-----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, VHQJU3oiqTFHGqASdFR74kodz9xdxFgOemvMHZy5Ru8Jr6xZSMwMy3zbG5tPoKcx Ftqw4745otUdTnlScI7iRA== 0000898432-06-000713.txt : 20060815 0000898432-06-000713.hdr.sgml : 20060815 20060814173733 ACCESSION NUMBER: 0000898432-06-000713 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20060815 DATE AS OF CHANGE: 20060814 EFFECTIVENESS DATE: 20060815 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAN JOAQUIN BANCORP CENTRAL INDEX KEY: 0001368883 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 205002515 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-136627 FILM NUMBER: 061032402 BUSINESS ADDRESS: STREET 1: 1000 TRUXTUN AVENUE CITY: BAKERSFIELD STATE: CA ZIP: 93301 BUSINESS PHONE: 661-281-0360 MAIL ADDRESS: STREET 1: 1000 TRUXTUN AVENUE CITY: BAKERSFIELD STATE: CA ZIP: 93301 S-8 1 forms8.txt FORM S-8 As filed with the Securities and Exchange Commission on August 14, 2006 Registration No. ____- ________ ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------- FORM S-8 Registration Statement Under The Securities Act of 1933 SAN JOAQUIN BANCORP (Exact name of Registrant as specified in its charter) California 20-5002515 -------------------- -------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1000 Truxtun Avenue Bakersfield, CA 93301 (Address of principal executive offices) (661) 281-0360 (Registrant's telephone number, including area code) ------------------------- San Joaquin Bancorp Stock Option Plan San Joaquin Bancorp 1999 Stock Incentive Plan (Full Title of the Plans) ------------------------- Stephen M. Annis Corporate Secretary 1000 Truxtun Avenue Bakersfield, CA 93301 (661) 281-0360 (Name, Address, and Telephone Number, Including Area Code, of Agent for Service) COPIES TO: Timothy S. McCann, Esq. John O. Sutton, Esq. Kirkpatrick & Lockhart Nicholson Graham LLP Four Embarcadero Center., 10th Floor San Francisco, CA 94111 Telephone: (415) 249-1000 Facsimile: (415) 249-1001 ------------------------- CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------- Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of Registered Registered(1) Offering Price per Share Aggregate Offering Price Registration Fee - ---------------------------------------------------------------------------------------------------------------------------- Common Stock, no par value per share 689,150 Shares $23.52 (2) $16,205,397.65 (2) $1,733.98 - ----------------------------------------------------------------------------------------------------------------------------
(1) This registration statement covers 89,100 shares of Common Stock that may be issued under the San Joaquin Bancorp Stock Option Plan and 357,415 shares of Common Stock that may be issued under the San Joaquin Bancorp 1999 Stock Incentive Plan. This registration statement also covers an indeterminate number of shares of Common Stock which may be issuable by reason of stock splits, stock dividends or similar transactions pursuant to Rule 416 of the Securities Act of 1933, as amended (the "Securities Act"). (2) Approximately $23.515, calculated in accordance with Rule 457 (c) and (h) under the Securities Act, solely for the purpose of calculating the amount of registration fee. Computation based upon shares underlying awards to be made under: (a) the San Joaquin Bancorp Stock Option Plan as follows: Offering Price Aggregate No. of Shares per Share Offering Price Fee 6,000.00 $8.25 $49,500.00 $5.30 14,520.00 $8.08 $117,321.60 $12.55 4,500.00 $8.08 $36,360.00 $3.89 12,780.00 $10.00 $127,800.00 $13.67 26,000.00 $15.00 $390,000.00 $41.73 3,000.00 $15.00 $45,000.00 $4.82 20,850.00 $12.00 $250,200.00 $26.77 1,500.00 $12.00 $18,000.00 $1.93 89,150.00 $1,034,181.60 $110.66 (b) the San Joaquin Bancorp 1999 Stock Incentive Plan Offering Price Aggregate No. of Shares per Share Offering Price Fee 20,850.00 $10.65 $222,052.50 $23.76 3,000.00 $10.65 $31,950.00 $3.42 2,000.00 $12.00 $24,000.00 $2.57 2,500.00 $11.00 $27,500.00 $2.94 23,600.00 $10.00 $236,000.00 $25.25 2,000.00 $10.25 $20,500.00 $2.19 3,200.00 $10.00 $32,000.00 $3.42 37,550.00 $8.25 $309,787.50 $33.15 4,400.00 $8.25 $36,300.00 $3.88 0.00 $9.00 $0.00 $0.00 0.00 $9.00 $0.00 $0.00 25,100.00 $9.50 $238,450.00 $25.51 7,000.00 $10.45 $73,150.00 $7.83 5,600.00 $9.50 $53,200.00 $5.69 0.00 $11.20 $0.00 $0.00 30,100.00 $12.00 $361,200.00 $38.65 10,000.00 $13.20 $132,000.00 $14.12 0.00 $13.00 $0.00 $0.00 5,800.00 $15.50 $89,900.00 $9.62 33,700.00 $21.50 $724,550.00 $77.53 10,000.00 $23.65 $236,500.00 $25.31 2,000.00 $21.63 $43,260.00 $4.63 1,000.00 $22.25 $22,250.00 $2.38 1,000.00 $21.00 $21,000.00 $2.25 6,000.00 $21.00 $126,000.00 $13.48 5,000.00 $26.00 $130,000.00 $13.91 31,777.00 $26.25 $834,146.25 $89.25 3,809.00 $28.87 $109,965.83 $11.77 6,573.00 $26.25 $172,541.25 $18.46 6,191.00 $28.87 $178,734.17 $19.12 7,000.00 $27.00 $189,000.00 $20.22 4,000.00 $31.00 $124,000.00 $13.27 34,715.00 $34.00 $1,180,310.00 $126.29 9,000.00 $37.40 $336,600.00 $36.02 1,650.00 $35.00 $57,750.00 $6.18 3,300.00 $35.00 $115,500.00 $12.36 8,000.00 $35.05 $280,400.00 $30.00 242,585.00 $34.63* $8,400,718.55 $898.88 600,000.00 $15,171,216.05 $1,623.32 * Pursuant to Rule 457(c), the average of the high (34.75) and low ($34.50) prices of the Registrant's Common Stock as reported on the OTC Bulletin Board on August 10, 2006 TOTAL (a) AND (b): 689,150.00 $23.515 $16,205,397.65 $1,733.98 EXPLANATORY NOTE This Registration Statement on Form S-8 relates to 689,150 shares of the Registrant's common stock without par value ("Common Stock"). 89,150 of the shares of Common Stock are issuable pursuant to options issued or to be issued under the San Joaquin Bancorp Stock Option Plan and 600,000 of the shares of Common Stock are issuable pursuant to options issued or to be issued under the 1999 Stock Incentive Plan (collectively, the "Plans"). The Plans were assumed by the Registrant pursuant to that certain Agreement and Plan of Reorganization by and among San Joaquin Bank, San Joaquin Reorganization Corp. and the Registrant, which assumption of the Plans became effective upon the consummation of the reorganization on July 31, 2006. On August 4, 2006 the Registrant filed a Form 8-K with the Securities and Exchange Commission as notice that the Registrant is the successor issuer to San Joaquin Bank pursuant to Rule 12g-3 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). As a result, the Registrant's Common Stock is deemed to be registered under Section 12(g) of the Exchange Act, and the Registrant will file reports, proxy statements and other information with the Securities and Exchange Commission. Prior to the filing of the Form 8-K (12g-3) on August 4, 2006, San Joaquin Bank filed reports pursuant to the Exchange Act with the Federal Deposit Insurance Corporation. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. Information required by Part 1, Item 1 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the introductory Note to Part I of Form S-8. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Information required by Part I, Item 2 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the introductory Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The Registrant is subject to the informational and reporting requirements of Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). The following documents filed with the Commission by the Registrant (Exchange Act File No. 000-52165) are incorporated in this registration statement by reference: o The Registrant's Current Report on Form 8-K, filed with the Commission pursuant to Rule 12(g)-3(a) dated August 3, 2006. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of the filing of such documents. Notwithstanding the foregoing, we are not incorporating any document or information deemed to be furnished and not filed in accordance with Commission rules. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. The company's authorized capital stock consists of 20,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, no par value per share ("Preferred Stock"). As of July 31, 2006, 3,477,722 shares of Common Stock were issued and outstanding and no shares of Preferred Stock were designated or outstanding. COMMON STOCK The holders of Common Stock are entitled to one vote for each share held of record on all matters submitted to a vote of the shareholders, except for the election of directors where shareholders are entitled to vote cumulatively if a shareholder gives notice of an intention to cumulate votes prior to the voting. A shareholder voting cumulatively may cast votes equal to the number of shares he, she or it owns times the number of directors to be elected in favor of one nominee or allocate such votes among the nominees as he, she or it determines. Subject to preferences that may be applicable to any outstanding shares of Preferred Stock, the holders of Common Stock are entitled to receive ratably such dividends as may be declared by the board of directors out of funds legally available for distribution. In the event of a liquidation, dissolution or winding up of the company, holders of the Common Stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences, if any, of any outstanding shares of Preferred Stock. Holders of Common Stock have no preemptive rights and no right to convert their Common Stock into any other securities. There are no redemption or sinking fund provisions applicable to the Common Stock. All outstanding shares of Common Stock are fully paid and nonassessable. PREFERRED STOCK Pursuant to the company's Articles of Incorporation, the board of directors has the authority, without further action by the shareholders, to issue up to 5,000,000 shares of Preferred Stock in one or more series and to fix the designations, rights, preferences, privileges and restrictions granted to or imposed on any unissued shares of Preferred Stock, including, dividend rights, conversion rights, voting rights, terms of redemption and liquidation preferences, any or all of which may be greater than the rights of the Common Stock. Depending upon the terms of Preferred Stock established by the board of directors, any or all series of Preferred Stock may have preference over the Common Stock with respect to dividends and other distributions and upon our liquidation. Such provisions may also include restrictions on the ability of the company to purchase shares of Common Stock or to purchase or redeem shares of a particular series of authorized Preferred Stock. If any shares of Preferred Stock are issued with voting powers, the voting power of the outstanding Common Stock would be diluted. ANTI-TAKEOVER PROVISIONS The company's Articles of Incorporation and Bylaws include a number of provisions that may have the effect of deterring hostile takeovers or delaying or preventing changes in control or management of the company. For instance, the company's Articles of Incorporation provides that all shareholder actions must be effected at a duly called meeting of stockholders and not by a consent in writing. In addition, the company's Bylaws limit who may call special meetings of shareholders. The company's Bylaws also establish procedures, including advance notice procedures, with regard to the nomination of candidates for election of directors and shareholder proposals. Finally, the ability of the board of directors to issue Preferred Stock from time to time as described above has an anti-takeover effect because the board of directors' authority to act is not conditioned on approval by the shareholders. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Articles of Incorporation and Bylaws provide for indemnification of its officers and directors to the fullest extent permitted by California law. Section 317 of the California Corporations Code governs indemnification of the directors and officers of the Registrant, generally. The Articles of Incorporation of the Registrant permit indemnification of officers and directors in excess of the indemnification otherwise provided by Section 317, subject to the limits on such excess indemnification set forth in Section 204 of the California Corporations Code. Under this Section 317, officers and directors may be indemnified against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with proceedings other than derivative suits, in which such persons were parties or threatened to be made parties. In order for the corporation to make indemnification, there must be a determination by (a) a majority vote of a quorum of the Board of Directors, consisting of directors who are not parties to such proceeding, (b) if such quorum of directors is not obtainable, by independent legal counsel in a written opinion, (c) approval of the shareholders pursuant to Section 153 of the California Corporations Code, with the shares owned by the person to be indemnified not being entitled to vote thereon, or (d) an order of the court in which such proceeding is or was pending that the officer or director acted in good faith in a manner such person reasonably believed to be in the best interests of the corporation, and in the case of a criminal proceeding, such person had no reasonable cause to believe the conduct of such person was unlawful. Section 317 further provides that indemnification may be paid in connection with derivative suits, in the same manner as described above, except that, with respect to derivative suits, the authority authorizing the indemnification must find that such person acted in good faith, in a manner such person believed to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under the circumstances. Court approval is required for indemnification of expenses or amounts incurred in respect of any claim or matter in which a director or officer has been adjudged to be liable to the corporation in the performance of such person's duty to the corporation. No indemnification of expenses can be made under Section 317 in settling or otherwise disposing of a threatened or pending action, with or without action which is settled or otherwise disposed of without court approval. The Registrant's Articles of Incorporation and Bylaws provide, among other things, for the indemnification of the Registrant's directors, officers and agents, and authorize the Board to pay expenses incurred by, or to satisfy a judgment or fine rendered or levied against, such agents in connection with any personal legal liability incurred by that individual while acting for the corporation within the scope of his or her employment. Such provisions of the Registrant's Articles of Incorporation and Bylaws are subject to certain limitations imposed under state and federal law. It is the policy of the Board of Directors that the Registrant's executive officers and directors shall be indemnified to the maximum extent permitted under applicable law and the Registrant's Articles of Incorporation and Bylaws. In addition, the Registrant is authorized to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them or incurred by them in such capacity. The Registrant maintains a directors and officers liability insurance policy that insures its directors and officers against certain liabilities. The Registrant's Articles of Incorporation also provide for the limitation or elimination of personal liability of the corporation's directors to the corporation or its shareholders for monetary damages, to the extent permitted by California law. However, under federal law, the federal bank regulators may seek monetary damages from bank or bank holding company directors in cases involving gross negligence or any greater disregard of the duty of care, notwithstanding any provisions of state law which may permit limitations on director liability in such circumstances. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant under the provisions in the Registrant's Articles of Incorporation and Bylaws, the Registrant has been informed that, in the opinion of the SEC, this kind of indemnification is against public policy as expressed in the securities Act, and is therefore unenforceable. Reference is made to "Undertakings" below with respect to the Registrant's undertaking concerning indemnification for liabilities arising under the Securities Act. ITEM 7. EXEMPTION FORM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. The Exhibit Index immediately preceding the exhibits filed herewith is incorporated herein by reference. ITEM 9. UNDERTAKINGS. The undersigned Registrant hereby undertakes: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. 2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4. That, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 5. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bakersfield, State of California, on this 14th day of August, 2006. SAN JOAQUIN BANCORP By: /s/ Bruce Maclin ------------------------------------- Bruce Maclin, Chief Executive Officer (Principal Executive Officer) POWER OF ATTORNEY We, the undersigned officers and directors of San Joaquin Bancorp, do hereby constitute and appoint Bart Hill or Stephen Annis, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. 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 dates indicated.
Names Title Date ----- ----- ---- Chief Executive Officer, Chairman of the /s/ Bruce Maclin Board and Director - --------------------------- (Principal Executive Officer) August 14, 2006 Bruce Maclin /s/ Bart Hill - --------------------------- President and Director August 14, 2006 Bart Hill Executive Vice President, Corporate /s/ Stephen Annis Secretary and Chief Financial Officer - --------------------------- (Principal Financial and Accounting Officer) August 14, 2006 Stephen Annis /s/ Donald S. Andrews - --------------------------- Director August 14, 2006 Donald S. Andrews /s/ Melvin D. Atkinson - --------------------------- Director August 14, 2006 Melvin D. Atkinson /s/ Louis J. Barbich - --------------------------- Director August 14, 2006 Louis J. Barbich /s/ Elvin G. Berchtold - --------------------------- Director August 14, 2006 Elvin G. Berchtold /s/ Rogers Brandon - --------------------------- Director August 14, 2006 Rogers Brandon /s/ Jerry Chicca - --------------------------- Director August 14, 2006 Jerry Chicca /s/ Robert Montgomery - --------------------------- Director August 14, 2006 Robert Montgomery /s/ Virginia Moorhouse - --------------------------- Director August 14, 2006 Virgina Moorhouse
EXHIBIT INDEX Exhibit Number Description - ------ ----------- 4.1 San Joaquin Bancorp Stock Option Plan 4.2 San Joaquin Bancorp 1999 Stock Incentive Plan 5.1 Opinion of Kirkpatrick & Lockhart Nicholson Graham LLP with respect to the legality of the shares being registered 23.1 Consent of Brown Armstrong Paulden McCown Starbuck & Keeter Accountancy Corporation 23.2 Consent of Kirkpatrick & Lockhart Nicholson Graham LLP (contained in Exhibit 5.1) 24.1 Power of Attorney (contained on signature page) EX-4 2 exhibit4-1.txt EXHIBIT 4.1 Exhibit 4.1 SAN JOAQUIN BANCORP STOCK OPTION PLAN MAY 1, 1989 (Amended September 26, 1989) (Amended March 22, 1994) (Amended July 19, 1994) (Amended May 20, 1997) (Amended July 31, 2006) 1. Purpose. ------- The purpose of the San Joaquin Bancorp Stock Option Plan (the "Plan") is to strengthen San Joaquin Bank (the "Bank"), and those corporations which are or hereafter become subsidiary corporations of the Bank, by providing to participating employees and directors added incentive for high levels of performance and for unusual efforts to increase the earnings of the Bank and its subsidiary corporations. The Plan seeks to accomplish these purposes and results by providing a means whereby such employees and directors may purchase shares of the common stock of San Joaquin Bancorp pursuant to options granted under the Plan. Effective July 31, 2006, San Joaquin Bancorp has assumed sponsorship of the Plan for the purpose of administering any and all outstanding option awards under the Plan on a prospective basis. 2. Administration. -------------- This Plan shall be administered by the Board of Directors of San Joaquin Bancorp (the "Board of Directors"). Any action of the Board of Directors with respect to administration of the Plan shall be taken pursuant to a majority vote, or to the unanimous written consent, of its members. Subject to the express provisions of the Plan, the Board of Directors shall have the authority to construe and interpret the Plan and to define the terms used therein, to prescribe, amend, and rescind rules and regulations relating to administration of the Plan, to determine the duration and purposes of leaves of absence which may be granted to participants without constituting a termination of their employment for purposes of the Plan, and to make all other determinations necessary or advisable for administration of the Plan. Determinations of the Board of Directors on matters referred to in this paragraph shall be final and conclusive. 3. Participation. ------------- All full-time, salaried officers and employees of the Bank and its subsidiary corporations (the "Employees") and all members of the Board of Directors of the Bank or a subsidiary corporation of the Bank (the "Directors") shall be eligible for selection to participate in the Plan. Employees of the Bank (including Directors who are Employees) will be granted "Incentive Stock Options." Directors of the Bank or of a subsidiary corporation, who are not Employees of the Bank or of a subsidiary corporation (the "Non-Employee Directors"), will be granted Non-Qualified Options under the Plan. Subject to the express provisions of the Plan, the Board of Directors shall select individuals from the eligible class to whom stock option agreements shall be granted and shall determine the terms and provisions of the respective stock option agreements (which need not be identical), the times at which such options Exhibit 4.1 shall be granted, and the number of shares subject to each option. An individual who has been granted an option may, if otherwise eligible, be granted additional options if the Board of Directors shall so determine. (a) Except as otherwise provided in the Plan, each option shall be exercisable on each of the first, second, third, fourth and fifth anniversary dates after the date of the grant as to twenty percent (20%) of the shares subject to the grant. (b) Subject to earlier termination as provided elsewhere in the Plan, each option, and all rights or obligations thereunder, by its terms shall expire not less than five (5) years nor more than ten (10) years from the date the option was granted. (c) Options granted to Non-Employee Directors shall not exceed in any calendar year an option to buy more than five hundred (500) shares of San Joaquin Bancorp's stock. 4. Stock Subject to the Plan. ------------------------- Subject to adjustment as provided in paragraph "13" hereof, the stock to be offered under the Plan shall be shares of the San Joaquin Bancorp's authorized but unissued common stock (hereafter called "stock"), and the aggregate amount of stock to be delivered upon exercise of all options granted under the Plan shall not exceed 463,000 shares. All shares of stock reserved for issuance under the Plan are available for grants of Incentive Stock Options. If any option shall expire for any reason without having been exercised in full, the unpurchased shares subject thereto shall again be available for purposes of the Plan. To the extent required by Section 260.140.45 of Title 10 of the California Code of Regulations, the total number of shares of stock issuable upon exercise of all outstanding options granted under this Plan or under any other outstanding options or warrants issued by San Joaquin Bancorp and the total number of shares of stock provided for under any stock bonus or similar plan of San Joaquin Bancorp shall not exceed the applicable percentage as calculated in accordance with the conditions and exclusions of Section 260.140.45 of Title 10 of the California Code of Regulations, based on the securities of San Joaquin Bancorp that are outstanding at the time the calculation is made. 5. Option Price. ------------ The purchase price of stock subject to each option shall be determined by the Board of Directors, but shall not be less than one hundred percent (100%) of the fair market value of such stock at the time such option is granted. The fair market value of such stock shall be determined in accordance with any reasonable valuation method, including the valuation methods described in Treasury Regulation Section 20.2031-2. The purchase price of any shares purchased shall be paid in full in cash at the time of each purchase. 6. Option Period. ------------- Each option and all rights or obligations thereunder shall expire on such date as the Board of Directors may determine, but not later than ten (10) years Exhibit 4.1 from the date of grant, and shall be subject to earlier termination as provided elsewhere in the Plan. 7. Continuation of Employment. -------------------------- Nothing contained in the Plan (or in any stock option agreement) shall obligate the Bank, San Joaquin Bancorp or any subsidiary corporation to employ any option holder ("optionee") for any period, or interfere in any way with the right of the Bank, San Joaquin Bancorp or any subsidiary corporation to reduce optionee's compensation or assure any optionee of remaining on the Bank's, San Joaquin Bancorp's or any subsidiary corporation's Board of Directors. 8. Exercise of Options. ------------------- Each option shall be exercisable in such installments, which need not be equal, and upon such contingencies as the Board of Directors shall determine. No option or installment thereof shall be exercisable except in respect of whole shares, and fractional share interests shall be disregarded except that they may be accumulated. In any given installment period, if an optionee does not purchase all the shares which the optionee is entitled to purchase in such installment period or a fractional share interest remains, the optionee's right to purchase the remaining shares or fractional shares shall continue until expiration of such option. Not less than ten (10) shares may be purchased at one time unless the number purchased is the total number which may be purchased under the option. 9. Nontransferability of Options. ----------------------------- Each option shall, by its terms, be nontransferable by the optionee other than by will or the laws of descent and distribution, and during the optionee's lifetime shall be exercisable only by the optionee. 10. Cessation of Employment. ----------------------- Except as provided in paragraphs "6" and "11" hereof, if an optionee who is an Employee ceases to be employed by the Bank or a subsidiary corporation (or in the case of a Non-Employee Director, such person ceases to be a Director of the Bank or a subsidiary corporation), for any reason other than his or her death or disability, the optionee's option shall expire not later than thirty (30) days thereafter. During the thirty-day period, such option shall be exercisable only as to those installments, if any, which accrued as of the date on which the optionee ceased to be employed by the Bank or such subsidiary corporation or ceased to be a Director of the Bank or subsidiary corporation. In the event of the termination of the employment of an Employee of the Bank or subsidiary corporation who shall remain on the Board of Directors of the Bank or a subsidiary corporation, such person's option shall continue in force in the same manner as options for other Directors, even as to shares in excess of those which could originally have been issued to a Non-Employee Director, but any new options granted to such person shall comply with the limits on options granted to Directors. Exhibit 4.1 11. Termination of Employment for Cause. ----------------------------------- If an optionee's employment by the Bank or a subsidiary corporation is terminated for cause (or in the case of a Non-Employee Director, such optionee is removed as a Director for cause), his or her option shall expire immediately. However, the Board of Directors may, in its sole discretion, within thirty (30) days of such termination, reinstate the option by giving written notice of such reinstatement to the optionee at his or her last known address. In the event of such reinstatement, the optionee may exercise the option only to such extent, for such time, and upon such terms and conditions, as if he or she had ceased to be employed by the Bank or such subsidiary corporation (or ceased to be a Director, as the case may be), upon the date of such termination for a reason other than cause or death. Termination for cause shall include termination for malfeasance or gross malfeasance or gross misfeasance in the performance of duties or conviction of illegal activity in connection therewith or any significant conduct detrimental to the interests of the Bank or a subsidiary corporation; and in any event, the determination of the Board of Directors with respect thereto shall be final and conclusive. 12. Death or Disability of Optionee. ------------------------------- Except as provided in paragraph "6" hereof, if any optionee dies or becomes disabled while employed by the Bank or a subsidiary corporation (or while acting as a Director), or during the thirty-day period referred to in paragraph "10"hereof, his or her option shall expire one (1) year after the date of such death or disability. After such death but before such expiration, the persons to whom the optionee rights under the option shall have passed by will or by the applicable laws of descent and distribution shall have the right to exercise such option to the extent that installments, if any, had accrued as of the date on which the optionee ceased to be employed by the Bank or such subsidiary corporation (or ceased to be a Director). 13. Adjustments Upon Changes in Capitalization. ------------------------------------------ If the outstanding shares of the stock of San Joaquin Bancorp are increased, decreased, changed into, or exchanged for a different number or kind of shares or securities of San Joaquin Bancorp, without receipt of consideration by San Joaquin Bancorp, through reorganization, merger, recapitalization, reclassification, stock split-up, stock dividend, stock consolidation, or otherwise, an appropriate and proportionate adjustment shall be made in the number and kind of shares as to which options may be granted. A corresponding adjustment changing the number or kind of shares and the exercise price per share allocated to unexercised options, or portions thereof, which shall have been granted prior to any such change shall be made. Any such adjustment, however, in an outstanding option, shall be made without change in the total price applicable to the unexercised portion of the option, but with a corresponding adjustment in the price for each share subject to the option. Adjustments under this paragraph shall be made by the Board of Directors, whose determination as to what adjustments shall be made, and the extent thereof, shall be final and conclusive. No fractional shares of stock shall be issued under the Plan on account of any such adjustment. 14. Terminating Events. ------------------ Not less than thirty (30) days prior to dissolution or liquidation of the Bank, or a reorganization, merger, or consolidation of the Bank with one or more corporations, as a result of which the Bank will not be the surviving Exhibit 4.1 corporation, or a sale of substantially all the assets and property of the Bank to another person, or in the event of any other transaction involving the Bank where there is a change in ownership of at least twenty-five percent (25%), except as may result from a transfer of shares to another corporation in exchange for at least eighty percent (80%) control of that corporation (a "Terminating Event"),the Board of Directors shall notify each optionee of the pendency of the Terminating Event. Upon delivery of said notice, any option granted prior to the Terminating Event shall be, notwithstanding the provisions of paragraph "8"hereof, exercisable in full and not only as to those shares with respect to which installments, if any, have then accrued, subject, however, to earlier expiration or termination as provided elsewhere in the Plan. Upon the date thirty (30) days after delivery of said notice, any option or portion thereof not exercised shall terminate; and upon the happening of the Terminating Event the Plan shall terminate, unless provision be made in connection with the Terminating Event for assumption of options theretofore granted, or substitution for such options of new options covering stock of a successor employer corporation, or a parent or subsidiary corporation thereof, solely at the option of such successor corporation or parent or subsidiary corporation, with appropriate adjustments as to number and kind of shares and prices. 15. Amendment and Termination by Board of Directors. ----------------------------------------------- The Board of Directors may at any time suspend, amend, or terminate the Plan and may, with the consent of the optionee, make such modification of the terms and conditions of his or her option as it shall deem advisable; provided that, except as permitted under the provisions of paragraph "13" hereof, any amendment or modification which would: (a) increase the maximum number of shares which may be purchased pursuant to options granted under the Plan, either in the aggregate or by an individual; (b) change the minimum option price; (c) increase the maximum term of options provided for herein; or (d) permit options to be granted to anyone other than a full-time, salaried officer or employee of the Bank or a subsidiary corporation, or a Director of the Bank or a subsidiary corporation; shall be deemed adopted and shall be effective on the date specified by action of the Board of Directors, subject to approval thereof by shareholders of San Joaquin Bancorp holding not less than a majority of the voting power of San Joaquin Bancorp voting in person or by proxy at a duly held stockholders' meeting, and subject to approval thereof of a majority of the "disinterested" shareholders voting in person or by proxy at a duly held stockholders' meeting at which a quorum of "disinterested" shareholders is present or represented by proxy. Shareholder approval may be made retroactive. The Board of Directors may grant to an optionee, if he or she is otherwise eligible, additional options or, with the consent of the optionee, may grant a new option in lieu of an outstanding option for a number of shares, at a purchase price and for a term which is greater or less than that of the earlier option, subject to the limitations of paragraphs "5" and "6" hereof. Exhibit 4.1 No option may be granted during any suspension of the Plan or after the Plan's termination. Amendment, suspension, or termination of the Plan shall not, without the consent of the optionee, alter or impair any rights or obligations under any option theretofore granted, except as provided in paragraph "13" hereof. 16. Time of Granting Options. ------------------------ The time an option is granted, sometimes referred to as the date of grant, shall be the day of the action of the Board of Directors; provided that, if appropriate resolutions of the Board of Directors indicate that an option is to be granted as of a future date, the time such option is granted shall be such future date. If action by the Board of Directors is taken by unanimous written consent of its members, the action of the Board of Directors shall be deemed to be at the time the last Board member signs the consent. 17. Privileges of Stock Ownership; Securities Law Compliance; Notice of Sale. ------------------------------------------------------------------- No optionee shall be entitled to the privileges of stock ownership as to any shares of stock not actually issued and delivered. No shares shall be purchased upon the exercise of any option unless and until any then applicable requirements of any regulatory agencies having jurisdiction, and of any exchanges upon which stock of San Joaquin Bancorp may be listed, shall have been fully complied with. San Joaquin Bancorp will diligently endeavor to comply with all applicable securities laws before any options are granted under the Plan and before any stock is issued pursuant to options. The optionee shall give San Joaquin Bancorp notice of any sale or other disposition of any such shares not more than five (5) days after such sale or disposition. 18. Effective Date of the Plan. -------------------------- The Plan shall be deemed adopted as of the date first shown herein and shall be effective immediately, subject to approval hereof by shareholders of the Bank holding not less than a majority of the voting power of the Bank voting in person or by proxy at a duly held stockholder's meeting, and subject to approval hereof by a majority of the "disinterested" shareholders voting in person or by proxy at a duly held stockholders' meeting at which a quorum of "disinterested" shareholders is present or represented by proxy. 19. Termination. ----------- The Plan terminated at the close of business on May 1, 1999, and no options shall be granted under the Plan thereafter, but such termination shall not affect any option theretofore granted. 20. Option Agreement. ---------------- Each option shall be evidenced by a written stock option agreement, and shall contain each of the provisions and agreements herein specifically required to be contained therein, and such other terms and conditions as are deemed desirable and are not inconsistent with the Plan. Exhibit 4.1 21. Exculpation and Indemnification. ------------------------------- San Joaquin Bancorp shall indemnify members of the Board of Directors, and of the Bank's board of directors, in any action brought against any such member or members to the maximum extent permitted by the applicable law. 22. Incentive and Non-Qualified Options. ----------------------------------- Notwithstanding anything to the contrary herein set forth, the following provisions shall be applicable to this Plan: (a) All full-time, salaried officers and employees of the Bank and its subsidiary corporations, Employee Directors and Non-Employee Directors of the Bank and its subsidiary corporations are eligible to participate in the Plan, and Employees and Employee Directors are eligible to receive Incentive and Non-Qualified Options. Non-Employee Directors are only eligible to receive Non-Qualified Options. However, no person shall be eligible for a grant of options if, at the time of grant, such person owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of San Joaquin Bancorp or any of its subsidiaries. Incentive stock options may be issued provided 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 all incentive stock option plans of the Bank) shall not exceed One Hundred Thousand Dollars ($100,000.00). Should it be determined that any incentive stock option granted pursuant to the Plan exceeds such maximum, such incentive stock option shall be considered to be a non-qualified option and not to qualify for treatment as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended, to the extent, but only to the extent, of such excess. (b) All options must be granted within ten (10) years from the date such Plan was originally adopted by the Board of Directors of the Bank or approved by the shareholders of the Bank, whichever is earlier; (c) No option granted pursuant to the Plan is exercisable after the expiration of ten (10) years from the date such option is granted; (d) All options granted prior to March 22, 1994 are intended to be Incentive Options. All options granted on or after March 22, 1994 shall be clearly labeled "Incentive Options" or "Non-Incentive Options". (e) In no event shall the option price under any option be less than the fair market value of the stock at the time the option is granted; (f) Such options are not transferable by any individual, otherwise than by will or by the laws of descent and distribution, and are exercisable during the lifetime of the optionee, and only by the optionee; (g) No option shall be granted to an Employee or Director at a time when the Employee or Director possesses more than ten percent (10%) of the total combined voting power of all classes of stock of the Bank; Exhibit 4.1 (h) The aggregate fair market value (determined as of the time the options are granted) of the stock for which any Employee or Director may be granted options in any calendar year shall not exceed One Hundred Thousand Dollars ($100,000.00) plus any unused limit carryover to such year; and (i) In the case of all options granted as "Incentive Options," the provisions of this paragraph and of all other provisions of the Plan shall be interpreted in a manner consistent with the provisions of Section 422 of the Internal Revenue Code of 1986, as amended, in order that such options shall constitute Incentive Stock Options as defined in that Section and the regulations thereunder. San Joaquin Bancorp shall keep accurate records of the numbers of Incentive Options and Non-Qualified Options issued under this Plan and at any time outstanding under the Plan. EX-4 3 exhibit4-2.txt EXHIBIT 4.2 Exhibit 4.2 SAN JOAQUIN BANCORP 1999 STOCK INCENTIVE PLAN Exhibit 4.2 SAN JOAQUIN BANCORP 1999 STOCK INCENTIVE PLAN ARTICLE 1. INTRODUCTION ------------ The name of the Plan is the "San Joaquin Bancorp 1999 Stock Incentive Plan," and the Plan hereby amends and restates the San Joaquin Bank 1999 Stock Incentive Plan in its entirety. The purpose of the Plan is to promote the long-term success of the Company and the creation of shareholder value by (a) encouraging Key Employees to focus on critical long-range objectives, (b) encouraging the attraction and retention of Key Employees with exceptional qualifications and (c) linking Key Employees directly to shareholder interests through increased stock ownership. The Plan seeks to achieve this purpose by providing for Awards in the form of Options (which may constitute incentive stock options or nonstatutory stock options) and Restricted Shares. The Plan shall be governed by, and construed in accordance with, the laws of the State of California (except their choice-of-law provisions). ARTICLE 2. ADMINISTRATION -------------- 2.1 COMMITTEE COMPOSITION. The Plan shall be administered by a Committee appointed by the Board; if the Board does not appoint a Committee, the Board shall act as the Committee. The Committee shall consist of two or more directors of the Company who shall satisfy the requirements of Rule 16b-3 (or its successor) under the Exchange Act with respect to the grant of Awards to persons who are officers or directors under Section 16 of the Exchange Act. The Board may also appoint one or more separate committees of the Board, each composed of one or more directors of the Company who need not qualify under Rule 16b-3, who may administer the Plan with respect to Key Employees who are not considered officers or directors under Section 16 of the Exchange Act, may grant Awards under the Plan to such Key Employees and may determine all terms of such Awards. 2.2 COMMITTEE RESPONSIBILITIES. The Committee shall: (a) select the Key Employees who are to receive Awards under the Plan; (b) determine the type, number, vesting requirements and other features and conditions of such Awards; (c) interpret the Plan; and (d) make all other decisions relating to the operation of the Plan. The Committee may adopt such rules or guidelines as it deems appropriate to implement the Plan. The Committee's determinations under the Plan shall be final and binding on all persons. ARTICLE 3. SHARES AVAILABLE FOR GRANTS --------------------------- 3.1 BASIC LIMITATION. Common Shares issued pursuant to the Plan shall be authorized but unissued shares or treasury shares of the Company. The aggregate number of Common Shares reserved under the Plan for award as Options and Restricted Shares shall be limited to 600,000 Common Shares, and all such Common Shares are available for award as ISOs. The limitation of this Section 3.1 shall be subject to adjustment pursuant to Article 9. To the extent required by Section 260.140.45 of Title 10 of the California Code of Regulations, the total number of Common Shares issuable upon exercise of all outstanding Options and awards of Restricted Shares granted under the Plan or under any other outstanding options or warrants issued by the Company and the total number of Common Shares provided for under any stock bonus or similar plan of the Company shall not exceed the applicable percentage as calculated in accordance with the conditions and exclusions of Section 260.140.45 of Title 10 of the California Code of Regulations, based on the securities of the Company that are outstanding at the time the calculation is made. 3.2 ADDITIONAL SHARES. If Options are forfeited or if Options terminate for any other reason before being exercised, then such Options shall again become available for Awards under the Plan. If Restricted Shares are forfeited before any dividends have been paid with respect to such Restricted Shares, then such Restricted Shares shall again become available for Awards under the Plan. ARTICLE 4. ELIGIBILITY ----------- 4.1 GENERAL RULES. Only Key Employees (including, without limitation, independent contractors who are not members of the Board) shall be eligible for designation as Participants by the Committee. 4.2 INCENTIVE STOCK OPTIONS. Only Key Employees who are common-law employees of the Company, a Parent or a Subsidiary shall be eligible for the grant of ISOs. In addition, a Key Employee who owns more than ten percent (10%) of the total combined voting power of all classes of outstanding stock of the Company or any of its Parents or Subsidiaries shall not be eligible for the grant of an ISO unless the requirements set forth in Section 422(c)(5) of the Code are satisfied. 4.3 LIMITS ON OPTIONS. Subject to adjustment under Article 9, no Key Employee shall receive Options to purchase Common Shares during any calendar year covering in excess of 25,000 Common Shares; provided, however, a newly hired Key Employee may receive Options to purchase up to 50,000 Common Shares during the portion of the calendar year remaining after his or her date of hire. ARTICLE 5. OPTIONS ------- 5.1 STOCK OPTION AGREEMENT. Each grant of an Option under the Plan shall be evidenced by a Stock Option Agreement between the Optionee and the Company. Such Option shall be subject to all applicable terms of the Plan and may be subject to any other terms that are not inconsistent with the Plan. The Stock 2 Option Agreement shall specify whether the Option is an ISO or an NSO. The provisions of the various Stock Option Agreements entered into under the Plan need not be identical. A Stock Option Agreement may provide that new Options will be granted automatically to the Optionee when he or she exercises the prior Options. 5.2 NUMBER OF SHARES. Each Stock Option Agreement shall specify the number of Common Shares subject to the Option and shall provide for the adjustment of such number in accordance with Article 9. 5.3 EXERCISE PRICE. Each Stock Option Agreement shall specify the Exercise Price; provided that the Exercise Price under an ISO shall in no event be less than one-hundred percent (100%) of the Fair Market Value of a Common Share on the date of grant. To the extent required by applicable law, the Exercise Price will not be less than 85% of the Fair Market Value of a Common Share on the date of grant, provided, however, the Exercise Price will not be less than 110% of the Fair Market Value of a Common Share on the date of grant if the Option is awarded to a Key Employee who owns more than ten percent (10%) of the total combined voting power of all classes of outstanding stock of the Company or any of its Parents or Subsidiaries. 5.4 EXERCISABILITY AND TERM. Each Stock Option Agreement shall specify the date when all or any installment of the Option is to become exercisable. To the extent required by applicable law, Options shall vest at least as rapidly as 20% annually over a five-year period. The Stock Option Agreement shall also specify the term of the Option; provided that the term of an ISO, and to the extent required by applicable law a NSO, shall in no event exceed ten (10) years from the date of grant. To the extent required by applicable law, Options shall be exercisable for a minimum period of six months following termination of employment due to death or disability and 30 days following termination of employment for all other reasons. A Stock Option Agreement may provide for accelerated exercisability in the event of the Optionee's death, disability or retirement or other events and may provide for expiration prior to the end of its term in the event of the termination of the Optionee's service. NSOs may also be awarded in combination with Restricted Shares, and such an Award may provide that the NSOs will not be exercisable unless the related Restricted Shares are forfeited. 5.5 EFFECT OF CHANGE IN CONTROL. Subject to the terms of any employment or other agreement, the Committee may determine, at the time of granting an Option or thereafter, that such Option shall become fully exercisable as to all Common Shares subject to such Option in the event that a Change in Control occurs with respect to the Company. If the Committee finds that there is a reasonable possibility that, within the succeeding six months, a Change in Control will occur with respect to the Company, then the Committee at its sole discretion may determine that any or all outstanding Options shall become fully exercisable as to all Common Shares subject to such Options. 5.6 MODIFICATION OR ASSUMPTION OF OPTIONS. Within the limitations of the Plan, the Committee may modify, extend or assume outstanding options or may accept the cancellation of outstanding options (whether granted by the Company or by another issuer) in return for the grant of new options for the same or a different number of shares and at the same or a different exercise price. The foregoing notwithstanding, no modification of an Option shall, without the consent of the Optionee, alter or impair his or her rights or obligations under such Option. 3 ARTICLE 6. PAYMENT FOR OPTION SHARES ------------------------- 6.1 GENERAL RULE. The entire Exercise Price of Common Shares issued upon exercise of Options shall be payable in cash at the time when such Common Shares are purchased, except as follows: (a) In the case of an ISO granted under the Plan, payment shall be made only pursuant to the express provisions of the applicable Stock Option Agreement. The Stock Option Agreement may specify that payment may be made in any form(s) described in this Article 6. (b) In the case of an NSO, the Committee may at any time accept payment in any form(s) described in this Article 6. 6.2 SURRENDER OF STOCK. To the extent that this Section 6.2 is applicable, payment for all or any part of the Exercise Price may be made with Common Shares which have already been owned by the Optionee for such duration as shall be specified by the Committee. Such Common Shares shall be valued at their Fair Market Value on the date when the new Common Shares are purchased under the Plan. 6.3 EXERCISE/SALE. To the extent that this Section 6.3 is applicable, payment may be made by the delivery (on a form prescribed by the Company) of an irrevocable direction to a securities broker approved by the Company to sell Common Shares and to deliver all or part of the sales proceeds to the Company in payment of all or part of the Exercise Price and any withholding taxes. 6.4 OTHER FORMS OF PAYMENT. To the extent that this Section 6.4 is applicable, payment may be made in my other form that is consistent with applicable laws, regulations and rules. ARTICLE 7. RESTRICTED SHARES ------------------ 7.1 TIME, AMOUNT AND FORM OF AWARDS. Awards under the Plan may be granted in the form of Restricted Shares. Restricted Shares may also be awarded in combination with NSOs, and such an Award may provide that the Restricted Shares will be forfeited in the event that the related NSOs are exercised. 7.2 PAYMENT FOR AWARDS. No cash consideration shall be required of the recipients of Awards under this Article 7. 7.3 VESTING CONDITIONS. Each Award of Restricted Shares shall become vested, in full or in installments, upon satisfaction of the conditions specified in the Stock Award Agreement. A Stock Award Agreement may provide for accelerated vesting in the event of the Participant's death, disability or retirement or other events. The Committee may determine, at the time of making an Award or thereafter, that such Award shall become fully vested in the event that a Change in Control occurs with respect to the Company. 4 ARTICLE 8. VOTING AND DIVIDEND RIGHTS -------------------------- The holders of Restricted Shares awarded under the Plan shall have the same voting, dividend and other rights as the Company's other shareholders. A Stock Award Agreement, however, may require that the holders of Restricted Shares invest any cash dividends received in additional Restricted Shares. Such additional Restricted Shares shall be subject to the same conditions and restrictions as the Award with respect to which the dividends were paid. Such additional Restricted Shares shall not reduce the number of Common Shares available under Article 3. ARTICLE 9. PROTECTION AGAINST DILUTION --------------------------- 9.1 ADJUSTMENTS. In the event of a subdivision of the outstanding Common Shares, a declaration of a dividend payable in Common Shares, a declaration of a dividend payable in a form other than Common Shares in an amount that has a material effect on the price of Common Shares, a combination or consolidation of the outstanding Common Shares (by reclassification or otherwise) into a lesser number of Common Shares, a recapitalization, a spin-off or a similar occurrence, the Committee shall make such adjustments as it, in its sole discretion, deems appropriate in one or more of: (a) the number of Options and Restricted Shares available for future Awards under Article 3, and Sections 4.3 and 16.2; (b) the number of Common Shares covered by each outstanding Option; or (c) the Exercise Price under each outstanding Option. Except as provided in this Article 9, a Participant shall have no rights by reason of any issue by the Company of stock of any class or securities convertible into stock of any class, any subdivision or consolidation of shares of stock of any class, the payment of any stock dividend or any other increase or decrease in the number of shares of stock of any class. 9.2 REORGANIZATIONS. In the event that the Company is a party to a merger or other reorganization, outstanding Awards shall be subject to the agreement of merger or reorganization. Such agreement may provide, without limitation, for the assumption of outstanding Awards by the surviving corporation or its parent, for their continuation by the Company (if the Company is a surviving corporation), for accelerated vesting and accelerated expiration, or for settlement in cash. ARTICLE 10. AWARDS UNDER OTHER PLANS ------------------------ The Company may grant awards under other plans or programs. Such awards may be settled in the form of Common Shares issued under this Plan. Such Common Shares shall be treated for all purposes as issued under the Plan and, when issued, shall reduce the number of Common Shares available under Article 3. 5 ARTICLE 11. LIMITATION ON RIGHTS -------------------- 11.1 RETENTION RIGHTS. Neither the Plan nor any Award granted under the Plan shall be deemed to give any individual a right to remain an employee, consultant or director of the Company, a Parent, a Subsidiary or an Affiliate. The Company and its Parents and Subsidiaries reserve the right to terminate the service of any employee, consultant or director at any time, and for any reason, subject to applicable laws, the Company's certificate of incorporation and by-laws and a written employment agreement (if any). 11.2 SHAREHOLDERS' RIGHTS. A Participant shall have no dividend rights, voting rights or other rights as a shareholder with respect to any Common Shares covered by his or her Award prior to the issuance of a stock certificate for such Common Shares. No adjustment shall be made for cash dividends or other rights for which the record date is prior to the date when such certificate is issued, except as expressly provided in Articles 7, 8, and 9. 11.3 REGULATORY REQUIREMENTS. Any other provision of the Plan notwithstanding, the obligation of the Company to issue Common Shares under the Plan shall be subject to all applicable laws, rules and regulations and such approval by any regulatory body as may be required. The Company reserves the right to restrict, in whole or in part, the delivery of Common Shares pursuant to any Award prior to the satisfaction of all legal requirements relating to the issuance of such Common Shares, to their registration, qualification or listing or to an exemption from registration, qualification or listing. ARTICLE 12. LIMITATION ON PAYMENTS ---------------------- 12.1 BASIC RULE. Subject to any employment or other agreement, any provision of the Plan to the contrary notwithstanding, in the event that the independent auditors most recently selected by the Board (the "Auditors") determine that any payment or transfer by the Company to or for the benefit of a Participant, whether paid or payable (or transferred or transferable) pursuant to the terms of this Plan or otherwise (a "Payment"),would be nondeductible by the Company for federal income tax purposes because of the provisions concerning "excess parachute payments" in Section 280G of the Code, then the aggregate present value of all Payments shall be reduced (but not below zero) to the Reduced Amount; provided that the Committee, at the time of making an Award under this Plan or at any time thereafter, may specify in writing that such Award shall not be so reduced and shall not be subject to this Article 12. For purposes of this Article 12, the "Reduced Amount" shall be the amount, expressed as a present value, which maximizes the aggregate present value of the Payments without causing any Payment to be nondeductible by the Company because of Section 280G of the Code. 12.2 REDUCTION OF PAYMENTS. If the Auditors determine that any Payment would be nondeductible by the Company because of Section 280G of the Code, then the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Participant may then elect, in his or her sole discretion, which and how much of the Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall advise the Company in writing of his or her election within ten (10) days of receipt of notice. If no such election is made by the Participant within such ten (10)-day period, then the Company may elect which and how much of the 6 Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Payments equals the Reduced Amount) and shall notify the Participant promptly of such election. For purposes of this Article 12, present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Auditors under this Article 12 shall be binding upon the Company and the Participant and shall be made within sixty (60) days of the date when a Payment becomes payable or transferable. As promptly as practicable following such determination and the elections hereunder, the Company shall pay or transfer to or for the benefit of the Participant such amounts as are then due to him or her under the Plan and shall promptly pay or transfer to or for the benefit of the Participant in the future such amounts as become due to him or her under the Plan. 12.3 OVERPAYMENTS AND UNDERPAYMENTS. As a result of uncertainty in the application of Section 280G of the Code at the time of an initial determination by the Auditors hereunder, it is possible that Payments will have been made by the Company which should not have been made (an "Overpayment") or that additional Payments which will not have been made by the Company could have been made (an "Underpayment"), consistent in each case with the calculation of the Reduced Amount hereunder. In the event that the Auditors, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Participant which the Auditors believe has a high probability of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Participant which he or she shall repay to the Company, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code; provided, however, that no amount shall be payable by the Participant to the Company if and to the extent that such payment would not reduce the amount which is subject to taxation under Section 4999 of the Code. In the event that the Auditors determine that an Underpayment has occurred, such Underpayment shall promptly be paid or transferred by the Company to or for the benefit of the Participant, together with interest at the applicable federal rate provided in Section 7872(f)(2) of the Code. 12.4 RELATED CORPORATIONS. For purposes of this Article 12, the term "Company" shall include affiliated corporations to the extent determined by the Auditors in accordance with Section 280G(d)(5) of the Code. ARTICLE 13. WITHHOLDING TAXES ----------------- 13.1 GENERAL. To the extent required by applicable federal, state, local or foreign law, a Participant or his or her successor shall make arrangements satisfactory to the Company for the satisfaction of any withholding tax obligations that arise in connection with the Plan. The Company shall not be required to issue any Common Shares or make any cash payment under the Plan until such obligations are satisfied. 13.2 SHARE WITHHOLDING. The Committee may permit a Participant to satisfy all or part of his or her withholding or income tax obligations by having the Company withhold all or a portion of any Common Shares that otherwise would be issued to him or her or by surrendering all or a portion of any Common Shares that he or she previously acquired. Such Common Shares shall be valued at their Fair Market Value on the date when taxes otherwise would be withheld in cash. Any payment of taxes by assigning Common Shares to the Company may be subject to 7 restrictions, including any restrictions required by rules of the Securities and Exchange Commission. ARTICLE 14. ASSIGNMENT OR TRANSFER OF AWARDS -------------------------------- 14.1 GENERAL. Except as provided in Article 13, or in a Stock Option Agreement, or as required by applicable law, an Award granted under the Plan shall not be anticipated, assigned, attached, garnished, optioned, transferred or made subject to any creditor's process, whether voluntarily, involuntary or by operation of law. An Option may be exercised during the lifetime of the Optionee only by him or her or by his or her guardian or legal representative. Any act in violation of this Article 14 shall be void. However, this Article 14 shall not preclude a Participant from designating a beneficiary (in the form and manner prescribed by the Committee) who will receive any outstanding Awards in the event of the Participant's death, nor shall it preclude a transfer of Awards by will or by the laws of descent and distribution. Any beneficiary designation which does not comply with the terms of the Plan or the procedures adopted by the Committee shall not be enforceable. 14.2 TRUSTS. Neither this Article 14 nor any other provision of the Plan shall preclude a Participant from transferring or assigning Restricted Shares to (a) the trustee of a trust that is revocable by such Participant alone, both at the time of the transfer or assignment and at all times thereafter prior to such Participant's death, or (b) the trustee of any other trust to the extent approved in advance by the Committee in writing. A transfer or assignment of Restricted Shares from such trustee to any person other than such Participant shall be permitted only to the extent approved in advance by the Committee in writing, and Restricted Shares held by such trustee shall be subject to all of the conditions and restrictions set forth in the Plan and in the applicable Stock Award Agreement, as if such trustee were a party to such agreement. ARTICLE 15. FUTURE OF THE PLAN ------------------ 15.1 TERM OF THE PLAN. The Plan (formerly named the San Joaquin Bank 1999 Stock Incentive Plan) was originally effective June 1, 1999, and is hereby amended and restated as of July 31, 2006, subject to approval by the Company's shareholders. The Plan shall terminate on May 31, 2009, unless otherwise terminated earlier under Section 15.2. 15.2 AMENDMENT OR TERMINATION. The Board may, at any time and for any reason, amend or terminate the Plan. An amendment of the Plan shall be subject to the approval of the Company's shareholders only to the extent required by applicable laws, regulations or rules. No Awards shall be granted under the Plan after the termination thereof. Except with respect to the application of Article 9, the termination of the Plan, or any amendment thereof, shall not alter or impair any outstanding Award previously granted under the Plan. ARTICLE 16. PAYMENT OF DIRECTOR'S FEES IN SECURITIES ---------------------------------------- 16.1 EFFECTIVE DATE. The provisions set forth in Section 16.2 shall be effective as of the effective date of this Plan; the provisions set forth in Section 16.3 shall not be effective unless and until the Board has determined to implement such provision. 8 16.2 GRANT OF OPTIONS TO OUTSIDE DIRECTORS. Outside Directors shall also be eligible to receive Options as described in this Section 16.2. (a) Each eligible Outside Director shall automatically be granted an NSO to purchase 1,000 Common Shares (subject to adjustment under Article 9) upon the conclusion of each regular annual meeting of the Company's shareholders. All such NSOs shall vest and become exercisable at the rate of twenty percent (20%) upon each one (1) year anniversary of the date the Option is granted to the Outside Director. (b) The Exercise Price under all NSOs granted to an Outside Director under this Section 16.2 shall be equal to one hundred percent (100%) of the Fair Market Value of a Common Share on the date of grant, payable in one of the forms described in Article 6; provided, however, the Exercise Price of an NSO granted to an Outside Director under this Section 16.2 shall not be less than 110% of the Fair Market Value of a Common Share on the date of grant if the Outside Director owns more than ten percent (10%) of the total combined voting power of all classes of outstanding stock of the Company or any of its Parents or Subsidiaries. (c) All NSOs granted to an Outside Director under this Section 16.2 shall terminate on the earlier of: (i) The 10th anniversary of the date of grant; or (ii) The date ninety (90) days after the termination of such Outside Director's service for any reason. 16.3 ELECTIONS TO RECEIVE NSOs. In addition to the provisions of Section 16.2, an Outside Director may elect to receive his or her annual retainer payments and meeting fees from the Company that would otherwise be paid in cash in the form of cash, NSOs, or a combination thereof. Such NSOs shall be issued under the Plan. An election under this Section 16.3 shall be filed with the Company on the prescribed form and subject to such Filing deadlines and election procedures as shall be established by the Committee. The number of NSOs to be granted to Outside Directors in lieu of annual retainers and meeting fees that would otherwise be paid in cash shall be calculated in a manner determined by the Board. The terns of such NSOs shall also be determined by the Board. ARTICLE 17. DEFINITIONS ----------- 17.1 "AFFILIATE" means any entity other than a Subsidiary, if the Company and/or one or more Subsidiaries own not less than 50% of such entity. 17.2 "AWARD" means any award of an Option or Restricted Shares under the Plan. 17.3 "BOARD" means the Company's Board of Directors, as constituted from time to time. 17.4 "CHANGE IN CONTROL" means the occurrence of any "person"(as defined in Section 13(d) of the Exchange Act), other than the Company, its Parent or Subsidiary or employee benefit plan or trust maintained by the Company, its 9 Parent or Subsidiary, becoming the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of more than 50% of the Common Shares of the Company outstanding at such time, without the prior approval of the Board. 17.5 "CODE" means the Internal Revenue Code of 1986, as amended. 17.6 "COMMITTEE" means a committee of the Board, as described in Article 2. 17.7 "COMMON SHARE" means one share of the common stock of the Company. 17.8 "COMPANY" means San Joaquin Bancorp, a California corporation. 17.9 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended. 17.10 "EXERCISE PRICE" in the case of an Option, means the amount for which one Common Share may be purchased upon exercise of such Option, as specified in the applicable Stock Option Agreement. 17.11 "FAIR MARKET VALUE" means the market price of Common Shares, determined by the Committee as follows: (a) If the Common Shares were traded over-the-counter on the date in question but were not classified as a national market issue, then the Fair Market Value shall be equal to the mean between the last reported representative bid and asked prices quoted by the NASDAQ system for such date; (b) If the Common Shares were traded over-the-counter on the date in question and were classified as a national market issue, then the Fair Market Value shall be equal to the last transaction price quoted by the NASDAQ system for such date; (c) If the Common Shares were traded on a stock exchange on the date in question, then the Fair Market Value shall be equal to the closing price reported by the applicable composite transactions report for such date; and (d) If none of the foregoing provisions is applicable, then the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems appropriate. Whenever possible, the determination of Fair Market Value by the Committee shall be based on the prices reported in the Western Edition of The Wall Street Journal. Such determination shall be conclusive and binding on all persons. 17.12 "ISO" means an incentive stock option described in Section 422(b) of the Code. 17.13 "KEY EMPLOYEE" means (a) a common-law employee of the Company, a Parent, a Subsidiary or an Affiliate; (b) a consultant or adviser who provides services to the Company, a Parent, a Subsidiary or an Affiliate as an 10 independent contractor; or (c) a director (including a non-employee director) of the Company, a Parent, a Subsidiary or an Affiliate. 17.14 "NSO" means an option that is not an ISO. 17.15 "OPTION" means an ISO or NSO granted under the Plan and entitling the holder to purchase Common Shares. 17.16 "OPTIONEE" means an individual or estate who holds an Option. 17.17 "OUTSIDE DIRECTOR" shall mean a member of the Board who is not a common-law employee of the Company, a Parent or a Subsidiary. 17.18 "PARENT" means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company, if each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date. 17.19 "PARTICIPANT" means an individual or estate who holds an Award. 17.20 "PLAN" means this San Joaquin Bancorp 1999 Stock Incentive Plan (formerly named the San Joaquin Bank 1999 Stock Incentive Plan), as it may be amended from time to time. 17.21 "Restricted Share" means a Common Share awarded pursuant to Article 7 of the Plan. 17.22 "SHARE" means one share of the common stock of the Company. 17.23 "STOCK AWARD AGREEMENT" means an agreement between the Company and a Participant which contains the terms, conditions and restrictions pertaining to Restricted Shares. 17.24 "STOCK OPTION AGREEMENT" means an agreement between the Company and an Optionee which contains the terms, conditions and restrictions pertaining to an Option. 17.25 "SUBSIDIARY" means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain17.26 . A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date. ARTICLE 18. EXECUTION --------- To record the adoption of the Plan by the Board, the Company has caused its duly authorized officer to affix the corporate name and seal hereto. 11 SAN JOAQUIN BANCORP By:_______________________________ Name:_____________________________ Title:____________________________ 12 EX-5 4 exhibit5-1.txt EXHIBIT 5.1 Exhibit 5.1 August 14, 2006 San Joaquin Bancorp 1000 Truxtun Avenue Bakersfield, CA 93301 Re: Registration of Common Stock on Form S-8 Ladies and Gentlemen: We have acted as counsel for San Joaquin Bancorp, a California corporation (the "Company"), in connection with a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933 for the registration of 689,150 shares (the "Shares") of common stock, no par value per share (the "Common Stock"), of the Company, reserved for future issuance under the San Joaquin Bancorp Stock Option Plan and the San Joaquin Bancorp 1999 Stock Incentive Plan (the "Plans") each of which were adopted by the Company's Board of Directors and approved by its stockholders as of July 31, 2006. You have requested our opinion as to the matter set forth below in connection with the Registration Statement. For purposes of rendering that opinion, we have examined the Registration Statement, the Company's Articles of Incorporation and Bylaws (the "Organizational Documents"), the Plans and the corporate actions of the Company that provide for the adoption of the Plans and we have made such other investigation as we have deemed appropriate. We have examined and relied upon certificates of public officials and, as to certain matters of fact that are material to our opinion, we have also relied on a certificate of an officer of the Company in rendering our opinion. In rendering our opinion, we also have made the assumptions that are customary in opinion letters of this kind. We have not verified any of those assumptions. Our opinions set forth below are limited to the California General Corporation Law, including the applicable provisions of the California Constitution and reported judicial decisions interpreting those laws. Based upon and subject to the foregoing, it is our opinion that the Shares are duly authorized for issuance by the Company and, when issued and paid for in accordance with the terms of the applicable Plan, the Organizational Documents and the California General Corporation Law, will be validly issued, fully paid, and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving our consent we do not thereby admit that we San Joaquin Bancorp August 14, 2006 Page 2 are in the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations thereunder. Very truly yours, /s/ KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP EX-23 5 exhibit23-1.txt EXHIBIT 23.1 Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference into this Registration Statement of San Joaquin Bancorp pertaining to the San Joaquin Bancorp Stock Option Plan and the San Joaquin Bancorp 1999 Stock Incentive Plan of our report dated February 3, 2006, with respect to the consolidated financial statements of San Joaquin Bank, predecessor to San Joaquin Bancorp included in its Annual Report on Form 10-K for the year ended December 31, 2005, filed with the Federal Deposit Insurance Corporation. /s/ Burt H. Armstrong - ---------------------------------------------------------------------------- Brown Armstrong Paulden McCown Starbuck & Keeter Accountancy Corporation Bakersfield, California August 14, 2006 -----END PRIVACY-ENHANCED MESSAGE-----