-----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, MsqUIUdMEA3GreVYPipWPhyBQHzQyFiYwB3Txh36x9gnTB368J4sYei+hF5RMeQj B7u9rRH/5xviUaN7CNdPRA== 0001047469-98-028125.txt : 19980724 0001047469-98-028125.hdr.sgml : 19980724 ACCESSION NUMBER: 0001047469-98-028125 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980723 EFFECTIVENESS DATE: 19980723 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NATIONAL MERCANTILE BANCORP CENTRAL INDEX KEY: 0000714801 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 953819685 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59667 FILM NUMBER: 98670129 BUSINESS ADDRESS: STREET 1: 1840 CENTURY PARK EAST CITY: LOS ANGELES STATE: CA ZIP: 90067 BUSINESS PHONE: 3102772265 MAIL ADDRESS: STREET 1: 1840 CENTURY PARK EAST CITY: LOS ANGELES STATE: CA ZIP: 90067 S-8 1 S-8 As filed with the Securities and Exchange Commission on July 23, 1998 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- NATIONAL MERCANTILE BANCORP (Exact name of registrant as specified in its charter) California 95-3819685 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 1840 Century Park East 90067 Los Angeles, California (Zip code) (Address of principal executive offices) ------------------- NATIONAL MERCANTILE BANCORP 1996 STOCK INCENTIVE PLAN (Full title of the plan) ------------------- SCOTT A. MONTGOMERY President and Chief Executive Officer National Mercantile Bancorp 1840 Century Park East Los Angeles, California 90067 (Name and address of agent for service) (310) 277-2265 (Telephone number, including area code, of agent for service) Copy to: THOMAS D. PHELPS, ESQ. Manatt, Phelps & Phillips, LLP 11355 West Olympic Boulevard Los Angeles, California 90064 (310) 312-4000 CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------- Proposed Proposed Amount Maximum Maximum Amount of Title of Securities to be Offering Price Aggregate Registration to be Registered Registered (1) Per Share(2) Offering Price Fee - -------------------------------------------------------------------------------------------------------- Common Stock, without par value 173,500 $6.50 $1,127,750 $332.69 - -------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------
(1) This Registration Statement covers, in addition to the number of shares of Common Stock stated above, such indeterminate number of shares of Common Stock as may be issued upon exercise of options granted under the 1996 Stock Incentive Plan as a result of the adjustment provisions thereof. (2) Estimated solely for purposes of calculating the amount of the registration fee pursuant to Rule 457 based upon the closing sales price of the Common Stock as reported on the NASDAQ SmallCap Market System on July 17, 1998. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- EXPLANATORY NOTE AND INCORPORATION OF CERTAIN INFORMATION BY REFERENCE National Mercantile Bancorp (the "Registrant") hereby files this Registration Statement on Form S-8 with the Securities and Exchange Commission (the "Commission") to register 173,500 additional shares of the Registrant's Common Stock, without par value, for issuance pursuant to the Registrant's 1996 Stock Incentive Plan, as amended (the "Plan"), and such indeterminate number of shares as may become available under the Plan as a result of the adjustment provisions thereof. The contents of the Registration Statement on Form S-8 (File No. 333-33095), filed by the Registrant with the Commission on August 7, 1997, including exhibits thereto, are incorporated herein by reference. On April 23, 1998, shareholders of the Registrant approved an amendment to the Plan to increase from 110,010 to 283,510 the number of shares available for issuance pursuant to the Plan. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 8. EXHIBITS. Exhibit Number Description - ------- ----------- 4.1 Registrant's Amended and Restated Articles of Incorporation, dated June 20, 1997, incorporated by reference from Exhibit No. 3.1 on Form 10-K for the Registrant's fiscal year ended December 31, 1997. 4.2 Registrant's Amended and Restated Bylaws, dated December 18, 1992, incorporated by reference from Exhibit 3.2 on Form 10-K for the Registrant's fiscal year ended December 31, 1992. 5.1 Opinion of Manatt, Phelps & Phillips, LLP 23.1 Consent of Manatt, Phelps & Phillips, LLP (see Exhibit 5.1) 23.2 Consent of Deloitte & Touche, LLP 24.1 Power of Attorney (included on signature page) 99.1 National Mercantile Bancorp 1996 Stock Incentive Plan, as amended II-1 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 Los Angeles, State of California, on this 22nd day of July, 1998. NATIONAL MERCANTILE BANCORP By /S/ SCOTT A. MONTGOMERY ------------------------------------- Scott A. Montgomery President and Chief Executive Officer By /S/ JOSEPH W. KILEY III ------------------------------------- Executive Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Scott A. Montgomery and Joseph W. Kiley III his true and lawful attorney-in-fact and agent, each with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent with full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or his substitutes, may lawfully do or cause to be done by virtue hereof. II-2 Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE /s/ Robert E. Gipson Chairman of the Board July 22, 1998 - ------------------------- Robert E. Gipson /s/ Robert E. Thomson Vice Chair July 22, 1998 - ------------------------- Robert E. Thomson /s/ Scott A. Montgomery Director, President and July 22, 1998 - ------------------------- Chief Executive Officer Scott A. Montgomery (Principal Executive Officer) /s/ Joseph W. Kiley III Director, Executive Vice President July 22, 1998 - ------------------------- and Chief Financial Officer Joseph W. Kiley III (Principal Financial and Accounting Officer) /s/ Donald E. Benson Director July 22, 1998 - ------------------------- Donald E. Benson /s/ Joseph N. Cohen Director July 22, 1998 - ------------------------- Joseph N. Cohen /s/ Alan Grahm Director July 22, 1998 - ------------------------- Alan Grahm /s/ Dion G. Morrow Director July 22, 1998 - ------------------------- Dion G. Morrow II-3 EXHIBIT INDEX Exhibit Number - -------- 4.1 Registrant's Amended and Restated Articles of Incorporation, dated June 20, 1997, incorporated by reference from Exhibit No. 3.1 on Form 10-K for the Registrant's fiscal year ended December 31, 1997. 4.2 Registrant's Amended and Restated Bylaws, dated December 18, 1992, incorporated by reference from Exhibit 3.2 on Form 10-K for the Registrant's fiscal year ended December 31, 1992. 5.1 Opinion of Manatt, Phelps & Phillips, LLP 23.1 Consent of Manatt, Phelps & Phillips, LLP (see Exhibit 5.1) 23.2 Consent of Deloitte & Touche, LLP 24.1 Power of Attorney (included on signature page) 99.1 National Mercantile Bancorp 1996 Stock Incentive Plan, as amended II-4 EX-5.1 2 EXHIBIT 5.1 [LETTERHEAD] July 22, 1998 National Mercantile Bancorp 1840 Century Park East Los Angeles, California 90067 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement") to be filed by National Mercantile Bancorp, a California corporation (the "Company"), with the Securities and Exchange Commission (the "Commission") in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), of 173,500 shares of the Company's common stock, no par value (the "Common Stock"), that may be issued in the aggregate upon the exercise of awards granted under the Company's 1996 Stock Incentive Plan, as Amended and Restated (the "Plan"). In rendering this opinion, we have examined such documents and records as we deemed relevant, including, but not limited to, the following: 1. The Articles of Incorporation of the Company, as amended to date; 2. The Bylaws of the Company, as amended to date; 3. The Plan; 4. The Form of Nonqualified Stock Option Agreement and the Form of Incentive Stock Option Agreement (collectively the "Agreements") to be used in connection with the Plan; 5. Records of proceedings of the Company's Board of Directors and shareholders pertaining to the adoption or amendment of the Plan and the Agreements; and 6. The Registration Statement. National Mercantile Bancorp July 22, 1998 Page 2 With respect to the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as certified or reproduced copies. We also have obtained from officers of the Company certificates as to such factual matters as we consider necessary for the purpose of this opinion, and insofar as this opinion is based on such matters of fact, we have relied on such certificates. On the basis of the foregoing, subject to the assumptions, limitations and exceptions set forth herein, we are of the opinion that the 173,500 shares of Common Stock issuable by the Company upon the exercise of awards granted pursuant to the Plan will be, when issued and delivered against payment therefor in accordance with the Plan, the Agreements and the Registration Statement, duly authorized, validly issued, fully paid and non-assessable. For the purpose of rendering the opinions set forth herein, and with your consent, we have assumed, without investigation that: (i) all awards granted under the Plan to date have been, and all awards to be granted under the Plan will be, duly and validly granted in accordance with the terms of the Plan, (ii) the consideration for the shares of Common Stock to be issued pursuant to the exercise of such awards will be received prior to the issuance thereof, (iii) the shares of Common Stock to be issued pursuant to the exercise of such awards will be issued in accordance with the terms of the Plan and the Agreements, (iv) the Registration Statement will become effective under the Securities Act prior to the issuance of any shares of Common Stock under the Plan and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or be pending before the Commission, (v) a prospectus will be updated and delivered to participants in the Plan as required by the Securities Act and the rules and regulations promulgated by the Commission thereunder and (vi) the grant of such awards and the issuance of shares of Common Stock upon the exercise thereof will comply with the securities laws of each state or jurisdiction applicable thereto (other than the Securities Act). This opinion is limited to the current laws of the State of California and the Securities Act and the rules and regulations promulgated by the Commission thereunder, to present judicial interpretations thereof and to facts as they presently exist. In rendering this opinion, we have no obligation to revise or supplement it should the current laws of the State of California or the Securities Act or such rules and regulations be changed by legislative action, judicial decision or otherwise. This opinion is issued to you solely for use in connection with the Registration Statement and is not to be quoted or otherwise referred to in any financial statements of the Company or related document, nor is it to be filed with or furnished to any government agency or other person, without the prior written consent of the undersigned in each instance. National Mercantile Bancorp July 22, 1998 Page 3 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ MANATT, PHELPS & PHILLIPS, LLP EX-23.2 3 EXHIBIT 23.2 EXHIBIT 23.2 DELOITTE & TOUCHE LLP INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of National Mercantile Bancorp on Form S-8 of our report dated January 23, 1998 appearing in the Annual Report on Form 10-K of National Mercantile Bancorp for the year ended December 31, 1997. /s/ Deloitte & Touche LLP Los Angeles, California July 22, 1998 EX-99.1 4 EXHIBIT 99.1 EXHIBIT 99.1 NATIONAL MERCANTILE BANCORP AMENDED 1996 STOCK INCENTIVE PLAN Section 1. PURPOSE The purpose of the 1996 Stock Incentive Plan (the "1996 Plan") of National Mercantile Bancorp, a California corporation and a registered bank holding company under the Bank Holding Company Act of 1956, as amended (the "Company"), is to enable the Company to attract, retain and motivate its employees and independent contractors by providing for or increasing the proprietary interests of such employees and independent contractors in the Company, and to enable the Company to attract, retain and motivate its nonemployee directors and further align their interest with those of the shareholders of the Company by providing for or increasing the proprietary interest of such directors in the Company. 2. PERSONS ELIGIBLE Each of the following persons (each, a "Participant") shall be eligible to be considered for the grant of an Award (as hereinafter defined) hereunder: (a) any employee of the Company or any of its subsidiaries, including any director who is also such an employee; and (b) any independent contractor of the Company or any of its subsidiaries. Any director of the Company who is not also an employee of the Company (a "Nonemployee Director") shall receive Nonemployee Director Options (as hereinafter defined) pursuant to Section 10 hereof, but shall not otherwise participate in the 1996 Plan. 3. AWARDS (a) The Committee (as hereinafter defined) responsible for administration of the 1996 Plan is authorized to enter into any type of arrangement on behalf of the Company with a Participant that is not inconsistent with the provisions of the 1996 Plan and that, by its terms, involves or might involve the issuance of (i) shares of common stock of the Company ("Common Shares") or (ii) Derivative Security (as such term is defined in Rule 16a-1 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as such rule may be amended from time to time) with an exercise or conversion privilege at a price related to the Common Shares or with a value derived from the value of the Common Shares. The entering into of any such arrangement is referred to herein as the grant of an "Award." (b) Awards are not restricted to any specified form or structure and may include, without limitation, sales or bonuses of stock, restricted stock, stock options, reload stock options, stock purchase warrants, other rights to acquire stock, securities convertible into or redeemable for stock, stock appreciation rights, phantom stock, dividend equivalents, performance units or performance 1 shares, and an Award may consist of one such security or benefit, or two or more of them in tandem or in the alternative. (c) Awards may be issued, and Common Shares may be issued pursuant to an Award, for any lawful consideration as determined by the Committee, including, without limitation, services rendered by the recipient of such Award. (d) Subject to the provisions of the 1996 Plan, the Committee, in its sole and absolute discretion, shall determine all of the terms and conditions of each Award granted hereunder, which terms and conditions may include, among other things: (i) a provision permitting the recipient of such Award, including any recipient who is a director or officer of the Company, to pay the purchase price of the Common Shares or other property issuable pursuant to such Award, or such recipient's tax withholding obligation with respect to such issuance, in whole or in part, by any one or more of the following: (A) the delivery of cash; (B) the delivery of other property deemed acceptable by the Committee; (C) the delivery of previously owned shares of capital stock of the Company (including "pyramiding"); or (D) a reduction in the amount of Common Shares or other property otherwise issuable pursuant to such Award. (ii) a provision conditioning or accelerating the receipt of benefits pursuant to such Award, either automatically or in the discretion of the Committee, upon the occurrence of specified events, including, without limitation, a change of control of the Company (as defined by the Committee), an acquisition of a specified percentage of the voting power of the Company, the dissolution or liquidation of the Company, a sale of substantially all of the property and assets of the Company or an event of the type described in Section 7 hereof; or (iii) a provision required in order for such Award to qualify as an incentive stock option (an "Incentive Stock Option") under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); PROVIDED, HOWEVER, that no Award issued to any Nonemployee Director or any independent contractor of the Company shall qualify as an Incentive Stock Option. 2 Section 4. STOCK SUBJECT TO THE 1996 PLAN (a) At any time, the aggregate number of Common Shares issued or issuable pursuant to all Awards (including all Incentive Stock Options) granted under the 1996 Plan shall not exceed 283,510 shares subject to adjustment as provided in Section 7 hereof. (b) For purposes of Section 4(a) hereof, the aggregate number of Common Shares issued or issuable pursuant to Awards granted under the 1996 Plan shall at any time be deemed to be equal to the sum of the following: (i) the number of Common Shares that were issued prior to such time pursuant to Awards granted under the 1996 Plan, other than Common Shares that were subsequently reacquired by the Company pursuant to the terms and conditions of such Awards and with respect to which the holder thereof received no benefits of ownership such as dividends; plus (ii) the number of Common Shares that were otherwise issuable prior to such time pursuant to Awards granted under the 1996 Plan, but that were withheld by the Company as payment of the purchase price of the Common Shares issued pursuant to such Awards or as payment of the recipient's tax withholding obligation with respect to such issuance; plus (iii) the maximum number of Common Shares that are or may be issuable at or after such time pursuant to Awards granted under the 1996 Plan prior to such time. Section 5. DURATION Unless sooner terminated pursuant to Section 8 below, the 1996 Plan shall terminate on March 28, 2006. No Awards shall be granted under the 1996 Plan while the 1996 Plan is suspended or after it is terminated. Section 6. ADMINISTRATION (a) The 1996 Plan shall be administered by a committee (the "Committee") of the Board of Directors of the Company (the "Board") consisting of two or more directors, each of whom: (i) is a "disinterested person" (as such term is defined in Rule 16b-3 promulgated under the Exchange Act, as such Rule may be amended from time to time); and (ii) is an "outside director" within the meaning of Section 162(m) of the Code. Members of the Committee shall serve at the pleasure of the Board, and the Board may from time to time remove members from or add members to, the Committee. (b) Subject to the provisions of the 1996 Plan, the Committee shall be authorized and empowered to do all things necessary or desirable in connection with the administration of the 1996 Plan, including, without limitation, the following: 3 (i) adopt, amend and rescind rules and regulations relating to the 1996 Plan; (ii) determine which persons are Participants and to which of such Participants, if any, Awards shall be granted hereunder; (iii) grant Awards to Participants and determine the terms and conditions thereof, including the number of Common Shares issuable pursuant thereto; (iv) determine the terms and conditions of the Nonemployee Director Options that are automatically granted hereunder, other than the terms and conditions specified in Section 10 hereof; (v) determine whether, and the extent to which adjustments are required pursuant to Section 7 hereof; and (vi) interpret and construe the 1996 Plan and the terms and conditions of any Award granted hereunder. Section 7. ADJUSTMENTS If the outstanding shares of the class of Company stock then subject to the 1996 Plan are increased, decreased or exchanged for or converted into cash, property or a different number or kind of securities, or if cash, property or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, restructuring, reclassification, dividend (other than a regular cash dividend) or other distribution, stock split, reverse stock split or the like, or if substantially all of the property and assets of the Company are sold, then, unless the terms of such transaction shall provide otherwise, the Committee shall make appropriate and proportionate adjustments in: (i) the number and type of shares or other securities or cash or other property that may be acquired pursuant to Awards theretofore granted under the 1996 Plan; and (ii) the maximum number and type of shares or other securities that may be issued pursuant to Awards thereafter granted under the 1996 Plan. The determination of the Committee as to what adjustments shall be made pursuant to this section, and the extent thereof, shall be final and conclusive. No fractional shares of stock shall be issued under the 1996 Plan on account of any such adjustment. Section 8. AMENDMENT AND TERMINATION The Board may suspend or terminate the 1996 Plan at any time; PROVIDED, HOWEVER, that no such suspension or termination shall deprive the recipient of any Award theretofore granted under the 1996 Plan, without the consent of such recipient, of any of his or her rights thereunder or with respect thereto. 4 The Board may amend the 1996 Plan at any time and in any manner subject to the following limitations: (a) No such amendment shall deprive the recipient of any Award theretofore granted under the 1996 Plan, without the consent of such recipient, of any of his or her rights thereunder or with respect thereto; (b) Except as otherwise provided in Section 7 relating to adjustments upon changes in stock, no such amendment shall be effective unless approved by the affirmative vote of the holders of a majority of the outstanding shares of the Company present, represented and entitled to vote at a shareholders meeting or by the written consent of a majority of the outstanding shares of the Company where such shareholder approval is required by law or pursuant to the Articles of Incorporation or Bylaws of the Company; and (c) Section 10 hereof shall not be amended more than once every six (6) months, other than to comport with changes in the Code, the Employee Retirement Income Security Act, or the rules and regulations thereunder. Section 9. EFFECTIVE DATE The 1996 Plan shall be effective as of June 18, 1997, the date upon which it was approved by the shareholders of the Company; PROVIDED, HOWEVER, that no Common Shares may be issued under this Plan until it has been approved, directly or indirectly, by the affirmative vote of the holders (the "Shareholders") of a majority of the outstanding shares of the Company present, or represented, and entitled to vote at a meeting duly held in accordance with the laws of the State of California. Section 10. NONEMPLOYEE DIRECTOR OPTIONS (a) Any person elected or appointed to serve as a Nonemployee Director who has not previously served as a Nonemployee Director of the Company on or prior to October 1, 1996, shall be granted, on the first business day following the later of the date of such election or appointment or the date the 1996 Plan is approved by the Shareholders, an option to purchase 1,100 Common Shares without the requirement of any further action by the Committee. On the first business day following the date of the annual meeting of shareholders of the Company held in 1998, or any adjournment thereof (the "1998 Meeting"), any person who was a Nonemployee Director on or after the effective date of the 1996 Plan and who is re-elected to the Board at the 1998 Meeting shall be granted an option to purchase 550 Common Shares without the requirement of any further action by the Committee. Options that may be granted to newly-elected Nonemployee Directors or to re-elected Nonemployee Directors under this Section 10 shall be referred to collectively as the "Nonemployee Director Options." The date on which a Nonemployee Director Option is granted shall be the Date of Grant for such option. 5 (b) If, on any date upon which Nonemployee Director Options are to be automatically granted pursuant to this Section 10, the number of Common Shares remaining available for options under the 1996 Plan is insufficient for the grant to each Nonemployee Director entitled thereto of a Nonemployee Director Option to purchase the entire number of Common Shares specified in this Section 10, then a Nonemployee Director Option to purchase a proportionate amount of such available number of Common Shares (rounded to the nearest whole share) shall be granted to each Nonemployee Director entitled thereto on such date. (c) Each Nonemployee Director Option granted under the 1996 Plan shall become fully exercisable one year from the Date of Grant, provided that in the event that a Change of Control (as defined below) shall occur, such granted Nonemployee Director Option shall be immediately exercisable. (d) Each Nonemployee Director Option granted under the 1996 Plan shall expire upon the sixth anniversary of the Date of Grant. (e) Each Nonemployee Director Option shall have an exercise price equal to the aggregate Fair Market Value on the Date of Grant of the Common Shares subject thereto. (f) Payment of the exercise price of any Nonemployee Director Option granted under the 1996 Plan shall be made in full in cash concurrently with the exercise of such option; PROVIDED HOWEVER, that, in the discretion of the Board, the payment of such exercise price may instead be made: (i) in whole or in part, with Common Shares delivered concurrently with such exercise (such shares to be valued on the basis of the Fair Market Value of such shares on the date of such exercise), provided that the Company is not then prohibited from purchasing or acquiring Common Shares; or (ii) in whole or in part, by the delivery, concurrently with such exercise and in accordance with Section 220.3(e)(4) of Regulation T promulgated under the Exchange Act, of a properly executed exercise notice for such option and irrevocable instructions to a broker promptly to deliver to the Company a specified dollar amount of the proceeds of a sale of or a loan secured by the Common Shares issuable upon exercise of such option. (g) For purposes of this Section 10, the "Fair Market Value" of a Common Share or other security on any date (the "Determination Date") shall be equal to the average of the high bid and low asked prices per Common Share or unit of such other security on the business day immediately preceding the Determination Date in the market where the security is traded, or, if the Common shares or such other security were not quoted by any such organization on such immediately preceding business day, as determined by the Board. For purposes of this Section 10, the term "Change of Control" shall mean the occurrence of either of the following events: (a) the Company consolidates with or merges with or into any person or conveys, transfers or leases all or substantially all of its assets to any person, or any corporation consolidates with or merges into or 6 with the Company in any event pursuant to a transaction in which the outstanding voting stock or units of the Company is changed into or exchanged for cash, securities or other property, other than any such transaction where the outstanding voting stock or units of the Company is not changed or exchanged at all (except to the extent necessary to reflect a change in the jurisdiction of incorporation or organization of the Company) or where the outstanding voting stock or units of the Company is changed into or exchanged for voting stock or units of the surviving corporation or organization which is not redeemable, or no "person" or "group" owns immediately after such transaction, directly or indirectly, an amount of outstanding voting stock or units necessary to effect the change of control of, or influence over, the surviving corporation or organization, as the case may be, or (b) the Company is liquidated or dissolved or adopts a plan of liquidation or dissolution. (h) Each Nonemployee Director Option shall be nontransferable by the optionee other than by will or the laws of descent and distribution, and shall be exercisable during the optionee's lifetime only by the optionee or the optionee's guardian or legal representative. (i) Nonemployee Director Options are not intended to qualify as Incentive Stock Options. April 23, 1998 7 -----END PRIVACY-ENHANCED MESSAGE-----