-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QNq+tk7SmRo59Lg0/J108dlpNbUxOR+6T0/gLPGf5gTm07ZJMFVbXxCUd0k9Tmwm OKP+JyRgTfEM9EW/KQ/KlA== /in/edgar/work/20000817/0000950005-00-000940/0000950005-00-000940.txt : 20000922 0000950005-00-000940.hdr.sgml : 20000922 ACCESSION NUMBER: 0000950005-00-000940 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000817 EFFECTIVENESS DATE: 20000817 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NORTH BAY BANCORP/CA CENTRAL INDEX KEY: 0001102595 STANDARD INDUSTRIAL CLASSIFICATION: [6021 ] IRS NUMBER: 680434802 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-43972 FILM NUMBER: 704762 BUSINESS ADDRESS: STREET 1: 1500 SOSCOL AVE CITY: NAPA STATE: CA ZIP: 94559 BUSINESS PHONE: 7072578500 MAIL ADDRESS: STREET 1: 1500 SOSCOL AVE CITY: NAPA STATE: CA ZIP: 94559 S-8 1 0001.txt FORM S-8 Registration No. 333- As Filed with the Securities and Exchange Commission on August 17, 2000 =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 Registration Statement Under the Securities Act of 1933 NORTH BAY BANCORP (Exact Name of Registrant as Specified in its Charter) CALIFORNIA 68-0434802 ---------- ---------- (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 1500 SOSCOL AVENUE, NAPA, CALIFORNIA 94558 (Address of Principal Executive Offices) NORTH BAY BANCORP STOCK OPTION PLAN (Full Title of the Plan) TERRY L. ROBINSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER 1500 SOSCOL AVENUE, NAPA CALIFORNIA 94558 (Name and Address of Agent for Service) (707) 257-8585 (Telephone Number, including Area Code, of Agent for Service) Copy to: R. Brent Faye, Esq. Lillick & Charles LLP Two Embarcadero Center, Suite 2700, San Francisco, California 94111 (415) 984-8200 CALCULATION OF REGISTRATION FEE =========================== ======================== ======================== ======================== ========================
Title of Each Class Of Amount To Be Proposed Maximum Proposed Maximum Amount of Securities To Be Registered(a) Offering Price Per Aggregate Offering Registration Fee Registered Share(b) Price(b) - --------------------------- ------------------------ ------------------------ ------------------------ ------------------------ Common stock 33,063 Shares $21.00 $694,323.00 $183.30 (No Par Value) =========================== ======================== ======================== ======================== ======================== (a) This Registration Statement relates to 33,063 new shares of the common stock of the Registrant issuable under the Plan in addition to 337,211 shares being carried forward from Registration Statement No. 333-93537 (b) Estimated pursuant to Rule 457(h) solely for the purpose of computing the registration fee, utilizing $21.00 as the average of the bid and asked price of North Bay Bancorp's common stock as of August 14, 2000. THE CONTENTS OF REGISTRATION STATEMENT NO. 333-93537 ARE INCORPORATED HEREIN BY REFERENCE. ===============================================================================================================================
ITEM 8. EXHIBITS. 5.1 Opinion re: Legality 23.1 Consent of Counsel is included with the opinion re legality as Exhibit 5.1 to the Registration Statement. 23.2 Consent of Arthur Andersen LLP as independent public accountants for North Bay. 24 Power of attorney (1) 99.1 Revised North Bay Bancorp Stock Option Plan (1) Filed with the Securities and Exchange Commission as Exhibit 24 to Registration Statement No. 333-93537 and incorporated herein by reference. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Napa, State of California, on August 14, 2000 NORTH BAY BANCORP /s/ Terry L. Robinson ---------------------------------- By: Terry L. Robinson, President & Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. /s/ Terry L. Robinson , Director, Principal August 14, 2000 - -------------------------------- Executive Officer Terry L. Robinson , Director - -------------------------------- Thomas N. Gavin David B. Gaw* , Director August 14, 2000 - -------------------------------- David B. Gaw , Director - -------------------------------- Fred J. Hearn, Jr. Conrad W. Hewitt* , Director August 14, 2000 - -------------------------------- Conrad W. Hewitt Harlan R. Kurtz* , Director August 14, 2000 - -------------------------------- Harlan R. Kurtz Richard S. Long* , Director August 14, 2000 - -------------------------------- Richard S. Long Thomas H. Lowenstein* , Director August 14, 2000 - -------------------------------- Thomas H. Lowenstein Thomas F. Malloy* , Director August 14, 2000 - -------------------------------- Thomas F. Malloy James Tidgewell* , Director August 14, 2000 - -------------------------------- James Tidgewell /s/ Lee-Ann Almeida , Principal Financial August 14, 2000 - -------------------------------- Officer Lee-Ann Almeida /s/ Terry L. Robinson - -------------------------------- *By: Terry L. Robinson as Attorney-in-Fact 3 EXHIBIT INDEX Exhibit Number Description 5.1 Opinion re: Legality 23.1 Consent of Counsel is included with the opinion re legality as Exhibit 5.1 to the Registration Statement. 23.2 Consent of Arthur Andersen LLP as independent public accountants for North Bay. 24 Power of attorney (1) 99.1 Revised North Bay Bancorp Stock Option Plan (1) Filed with the Securities and Exchange Commission as Exhibit 24 to Registration Statement No. 333-93537 and incorporated herein by reference. 4 EX-5.1 2 0002.txt OPINION RE: LEGALITY EXHIBIT 5.1 OPINION RE: LEGALITY 5 August 14, 2000 rfaye@lillick.com 415-984-8365 North Bay Bancorp 1500 Soscol Avenue Napa, California 94559 Ladies and Gentlemen: With reference to the Registration Statement on Form S-8 filed by North Bay Bancorp ("North Bay") with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of 33,063 shares of North Bay Common Stock, no par value, (the "Shares") to be issued in connection with the grant and exercise of options under the North Bay Bancorp Stock Option Plan (the "Stock Option Plan"): We are of the opinion that the Shares have been duly authorized and, when issued in accordance with the Stock Option Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement, and any amendments thereto, and the use of our name under the caption "Legal Matters" in the Registration Statement, and any amendments thereto. Very truly yours, /s/ Lillick & Charles LLP 6 EX-23.2 3 0003.txt CONSENT OF COUNSEL EXHIBIT 23.1 CONSENT OF ARTHUR ANDERSEN LLP AS INDEPENDENT PUBLIC ACCOUNTANTS 7 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANT As independent public accountants, we hereby consent to the incorporation by reference in this Form S-8 registration statement of our report dated February 25, 2000 included in North Bay Bancorp's Form 10-K for the year ended December 31, 1999 and to all references to our Firm included in this Form S-8 registration statement. /s/ Arthur Andersen LLP San Francisco, California August 11, 2000 8 EX-99.1 4 0004.txt REVISED NORTH BAY BANCORP OPTION PLAN EXHIBIT 99.1 REVISED NORTH BAY BANCORP STOCK OPTION PLAN 9 NORTH BAY BANCORP STOCK OPTION PLAN SECTION 1 PURPOSE AND RECITALS On November 1, 1999, North Bay Bancorp (the "Company") became the bank holding company of The Vintage Bank (the "Bank") through a corporate reorganization (the "Reorganization"). In the Reorganization, the Bank became the wholly-owned subsidiary of the Company. Pursuant to the terms of the reorganization the Amended and Restated 1993 Stock Option Plan of the Bank became the North Bay Bancorp Stock Option Plan. The Bank Stock Option Plan (the "1993 Plan") was originally approved by the Board of Directors of the Bank on March 4, 1993, approved by the stockholders of the Bank on April 27, 1993, and approved by the California Superintendent of Banks on March 25, 1993, and thereafter amended and restated by the Board of Directors of the Bank on March 17, 1997, and approved by the stockholders of the Bank on April 29, 1997, and amended by the Board of Directors of the Bank on July 21, 1997, and approved by the stockholders of the Bank on April 28, 1998. This document memorializes all amendments to the 1993 Plan as well as an amendment approved by the Board of Directors of the Company on November 15, 1999, which amendment did not require the approval of the stockholders of the Bank; conforming revisions consistent with the effect of the Reorganization; an amendment approved by the Board of Directors of the Company on January 18, 2000, which amendment did not require stockholder approval; and an amendment approved by the Board of Directors of the Company on March 20, 2000, and approved by stockholders of the Bank on May 9, 2000. The purpose of the North Bay Bancorp Stock Option Plan (the "Plan") is to provide a means whereby non-employee directors (subject to the restrictions contained in Sections 2 and 4), full-time, salaried officers, non-employee officers and employees of the Company and its wholly-owned bank subsidiaries may be granted incentive stock options and/or nonqualified stock options to purchase the Common Stock (as defined in Section 3) of the Company, in order to attract and retain the services of such directors, full-time, salaried officers, non-employee officers and employees, and to provide added incentive to them by encouraging stock ownership in the Company. SECTION 2 ADMINISTRATION 2.1 Plan Administration This Plan shall be administered by a Stock Option Plan Administration Committee (the "Committee") appointed by the Board of Directors of the Company (the "Board"). The number of members of the Committee shall be not less than three. The Committee shall be composed of the Personnel Committee of the Board excluding, however, any full-time, salaried officer or employee of the Company or any of its wholly-owned subsidiaries and provided that all of the members of the Committee shall be "disinterested persons" as defined in the rules and regulations promulgated under Section 16(b) of the Securities and Exchange Act of 1934 (the "Exchange Act"), as amended from time to time. 2.2 Procedures The Committee may hold meetings at such times and places as it shall determine. The acts of a majority of the members of the Committee present at meetings at which a quorum exists, or acts reduced to or approved in writing by all Committee members, shall be valid acts of the Committee. 2.3 Responsibilities Except for the terms and conditions explicitly set forth in this Plan, the Committee shall have the authority, in its discretion, to determine all matters relating to the options to be granted under this Plan, including selection of the individuals to be granted options, the number of shares to be subject to each option, the exercise price, all other terms and conditions of the options. Grants under the Plan need not be identical in any respect, even when made simultaneously. The interpretation and construction by the Committee of any terms or provisions of this Plan or any option issued hereunder, or of any rule or regulation promulgated in connection herewith, shall be conclusive and binding on all interested parties, so long a such interpretation and construction, with respect to incentive stock options, corresponds to the requirements of Section 422 of the Internal Revenue Code of 1986 (the "Code"), the regulations thereunder, and any amendments thereto. 2.4 Section 16(b) Compliance and Bifurcation of This Plan It is the intention of the Company that this Plan comply in all respects with Rule 16b-3 under the Exchange Act and, if any Plan provision is later found not to be in compliance with such Rule, the provisions shall be deemed null and void, and in all events this Plan shall be construed in favor of its meeting the requirements of Rule 16b-3. Notwithstanding anything in this Plan to the contrary, the Board, in its absolute discretion, may bifurcate this Plan so as to restrict, limit or condition the use of any provision of this Plan to participants who are officers and directors subject to Section 16(b) of the Exchange Act without so restricting, limiting or conditioning this Plan with respect to other participants. No options shall be granted under this Plan to any person if the granting of such option would not meet the requirements of Rule 16b-3 for exemption under Section 16(b) of the Exchange Act. 2.5 Information to Optionees The Company shall provide Optionees (defined in Section 4) with consolidated Financial Statements of the Company and its subsidiaries not less frequently than annually in accordance with Regulation 260.140.46 of the Rules of the California Corporations Commissioner. 2 SECTION 3 STOCK SUBJECT TO THIS PLAN The stock subject to this Plan shall be the Company's Common Stock (the "Common Stock"), presently authorized but unissued or now held or subsequently acquired by the Company. Subject to adjustments as provided in Section 7, the aggregate amount of Common Stock to be delivered upon the exercise of all options granted under this Plan shall not exceed 370,274 shares, as such Common Stock was constituted on the effective date of the Reorganization.1 If any option granted under this Plan shall expire, be surrendered, exchanged for another option, canceled or terminated for any reason without having been exercised in full, the unpurchased shares subject thereto shall thereupon again be available for purposes of this Plan, including for replacement options which may be granted in exchange for such surrendered, canceled or terminated options. SECTION 4 ELIGIBILITY An incentive stock option may be granted only to an individual who, at the time the option is granted, is a full-time salaried officer or employee of the Company or any of its wholly-owned subsidiaries. A nonqualified stock option may be granted to any director, full-time, salaried officer, non-employee officer or employee of the Company or any of its wholly-owned subsidiaries. Any party to whom an option is granted under this Plan shall be referred to hereinafter as an "Optionee." SECTION 5 TERMS AND CONDITIONS OF OPTIONS Options granted under this Plan shall be evidenced by written agreements which shall contain such terms, conditions, limitations and restrictions as the Committee shall deem advisable and which are not inconsistent with this Plan. Notwithstanding the foregoing, options shall include or incorporate by reference the following terms and conditions: 5.1 Number of Shares and Price The maximum number of shares that may be purchased pursuant to the exercise of each option and the price per share at which such option is exercisable (the "exercise price") shall be as established by the Committee, subject to the following limitations: (a) the exercise price of any option shall be not less than the fair market value per share of the Common Stock at the time the option is granted, which shall be determined by - -------------------------- (1) By the terms of the 1993 Plan, the aggregate amount of Common Stock reserved for issuance upon the exercise of all options granted was 140,000. After giving effect to the split of the Bank"s stock in 1997 and stock dividends since the 1993 Plan was adopted, the adjusted number of shares available for issuance under the 1993 Plan as of November 1, 1999, the effective date of the Reorganization, was 337,211. At the 2000 Annual meeting of Shareholders the number of shares was increased to 370,274 3 the Committee in accordance with any reasonable valuation method, including the valuation methods described in Treasury Regulation Section 20.2031-2; (b) with respect to incentive stock options granted to greater than 10% stockholders, the exercise price shall be as required by Section 6; (c) the number of shares subject to outstanding stock options held by any single optionee shall not exceed 10% of the total outstanding shares of Common Stock. 5.2 Non-Employee Directors (a) In accordance with subsection 5.2 of the 1993 Plan, every director of the Bank who was not also a full-time, salaried officer or employee (a "non-employee director") was granted an option to purchase 3,000 shares effective upon the latest of the following dates: (1) the date on which the Optionee had been a director for six months; (2) the date on which the 1993 Plan was approved by the Bank's stockholders; or (3) the date on which the 1993 Plan was approved by the California Superintendent of Banks. The exercise price of the options granted to the non-employee directors was the fair market value per share of the Common Stock at the time of the grant. The term with respect to the options granted to the non-employee directors was 5 years and 30 days exercisable pursuant to a vesting schedule entitling non-employee directors to exercise 20% of the total option following the completion of each year of service from the date the options were granted. (b) Notwithstanding any provision herein to the contrary, but subject to all limitations not inconsistent herewith, every non-employee director of the Company or any of its wholly-owned subsidiaries shall be eligible to be granted an option to purchase 6,000 shares.2 The time of any such grant shall be on the latest of the following dates: (1) the date on which this Plan is approved by the Bank's stockholders; or (2) the date on which the Optionee becomes a director. The exercise price of any option granted to a non-employee director shall be the fair market value per share of the Common Stock at the time of such grant. No options may be granted to a non-employee director except as provided in this paragraph. 5.3 Term and Maturity Subject to the restrictions contained in Section 6 with respect to granting incentive stock options to greater than 10% stockholders, the term of each incentive stock option shall be as established by the Committee and, if not so established, shall be 10 years from the date it is granted, but in no event shall the term of any incentive stock option exceed 10 years. The term of each nonqualified stock option shall be as established by the Committee and, if not so established, shall be 10 years; provided, however, that (i) the term with respect to any option previously granted to a non-employee director under subsection 5.2(a) or 5.2(b) shall remain 5 years and 30 days. To ensure that the Company will achieve the purpose and receive the benefits - -------------------------------- (2) By the terms of the 1993 Plan, the number of shares was 3,000. The number of shares has been increased to reflect the effect of the 1997 stock split. 4 contemplated in this Plan, any option granted to any Optionee shall (unless, with respect to employees who are not subject to Section 16 of the Exchange Act, the condition of this sentence is waived or modified in the agreement evidencing the option or by resolution adopted by the Committee) be exercisable according to the following schedule: Period of Optionee's Continuous Relationship With the Company From Portion of Total Option the Date the Option Is Granted Which is Exercisable - ------------------------------------ ----------------------- after 1 year 20% after 2 years 40% after 3 years 60% after 4 years 80% after 5 years 100% Notwithstanding the foregoing, any option granted to a non-employee director under subsection 5.2(b) shall be exercisable only according to the following schedule: Period of Optionee's Continuous Relationship With the Company From Portion of Total Option the Date the Option Is Granted Which is Exercisable - ------------------------------------ ----------------------- after 1 year 20% after 2 years 40% after 3 years 60% after 4 years 80% after 5 years 100% Notwithstanding the foregoing, in the event an Optionee is unable to exercise any non-qualified stock option on account of the Company's Insider Trading Policy, the exercise period shall be extended until the next succeeding trading window (determined in accordance with the Insider Trading Policy) closes. 5.4 Exercise Subject to the vesting schedules described in subsection 5.3 and to any additional holding period required by applicable law, each option may be exercised in whole or in part; provided, however, that no fewer than 20% of the total shares subject to the option (or the remaining shares then purchasable under the option, if less than 20%) may be purchased upon any exercise of option rights hereunder and that only whole shares will be issued pursuant to the exercise of any option. During an Optionee's lifetime, any stock options granted under this Plan are personal to him or her and are exercisable solely by such Optionee. Options shall be exercised by delivery to the Company of notice of the number of shares with respect to which the option is exercised, together with payment of the exercise price. 5 5.5 Payment of Exercise Price Payment of the option exercise price shall be made in full at the time the notice of exercise of the option is delivered to the Company and shall be in cash, bank certified or cashier's check or personal check (unless at the time of exercise the Committee in a particular case determines not to accept a personal check) for the Common Stock being purchased. 5.6 Withholding Tax Requirement The Company shall have the right to retain and withhold from any payment of cash or Common Stock under this Plan the amount of taxes required by any government to be withheld or otherwise deducted and paid with respect to such payment. At its discretion, the Company may require an Optionee receiving shares of Common Stock to reimburse the Company for any such taxes required to be withheld by the Company and withhold any distribution in whole or in part until the Company is so reimbursed. In lieu thereof, the Company shall have the right to withhold from any other cash amounts due or to become due from the Company to the Optionee an amount equal to such taxes or retain and withhold that number of shares having a fair market value not less than the amount of such taxes required to be withheld by the Company to reimburse the Company for any such taxes and cancel (in whole or in part) any such shares so withheld. If required by Section 16(b) of the Exchange Act, the election to pay withholding taxes by delivery of shares held by any person who at the time of exercise is subject to Section 16(b) of the Exchange Act shall be made within six months prior to the date the option exercise becomes taxable. 5.7 Nontransferability of Option Options granted under this Plan and the rights and privileges conferred hereby may not be transferred, assigned, pledged or hypothecated in any manner (whether by operation of law or otherwise) other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order as defined by the Internal Revenue Code or Title I of the Employment Retirement Income Security Act, or the rules thereunder, and shall not be subject to execution, attachment or similar process. Any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of any option under the Plan or of any right or privilege conferred hereby contrary to the Code or to the provisions of this Plan, or the sale or levy of any attachment or similar process upon the rights and privileges conferred hereby shall be null and void. Notwithstanding the foregoing, an Optionee may, during the Optionee's lifetime, designate a person who may exercise the option after the Optionee's death by giving written notice of such designation to the Committee. Such designation may be changed from time to time by the Optionee by giving written notice to the Committee revoking any earlier designation and making a new designation. 5.8 Termination of Relationship If the Optionee's relationship with the Company or any wholly-owned subsidiary ceases for any reason other than termination for cause, death or total disability, and unless by its terms the option sooner terminates or expires, then the Optionee may exercise, for a period of 90 days following termination of the relationship, that portion of the Optionee's option which is exercisable at the time of such cessation, but the Optionee's option shall terminate at the end of 6 such period following such cessation as to all shares for which it has not theretofore been exercised. If, in the case of an incentive stock option, an Optionee's relationship with the Company or any wholly-owned subsidiary changes (i.e., from employee to nonemployee, such as a consultant), such change shall constitute a termination of the Optionee's employment with the Company or wholly-owned subsidiary, and the Optionee's incentive stock option shall terminate in accordance with this subsection. If the relationship of an Optionee is terminated for cause, any option granted hereunder shall automatically terminate as of the first discovery by the Company or wholly-owned subsidiary of any reason for termination for cause, and such Optionee shall thereupon have no right to purchase any shares pursuant to such option. "Termination for cause" shall mean dismissal for dishonesty, conviction or confession of a crime punishable by law (except minor violations), fraud, serious misconduct, material regulatory violation or disclosure of confidential information, and shall include termination of any relationship pursuant to the order or request of any governmental regulatory agency. If an Optionee's relationship with the Company or any wholly-owned subsidiary is suspended pending an investigation of whether or not the Optionee shall be terminated for cause, all the Optionee's rights under any option granted hereunder likewise shall be suspended during the period of investigation. If an Optionee's relationship with the Company or any wholly-owned subsidiary ceases because of a total disability, the Optionee's option shall terminate at the end of a 12-month period following such cessation (unless by its terms it sooner terminates and expires). As used in this Plan, the term "total disability" refers to a mental or physical impairment of the Optionee which is expected to result in death or which has lasted or is expected to last for a continuous period of 12 months or more and which causes the Optionee to be unable, in the opinion of the Company and two independent physicians, to perform his or her duties for the Company or wholly-owned subsidiary and to be engaged in any substantial gainful activity. Total disability shall be deemed to have occurred on the first day after the Company and the two independent physicians have furnished their opinion of total disability to the Committee. For purposes of this subsection 5.7, with respect to incentive stock options, employment shall be deemed to continue while the Optionee is on military leave, sick leave or other bona fide leave of absence (as determined by the Committee). The foregoing notwithstanding, employment shall not be deemed to continue beyond the first 90 days of such leave, unless the Optionee's reemployment rights are guaranteed by statute or by contract. 5.9 Death of Optionee If an Optionee dies while he or she has a relationship with the Company or any wholly-owned subsidiary, any option held by such Optionee, to the extent that the Optionee would have been entitled to exercise such option, may be exercised within one year after his or her death by the personal representative of his or her estate or by the person or persons to whom the Optionee's rights under the option shall pass by will or by the applicable laws of descent and distribution. 7 5.10 Status of Stockholders Neither the Optionee nor any party to which the Optionee's rights and privileges under the option may pass shall be, or have any of the rights or privileges of, a stockholder of the Company with respect to any of the shares issuable upon the exercise of any option granted under this Plan unless and until such option has been exercised. 5.11 Continuation of Relationship Nothing in this Plan or in any option granted pursuant to this Plan shall confer upon any Optionee any right to continue in the employ of the Company or wholly-owned subsidiary or to interfere in any way with the right of the Company or wholly-owned subsidiary to terminate his or her employment or other relationship with the Company or wholly-owned subsidiary at any time. 5.12 Modification and Amendment of Option Subject to the requirements of Code Section 422 with respect to incentive stock options and to the terms and conditions and within the limitations of this Plan, the Committee may modify or amend outstanding options granted under this Plan. The modification or amendment of an outstanding option shall not, without the consent of the Optionee, impair or diminish any of his or her rights or any of the obligations of the Company under such option. Except as otherwise provided in this Plan, no outstanding option shall be terminated without the consent of the Optionee. Unless the Optionee agrees otherwise, any changes or adjustments made to outstanding incentive stock options granted under this Plan shall be made in such a manner so as not to constitute a "modification," as defined in Code Section 424(h), and so as not to cause any incentive stock option issued hereunder to fail to continue to qualify as an incentive stock option as defined in Code Section 422(b). 5.13 Limitation on Value for Incentive Stock Options As to all incentive stock options granted under the terms of this Plan, to the extent that the aggregate fair market value (determined at the time the incentive stock option is granted) of the stock with respect to which incentive stock options are exercisable for the first time by the Optionee during any calendar year (under this Plan and all other incentive stock option plans of the Company) exceeds $100,000, such options shall be treated as nonqualified stock options. The previous sentence shall not apply if the Internal Revenue Service publicly rules, issues a private ruling to the Company, any Optionee, or any legatee, personal representative or distributee of an Optionee or issues regulations changing or eliminating such annual limit. SECTION 6 GREATER THAN 10% STOCKHOLDERS 6.1 Exercise Price and Term of Incentive Stock Options If incentive stock options are granted under this Plan to employees who own more than 10% of the total combined voting power of all classes of stock of the Company, the term of such incentive stock options shall not exceed five years and the exercise price shall be not less than 8 110% of the fair market value of the Common Stock at the time the incentive stock option is granted. This provision shall control notwithstanding any contrary terms contained in an option agreement or any other document. 6.2 Attribution Rule For purposes of subsection 6.1, in determining stock ownership, an employee shall be deemed to own the stock owned, directly or indirectly, by or for his or her brothers, sisters, spouse, ancestors and lineal descendants. Stock owned, directly or indirectly, by or for a corporation, partnership, estate or trust shall be deemed to be owned proportionately by or for its stockholders, partners or beneficiaries. If an employee or a person related to the employee owns an unexercised option or warrant to purchase stock of the Company, the stock subject to that portion of the option or warrant which is unexercised shall not be counted in determining stock ownership. For purposes of this Section 6, stock owned by an employee shall include all stock actually issued and outstanding immediately before the grant of the incentive stock option to the employee. SECTION 7 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION The aggregate number and class of shares for which options may be granted under this Plan, the number and class of shares covered by each outstanding option and the exercise price per share thereof (but not the total price), and each such option, shall all be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock of the Company resulting from a split-up or consolidation of shares or any like capital adjustment, or the payment of any stock dividend. 7.1 Effect of Liquidation, Reorganization or Change in Control 7.1.1 Conversion of Options on Stock-for-Stock Exchange If the stockholders of the Company receive capital stock of another corporation ("Exchange Stock") in exchange for their shares of Common Stock in any transaction involving a merger, consolidation, acquisition of property or stock, separation or reorganization, all options granted hereunder shall be converted into options to purchase shares of Exchange Stock unless the Company and the corporation issuing the Exchange Stock, in their sole discretion, determine that any or all such options granted hereunder shall not be converted into options to purchase shares of Exchange Stock but instead shall terminate. The amount and price of converted options shall be determined by adjusting the amount and price of the options granted hereunder in the same proportion as used for determining the number of shares of Exchange Stock the holders of Common Stock receive in such merger, consolidation, acquisition of property or stock, separation or reorganization. The vesting schedule set forth in the option agreement shall continue to apply to the options granted for the Exchange Stock. 9 7.2 Fractional Shares In the event of any adjustment in the number of shares covered by any option, any fractional shares resulting from such adjustment shall be disregarded and each such option shall cover only the number of full shares resulting from such adjustment. 7.3 Determination of Committee to Be Final All Section 7 adjustments shall be made by the Committee, and its determination as to what adjustments shall be made, and the extent thereof, shall be final, binding and conclusive. Unless an Optionee agrees otherwise, any change or adjustment to an incentive stock option shall be made in such a manner so as not to constitute a "modification," as defined in Code Section 424(h), and so as not to cause his or her incentive stock option issued hereunder to fail to continue to qualify as an incentive stock option as defined in Code Section 422(b). SECTION 8 SECURITIES REGULATION Shares of Common Stock shall not be issued with respect to an option granted under this Plan unless the exercise of such option and the issuance and delivery of such shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, any applicable state securities laws, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, any applicable banking rules and regulations, and the requirements of any stock exchange upon which the shares may then be listed, and shall be further subject to the approval of counsel for the Bank with respect to such compliance, including the availability of an exemption from registration for the issuance and sale of any shares hereunder. Inability of the Company to obtain from any regulatory body having jurisdiction the authority deemed by the Company's counsel to be necessary for the lawful issuance and sale of any shares hereunder or the unavailability of an exemption from registration for the issuance and sale of any shares hereunder shall relieve the Company of any liability in respect of the nonissuance or sale of such shares as to which such requisite authority shall not have been obtained. 10 As a condition to the exercise of an option, the Company may require the Optionee to represent and warrant at the time of any such exercise that the shares are being purchased only for investment and without any present intention to sell or distribute such shares if, in the opinion of the counsel for the Company, such a representation is required by any relevant provision of the aforementioned laws. At the option of the Company, a stop-transfer order against any shares of stock may be placed on the official stock books and records of the Company, and a legend indicating that the stock may not be pledged, sold or otherwise transferred unless an opinion of counsel is provided (concurred in by counsel for the Company) stating that such transfer is not in violation of any applicable law or regulation may be stamped on stock certificates in order to assure exemption from registration. The Committee may also require such other action or agreement by the Optionee as may from time to time be necessary to comply with the federal and state securities laws. Should any of the Company's capital stock of the same class as the Common Stock subject to options granted hereunder be listed on a national securities exchange, all shares of Common Stock issued hereunder if not previously listed on such exchange shall be authorized by that exchange for listing thereon prior to the issuance thereof. SECTION 9 AMENDMENT AND TERMINATION 9.1 Action of Board of Directors The Board of Directors of the Company may at any time suspend, amend or terminate this Plan, provided that except as set forth in Section 7, the approval of the Company's stockholders shall have been obtained within 12 months before or after the adoption by the Board of any amendment which will: (a) increase the number of shares which are to be reserved for the issuance of options under this Plan; (b) permit the granting of stock options to a class of persons other than those presently permitted to receive stock options under this Plan; (c) reduce the minimum exercise price of options to be granted under this Plan; (d) increase the maximum term of options to be granted under this Plan; or (e) require stockholders' approval under applicable law, including Section 16(b) of the Exchange Act. Any amendment made to this Plan which would constitute a "modification" to incentive stock options outstanding on the date of such amendment shall not be applicable to such outstanding incentive stock options, but shall have prospective effect only, unless the Optionee agrees otherwise. 11 Notwithstanding the foregoing, no amendment to this Plan which changes the amount, price or timing of options which may be granted to non-employee directors shall be made more than once every six months, other than to comport with changes in the Internal Revenue Code, the Employee Retirement Income Security Act, or the rules thereunder. 9.2 Automatic Termination Unless sooner terminated by the Board, this Plan shall terminate 10 years from the date on which this Plan is adopted by the Board. No option may be granted after such termination or during any suspension of this Plan. The amendment or termination of this Plan shall not, without the consent of the Optionee, alter or impair any rights or obligations under any option theretofore granted under this Plan. SECTION 10 EFFECTIVENESS OF THIS PLAN This Plan became effective upon adoption by the Board and approval by the stockholders of the Bank. This plan was approved by the stockholders of the Bank on April 27, 1993 and by the California Superintendent of Banks of March 25, 1993. Adopted and amended by the Board of Directors of the Bank on March 17, 1997, approved by the stockholders of the Bank on April 29, 1997. An amendment made to include non-employee officers was adopted by the Board of Directors of the Bank on July 21, 1997 and approved by the stockholders of the Bank on April 28, 1998. Adopted and amended by the Board of Directors of the Company on November 15, 1999. An amendment made to delete former 7.1.1 which authorized the acceleration of unvested options; to modify prior Section 7.1.2 (now Section 7.1.1) to delete references to the former acceleration provision; and to add a new Section 2.5 "Information to Optionees," all as required as condition to issuance of a permit by the California Department of Corporations, was adopted by the Board of Directors of the Company on January 18, 2000, and did not require stockholder approval. An amendment increasing the number of shares subject to grant was adopted by the Board of Directors of the Company on March 20, 2000 and approved by the stockholders on May 9, 2000. 12 -----END PRIVACY-ENHANCED MESSAGE-----