of claims, rights, actions, causes of action, suits,
liens, obligations, accounts, debts, demands, agreements, promises, liabilities,
controversies, costs, expenses, and attorneys' or paralegals' or other fees
whatsoever, whether arising in law or equity, whether based on any federal,
state or foreign law or right of action, matured or unmatured, contingent or
fixed, liquidated or unliquidated, known or unknown, accrued or unaccrued which
the Released Parties or any of them, the Claimants, or any of them, ever had or
now have by reason, in connection with, arising out of the calling or conduct of
the Annual Meeting; the nomination of persons to the Company's Board of
Directors; the form and content of any preliminary or definitive proxy statement
or any public statement related to the Annual Meeting; the resignation, removal,
attempted removal or appointment of any person as an officer, director or
employee of the Company or any of its subsidiaries (collectively, "CLAIMS").
"Claims" shall not include any claims arising out of or relating to this
Agreement or any rights or obligations contained herein. 

(b) This release shall be deemed to extinguish all such Claims, and the
Company for and on behalf of itself and each Participant for and on behalf of
himself and herself, each mutually covenants not to institute or maintain any
suits against any of the Released Parties with respect to any of such Claims;
provided that this release shall not preclude the Company or any Participant
from instituting any action against the other for alleged breach of this
Agreement to the extent that the Company's or Participant's, as applicable,
obligations hereunder remained executory at the time of the alleged breach. 

(c) Notwithstanding the forgoing, this release shall not extinguish any
Claims regarding (1) any loan or other extension of credit, any lien or other
security therefor, or any guarantee or other accommodation thereof, any deposit
or obligation payable, or similar banking transaction or service between the
Company or any of its subsidiaries and Affiliates and any Participant or his or
her Affiliates, Associates, heirs, estates, successors, and assigns or (2) any
ordinary course of business commercial transaction among the Claimants or
Released Parties.

 

4.2 LEGAL ACTION. The Claimants shall not take any action, alone or in
concert with others, to instigate, or to encourage, facilitate, incite, or seek
to cause others to instigate, legal proceedings with respect to the Claims
against the Released Parties or any of its the officers, directors, employees,
Affiliates or Associates, advisors or consultants.

4.3 Waiver of California Civil Code Section 1542. In executing this
Agreement, the parties waive and relinquish all rights and benefits afforded by
California Civil Code Section 1542 ("SECTION 1542"), and do so understanding and
acknowledging the significance and consequences of this specific waiver. Section
1542 states as follows:

"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR."





The waiver of Section 1542 provided by this paragraph is an essential term of
this Agreement without which the settlement would not have been reached.

SECTION 5 REMEDIES; CHOICE OF LAW; JURISDICTION

5.1 CHOICE OF LAW; CONSENT TO JURISDICTION. All disputes, claims, or
controversies arising out of or relating to this Agreement shall be governed by
and construed in accordance with the laws of the State of California without
regard to its rules of conflict of laws. Each of the parties hereby irrevocably
and unconditionally consents to submit to the sole and exclusive jurisdiction of
United States District Court for the Northern District of California, or any
state court sitting in the County of Santa Clara, State of California, or any
litigation arising out of or relating to this Agreement (and agrees not to
commence any litigation relating thereto except in such courts), waives any
objection to the laying of venue of any such litigation in such courts and
agrees not to plead or claim in any such court that such litigation brought
therein has been brought in any inconvenient forum. Each of the parties hereto
agrees that service of process may be made on such party by prepaid certified
mail with a proof of mailing receipt validated by the United States Postal
Service constituting evidence of valid service. Service so made shall have the
same legal force and effect as if served upon such party personally within the
State of California. 

5.2 REMEDIES. Each party hereto hereby acknowledges and agrees that
irreparable harm would occur in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or are
otherwise breached or threatened to be breached. It is accordingly agreed that
the parties shall be entitled to specific relief hereunder, including, without
limitation, an injunction or injunctions to prevent and enjoin breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof, in addition to any other remedy to which they may be entitled
at law or in equity. Any requirements for the securing or posting of any bond
with such remedy are hereby waived. The prevailing party or parties in such
action or proceeding for such relief shall be entitled to recover from the other
party or parties all costs and expenses, including but not limited to reasonable
attorneys' fees, court costs, witness fees, disbursements, and any other
expenses of litigation or negotiation incurred by such prevailing party or
parties. 

SECTION 6 MISCELLANEOUS

6.1 NONDISPARAGEMENT. Except as may otherwise be required by law, from and
after the date hereof, neither the Company nor any Participant shall directly or
indirectly make or issue or cause to be made or issued any disclosure,
announcement, or statement (including without limitation the filing of any
document or report with the SEC or any other governmental agency or any
disclosure to any journalist, member of the media, or securities analyst)
concerning the other party or, with respect to the Company, any of its past,
present or future directors, officers, employees, advisors or consultants or
other Affiliates or Associates, which disparages such other party or any of such
other party's respective past, present, or future directors, officers,
employees, advisors, consultants or other Affiliates or Associates.

6.2 COSTS AND EXPENSES. Except as provided in Section 3.5, all costs and
expenses incurred in connection with the transactions contemplated hereby,
including the negotiation, execution, delivery, and performance hereof, shall be
paid by the party incurring such cost or expense.

6.3 AMENDMENT; WAIVER. No amendment or waiver of any provision of this
Agreement shall be implied by any failure of any party to enforce any remedy
upon the violation of such provision, even if such violation is continued or
repeated subsequently, and in no event shall any amendment or waiver of any
provision of this Agreement be effective against any party hereto unless
expressed in writing signed by that party. No express waiver shall affect any
provision other than the one specified in such waiver, and that only for the
time and in the manner specifically stated.

6.4 HEADINGS. The headings and captions are for convenience only and shall
not be deemed to limit, construe, affect or alter the meaning of the underlying
provisions.

6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one and the same document.

6.6 SEVERABILITY. If any provision of this Agreement is or becomes invalid,
illegal or unenforceable in any jurisdiction for any reason, such invalidity,
illegality or unenforceability shall not affect the remainder of this Agreement,
and the remainder of this Agreement shall be construed and enforced as if such
invalid, illegal or unenforceable portion were not contained herein.

6.7 NOTICE. Any notice or other communication required or permitted hereunder
shall, unless otherwise expressly provided, be in writing and be deemed to have
been properly given, served and received (a) if delivered by messenger, when
delivered, (b) if mailed, on the third Business Day after deposit in the United
States Mail, certified or registered, postage prepaid,

return receipt requested, (c) if emailed or faxed, two hours after being
dispatched by email or fax if such second hour falls on a Business Day within
the hours of 9:00 a.m. through 5:00 p.m. of the time in effect at the place of
receipt, or at 9:00 a.m. on that Business Day if the second hour is before 9:00
a.m., or at 9:00 a.m. on the next Business Day thereafter if such second hour
is

later than 5:00 p.m. or other than on a Business Day, or (d) if delivered by
commercial overnight express courier, freight prepaid, for next day delivery,
the next Business Day after delivery to such courier; in every case addressed to
the party to be notified as follows:

In the case of the Company:

 

Heritage Commerce Corp

150 Almaden Boulevard

San Jose, California 95113

Attention:Richard L. Conniff

President and Chief Operating Officer

Heritage Commerce Corp

Telephone: (408) 494-4597

Facsimile: (408) 947- 6910

Email: Richard.conniff@herbank.com

 

with a copy to:

 

Bingham McCutchen LLP

Three Embarcadero Center, 18th Floor

San Francisco, California 94111

Attention: James M. Rockett, Esq.

Telephone:(415) 393-2025

Facsimile:(415) 393-2286

Email:james.rockett@Bingham.com

 

 

In the case of the Participants, or of any of them:

 

Gordon M. Bava, Esq.

Manatt, Phelps & Philips, LLP

11355 West Olympic Boulevard

Los Angeles, California 90064-1614

Telephone:(310) 312-4204

Facsimile:(310) 310-4224

Email:gbava@manatt.com






or to such other address(es) or addressee(s) as any party entitled to receive
notice hereunder shall designate to the others in the manner provided herein for
the service of notices. Rejection or refusal to accept delivery or inability to
deliver because of changed address or because no notice of changed address was
given, shall be deemed receipt.

6.8 SUCCESSORS. This Agreement shall inure to the benefit of, and be binding
upon, each party and that party's respective successors and assigns.

6.9 COMPLETE AGREEMENT. This Agreement contains the entire agreement among
the parties and supersedes any prior understanding or agreements among them
respecting any matter covered by this Agreement.

6.10 FURTHER ASSURANCES. Each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all tings necessary, proper or advisable to consummate and
make effective the transactions contemplated by this Agreement. If any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the parties shall take all such necessary action.

6.11 WAIVER OF JURY TRIAL. Each of the parties to this Agreement, after
consulting or having had the opportunity to consult with counsel, knowingly,
voluntarily and intentionally waives any right any of them may have to a trial
by jury in any litigation based upon or arising out of this Agreement or any
related instrument or agreement, or any of the transactions contemplated
thereby, or any course of conduct, dealing, statements (whether oral or
written), or actions of any of them. No party shall seek to consolidate, by
counterclaim or otherwise, any action in which a jury trial has been waived with
any other action in which a jury trial cannot be or has not been waived. These
provisions shall not be deemed to have been modified in any respect or
relinquished by any party except by a written instrument executed by all
parties.

 

THE NEXT PROVISION OF THIS DOCUMENT IS HEADED "SIGNATURES" AND INTENTIONALLY
BEGINS ON A SEPARATE PAGE

 

SIGNATURES

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement

effective as of the date first set forth above.

 
HERITAGE COMMERCE CORP

 

 

By: __/s/ William J. Del Biaggio, Jr._______________ 

William J. Del Biaggio, Jr.

Chairman of the Board

 

 

 











/s/ Brad L. Smith__________________________________ 

Brad L. Smith, Individually

 

 

 

THE FOLLOWING PARTICIPANTS, INDIVIDUALLY AND ON BEHALF OF THEIR AFFILIATES
AND ASSOCIATES 

	
________ /s/ James D'Amico_____________
	
______/s/ Arthur Carmichael, Jr.___________

	
    James "Jim" D'Amico
	
    Arthur "Art" Carmichael, Jr.





	
____/s/ William Del Biaggio, III___________
	
______ /s/ William D. Dallas______________

	
    William "Boots" Del Biaggio, III
	
    William "Bill" D. Dallas





	
_ __ /s/ Tracey Enfantino__________
	
______ /s/ Robert W. Peters___________

	
    Tracey Enfantino
	
    Robert W. Peters





	
__________/s/ Gary L. Thornhill___________
	
_________/s/ Ranson W. Webster________

	
    Gary L. Thornhill
	
    Ranson W. Webster





	
_____ /s/ Norman P. Creighton_____________
	
 

	
    Norman "Norm" P. Creighton
	
 




















Exhibit A

Via Facsimile ((202) 942-9638 and (202) 942-9530)

  and EDGAR NON-PUBLIC CORRESPONDENCE

Securities and Exchange Commission

   450 5th Street, N.W.

   Washington, D.C. 20549

 

Attention:Mara Ransom, Esq., Office of Mergers & Acquisitions

Todd Schiffman, Esq., Assistant Director, Office of Financial
Services
Re:Heritage Commerce Corp (000-23877): Proxy Contest re 2004

       Annual Meeting of
Shareholders           
              
             
             
 

 


Dear Sir or Madam:

The undersigned are members of the Concerned Shareholders Committee of
Heritage Commerce Corp., with the exception of Norman "Norm" P. Creighton, who
is a participant in the counter solicitation referred to herein. 

The Committee filed preliminary proxy material with the Commission on April
23, 2004. All of the undersigned are participants in the counter solicitation
with respect to the Annual Meeting of Shareholders of Heritage Commerce Corp.
scheduled for May 27, 2004 which is referred to in that preliminary proxy
material.

On behalf of themselves individually and their affiliates and associates,
including the Concerned Shareholders Committee of Heritage Commerce Corp. the
undersigned hereby formally notify the Commission that they have reached an
agreement with Heritage Commerce Corp under which such counter solicitation has
terminated. Accordingly, the undersigned and the Committee hereby withdraw their
preliminary proxy material.

 

Sincerely,

	
_____________________________________
	
_____________________________________

	
    James "Jim" D'Amico
	
    Arthur "Art" Carmichael, Jr.





	
_____________________________________
	
_____________________________________

	
    William "Boots" Del Biaggio, III
	
    William "Bill" D. Dallas





	
_____________________________________
	
_____________________________________

	
    Tracey Enfantino
	
    Robert W. Peters





	
_____________________________________
	
_____________________________________

	
    Gary L. Thornhill
	
    Ranson W. Webster





	
_____________________________________
	
 

	
    Norman "Norm" P. Creighton