As filed with the Securities and Exchange Commission on March 10, 2016
REGISTRATION NO. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HERITAGE OAKS BANCORP
(Exact name of registrant as specified in its charter)
California |
|
77-0388249 |
(State or jurisdiction of |
|
(I.R.S. Employer |
1222 Vine Street
Paso Robles, California 93446
(Address, including zip code, of Principal Executive Offices)
HERITAGE OAKS BANCORP 2015 EQUITY INCENTIVE PLAN
(Full title of the plan)
Simone Lagomarsino
Heritage Oaks Bancorp
President and Chief Executive Officer
1222 Vine Street
Paso Robles, California 93446
(805) 239-5200
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Jordan E. Hamburger, Esq.
Manatt, Phelps & Phillips, LLP
11355 W. Olympic Blvd.
Los Angeles, CA 90064
(310) 312-4331
(310) 914-5821facsimile
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
o |
|
Accelerated filer |
x |
|
|
|
|
|
Non-accelerated filer |
o (Do not check if a smaller reporting company) |
|
Smaller reporting company |
o |
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
| |||
Title of |
|
Amount |
|
Proposed |
|
Proposed |
|
Amount of |
| |||
Common Stock, no par value |
|
2,500,000 |
|
$ |
7.36 |
|
$ |
18,387,500 |
|
$ |
1,851.62 |
|
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares of common stock, which become issuable under the plan to which this registration relates by reason of any anti-dilution provisions, stock dividend, stock split, recapitalization or any other similar transaction or action taken effected without the receipt of consideration, which results in an increase in the number of the registrants outstanding shares of common stock.
(2) Estimated solely for the purpose of calculating the amount of the registration fee, pursuant to Rule 457(c) and (h) under the Securities Act. The computation with respect to unissued awards is based upon the average high and low sale prices of the registrants common stock as reported on the NASDAQ Capital Market on March 8, 2016.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Heritage Oaks Bancorp 2015 Equity Incentive Plan, as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the Commission) under the Securities Act of 1933 (the Securities Act). These documents are not being filed with the Commission, but constitute (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference. |
The following documents previously or concurrently filed by Heritage Oaks Bancorp (the Registrant) with the Commission are hereby incorporated by reference in this Registration Statement and the prospectus to which this Registration Statement relates (the Prospectus):
|
|
(a) |
The Registrants Annual Report on Form 10-K, for the fiscal year ended December 31, 2015 filed March 4, 2016 (File No. 000-25020); | |
|
|
|
|
|
|
|
(b) |
All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in Item 3(a) above; and | |
|
|
|
|
|
|
|
(c) |
The description of the Registrants common stock contained in the Registrants registration statement on Form S-1 filed with the Commission under section 12(g) of the Exchange Act on August 7, 2015 (File No. 333-206223), including any amendment or report filed for the purpose of updating such description. |
All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act (excluding any portions of such documents that have been furnished and not filed for purposes of the Exchange Act) after the filing of this Registration Statement, and 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 incorporated by reference into this Registration Statement and the Prospectus and to be a part hereof and thereof from the date of the filing of such documents. Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the Prospectus to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein, 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 and/or the Prospectus.
The Registrant shall furnish without charge to each person to whom the Prospectus is delivered, on the written or oral request of such person, a copy of any or all of the documents incorporated by reference, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference into the information that is incorporated by reference into this Registration Statement and/or the Prospectus). Requests should be directed to: Greg Gehlmann, Corporate Secretary, Heritage Oaks Bancorp, 1222 Vine Street, Paso Robles, California 93446, (805) 369-5238.
All information appearing in this Registration Statement is qualified in its entirety by the detailed information, including financial statements, appearing in the documents incorporated herein by reference.
Item 4. |
Description of Securities. |
Not applicable.
Item 5. |
Interests of Named Experts and Counsel. |
Not applicable.
Item 6. |
Indemnification of Directors and Officers. |
Registrant, as a California corporation, is subject to the California General Corporation Law (the CGCL), which provides a detailed statutory framework covering indemnification of any officer, director or other agent of a corporation who is made or threatened to be made a party to any legal proceeding by reason of his or her services on behalf of such corporation.
With respect to indemnification, the CGCL provides that to the extent any officer, director or other agent of a corporation is successful on the merits in defense of any legal proceeding to which such person is a party or is threatened to be made a party by reason of his or her service on behalf of such corporation, or in defense of any claim, issue, or matter arising as part of such legal proceeding, such agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith, but does not require indemnification in any other circumstance. The CGCL also provides that a corporation may indemnify any agent of the corporation, including officers and directors, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in a third party proceeding against such person by reason of his or her services on behalf of the corporation, provided the person acted in good faith and in a manner he or she reasonably believed to be in the best interests of such corporation. The CGCL further provides that in derivative suits a corporation may indemnify such a person against expenses incurred in such a proceeding, provided such person acted in good faith and in a manner he or she reasonably believed to be in the best interests of the corporation and its shareholders. Indemnification is not available in derivative actions (i) for amounts paid or expenses incurred in connection with a matter that is settled or otherwise disposed of without court approval or (ii) with respect to matters for which the agent shall have been adjudged to be liable to the corporation unless the court shall determine that such person is entitled to indemnification.
The CGCL permits the advancing of expenses incurred in defending any proceeding against an agent by reason of his or her service on behalf of the corporation upon the giving of a promise to repay any such sums in the event it is later determined that such person is not entitled to be indemnified. Finally, the CGCL provides that the indemnification provided by the statute is not exclusive of other rights to which those seeking indemnification may be entitled, by bylaw, agreement or otherwise, to the extent additional rights are authorized in a corporations articles of incorporation. The law further permits a corporation to procure insurance on behalf of its directors, officers and other agents against any liability incurred by any such individual, even if a corporation would not otherwise have the power under applicable law to indemnify the director, officer or other agent for such expenses.
The Articles of Incorporation and Bylaws of the Registrant provide that it shall, to the maximum extent permitted by the CGCL, have power to indemnify each of its agents against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact any such person is or was an agent of the corporation, and shall have power to advance to each such agent expenses incurred in defending any such proceeding to the maximum extent permitted by that law.
The Registrant presently maintains a policy of directors and officers liability insurance that provides coverage to permit indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. No.
Item 7. |
Exemption from Registration Claimed. |
Not applicable.
Item 8. |
Exhibits. |
The list of exhibits in the Exhibit Index to this Registration Statement is incorporated herein by reference.
Item 9. Undertakings
(a) 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 this 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 this 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% change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change in such information in this Registration
Statement; provided, however, that clauses (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those clauses is contained in Reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
2. That, for the purposes 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.
(b) The undersigned Registrant hereby undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
(c) 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 Securities 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 o and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 San Luis Obispo, State of California on March, 10, 2016.
|
HERITAGE OAKS BANCORP |
|
|
|
By: |
|
|
|
/s/ SIMONE F. LAGOMARSINO |
|
Simone F. Lagomarsino |
|
President and Chief Executive Officer |
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Simone F. Lagomarsino and Gregory Gehlmann, with full power to act alone, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, 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 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, as fully for 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 their substitutes, may lawfully do or cause to be done by virtue thereof.
In accordance with the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on March 10, 2016.
/s/ Michael J. Morris |
|
Chairman of the Board |
MICHAEL J. MORRIS |
|
|
|
|
|
/s/ Donald H. Campbell |
|
Vice Chairman of the Board |
DONALD H. CAMPBELL |
|
|
|
|
|
/s/ Simone F. Lagomarsino |
|
Director, President and Chief Executive Officer |
SIMONE F. LAGOMARSINO |
|
(Principal Executive Officer) |
|
|
|
/s/ Jason Castle |
|
Executive Vice President and Chief Financial Officer |
JASON CASTLE |
|
(Principal Financial Officer) |
|
|
|
/s/ Michael J. Behrman, M.D. |
|
Director |
MICHAEL J. BEHRMAN, M.D. |
|
|
|
|
|
/s/ Mark C. Fugate |
|
Director |
MARK C. FUGATE |
|
|
|
|
|
/s/ Howard N. Gould |
|
Director |
HOWARD GOULD |
|
|
|
|
|
/s/ Dolores T. Lacey |
|
Director |
DOLORES T. LACEY |
|
|
|
|
|
/s/ James J. Lynch |
|
Director |
JAMES J. LYNCH |
|
|
|
|
|
/s/ Daniel J. OHare |
|
Director |
DANIEL J. OHARE |
|
|
|
|
|
/s/ Michael E. Pfau |
|
Director |
MICHAEL E. PFAU |
|
|
|
|
|
/s/ Alexander F. Simas |
|
Director |
ALEXANDER F. SIMAS |
|
|
|
|
|
/s/ Stephen Yost |
|
Director |
STEPHEN YOST |
|
|
EXHIBIT INDEX
Exhibit No. |
|
Exhibit |
|
|
|
4.1 |
|
Articles of Incorporation of Heritage Oaks Bancorp incorporated by reference from Exhibit 3.1a to Registrants Registration Statement on Form S-4 filed with the SEC on April 8, 1994, Commission File No. 33-77504. |
|
|
|
4.2 |
|
Amendment to the Articles of Incorporation of Heritage Oaks Bancorp incorporated by reference from an exhibit to Registrants 10-KSB for the year ended December 31, 1997 filed with the SEC on March 27, 1998, Commission File No. 000-25020. |
|
|
|
4.3 |
|
Certificate of Amendment of Articles of Incorporation of Heritage Oaks Bancorp incorporated by reference from an exhibit to the Registrants Form 8-K filed with the SEC on March 5, 2009, Commission File No. 000-25020. |
|
|
|
4.4 |
|
Certificate of Amendment of Articles of Incorporation of the Company, incorporated by reference from an exhibit to Registrants Form 8-K filed with the SEC on June 11, 2010, Commission File No. 000-25020. |
|
|
|
4.5 |
|
Bylaws, as amended, of Heritage Oaks Bancorp incorporated by reference from the Registrants Registration Statement on Form S-3, filed with the SEC on April 23, 2009, Commission File No. 333-158732. |
|
|
|
4.6 |
|
Amendment to Article 3.3 of the Bylaws of Heritage Oaks Bancorp, incorporated by reference from the Form 8-K filed with the SEC on May 24, 2013, Commission File No. 000-25020. |
|
|
|
4.7 |
|
Heritage Oaks Bancorp 2015 Equity Incentive Plan incorporated by reference from Appendix A to Registrants Proxy Statement included on Form DEF-14A filed with the SEC on April 30, 2015, Commission File No. 000-25020.** |
|
|
|
4.8 |
|
Form of Stock Option Agreement for Heritage Oaks Bancorp 2015 Equity Incentive Plan** |
|
|
|
4.9 |
|
Form of Restricted Stock Agreement for Heritage Oaks Bancorp 2015 Equity Incentive Plan** |
|
|
|
5.1 |
|
Opinion of Manatt, Phelps & Phillips, LLP* |
|
|
|
23. 1 |
|
Consent of Crowe Horwath LLP* |
|
|
|
23.2 |
|
Consent of Manatt, Phelps & Phillips, LLP (included in Exhibit 5.1).* |
|
|
|
24.1 |
|
Power of Attorney (included in the signature page). |
*Filed herewith
**Management contract or compensatory plan agreement.
Exhibit 4.8
FORM OF STOCK OPTION AGREEMENT
HERITAGE OAKS BANCORP
STOCK OPTION AGREEMENT
2015 EQUITY INCENTIVE PLAN
Optionee: |
|
|
|
|
|
|
|
Award Date: |
|
|
|
|
|
|
|
Exercise Price per Share (1): |
|
|
|
|
|
|
|
Number of Shares (1): |
|
|
|
|
|
|
|
Expiration Date (2): |
|
|
|
|
|
|
|
NSO or ISO (3): |
|
|
|
|
|
|
|
Exercise/Vesting Schedule (2): |
|
[e.g., One-fourth (1/4) on the day of , 20 , and an additional one-forty-eighth (1/48) on the day of each month thereafter, until fully vested and exercisable on , 20 .] |
|
(1) Subject to adjustment under Sections 4.2 and 14.2 of the Plan.
(2) Subject to early termination if the Optionees employment or other service relationship terminates or in certain other circumstances. See Section 6.8 and Article 13 of the Plan for exceptions and additional details regarding possible adjustments, acceleration of exercisability and/or vesting and/or early termination of the Option.
(3) Subject to Section 6.10(b) of the Plan.
THIS AGREEMENT is entered into by and between HERITAGE OAKS BANCORP, a California corporation (the Company) and the Optionee named above, and the Option to purchase the number of Shares specified above is granted pursuant to and subject to the terms and conditions set forth in the Heritage Oaks Bancorp 2015 Equity Incentive Plan (the Plan) and this Agreement. Capitalized terms used herein and not otherwise defined herein shall have the meaning assigned by the Plan.
If the Company has designated the Option as an ISO above, the Company intends that the Option will be treated as an incentive stock option within the meaning of Section 422 of the Code (an ISO) to the maximum extent permissible under all of the ISO rules and restrictions. Any shares acquired upon exercise of the Option without compliance with all applicable ISO rules will be treated as acquired upon exercise of a Nonstatutory Stock Option (a NSO). If the Company has designated the Option as a NSO above, the Company intends that the Option will be treated in its entirety as a NSO and not as an ISO.
WHEREAS, pursuant to the Plan, the Company has granted to the Optionee with reference to services rendered and to be rendered to the Company, effective as of the Award Date, an Option upon the terms and conditions set forth herein and in the Plan.
NOW THEREFORE, in consideration of services rendered and to be rendered prior to exercise by the Optionee and the mutual promises made herein and the mutual benefits to be derived therefrom, the parties agree as follows:
1. Exercisability of Option. The Option shall vest and become exercisable during its term in accordance with the Exercise/Vesting Schedule as set forth above and with and subject to the applicable provisions of the Plan and this Agreement. The Option may be exercised only to the extent the Option is exercisable and vested, and, subject to Section 6.9 of the Plan, during the Optionees lifetime, only by the Optionee. In no event may the Optionee exercise the Option after the Expiration Date as provided above.
2. Exercise of Option. To the extent vested and exercisable, the Option may be exercised (for whole numbers of shares only) by the delivery to the Company of a written exercise notice in the form attached hereto stating the number of shares to be purchased pursuant to the Option accompanied by payment of the aggregate Exercise Price of the shares to be purchased and the payment or provision for any applicable employment or other taxes or withholding for taxes thereon. Subject to Sections 18.3 and 18.4 of the Plan, the Option shall be deemed to be exercised upon receipt and approval by the Company of such written exercise notice accompanied by the aggregate Exercise Price and any other payments so required.
3. Method of Payment. Payment of the aggregate Exercise Price shall be by any of the methods permitted under Section 6.6 of the Plan, or a combination thereof, at the election of the Optionee.
4. Continuance of Service Required. The vesting schedule requires continued Service through each applicable vesting date as a condition to the vesting of the applicable installment and rights and benefits under this Agreement. Partial Service, even if substantial, during any vesting period will not entitle the Optionee to any proportionate vesting or avoid or mitigate a termination of rights and benefits upon or following a termination of Service.
5. Effect of Termination of Service on Exercise Period. If the Optionees Service terminates, the Option and all other rights and benefits under this Agreement terminate, except that the Optionee, at any time within the applicable period specified in Section 6.8 of the Plan, may exercise the Option to the extent the Option is exercisable on the date of termination of Service and has not otherwise expired or terminated.
Notwithstanding the foregoing exercise periods after termination of Service, to the extent the Option otherwise is an ISO, the Option will qualify as an ISO only if it is exercised within the applicable exercise periods for ISOs and meets all other requirements of the Code for ISOs. If the Option is not exercised within the applicable exercise periods or does not meet such other requirements, the Option will be rendered a NSO.
6. Adjustments Upon Specified Events. As provided in Sections 4.2 and 14.2 of the Plan, upon the occurrence of certain events relating to or affecting the Companys stock contemplated by Section 4.2 of the Plan, the Committee shall, in such manner, to such extent (if any) and at such times as it deems appropriate and equitable in the circumstances, make adjustments in the number, amount and type of shares (or other securities or property) subject to the Option, the Exercise Price and the securities deliverable upon exercise of the Option (or any combination thereof), and the Committee may under Article 13 of the Plan provide for a cash payment and cancellation or the assumption, substitution or exchange of the Option or the shares or other securities subject to the Option in connection with a Change in Control of the Company. All rights of the Optionee hereunder are subject to such adjustments and other provisions of the Plan.
7. Optionee not a Stockholder. Neither the Optionee nor any other person entitled to exercise the Option shall have any of the rights or privileges of a stockholder of the Company as to any shares of Stock until the exercise of the Option and the issuance and delivery to him or her of a certificate evidencing the shares registered in his or her name. No adjustment will be made for dividends or other rights as a stockholder as to which the record date is prior to such date of delivery.
8. Non-Transferability of Option. The Option and any other rights of the Optionee under this Agreement or the Plan are nontransferable except as expressly provided in Section 6.9 of the Plan.
9. Notices. Any notice to be given under the terms of this Agreement shall be in writing and addressed to the Company at , CA , to the attention of [name or title], and to the Optionee at the address given beneath the Optionees signature hereto, or at such other address as either party may hereafter designate in writing to the other.
10. Effect of Award Agreement. This Agreement shall be binding upon and inure to the benefit of any successor or successors of the Company, except to the extent the Committee determines otherwise.
11. Entire Agreement; Governing Law. The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified except by means of a writing signed by the Company and the Optionee. The construction, interpretation, performance and enforcement of this Agreement and the Option shall be governed by the internal substantive laws, but not the choice of law rules, of the State of California.
12. Plan. The Option and all rights of the Optionee with respect thereto are subject to, and the Optionee agrees to be bound by, all of the terms and conditions of the provisions of the Plan, incorporated herein by reference, to the extent such provisions are applicable to Awards granted thereunder. The Optionee acknowledges receipt of a copy of the Plan, which is made a part hereof by this reference, and agrees to be bound by the terms thereof. Unless otherwise expressly provided in other Sections of this Agreement, provisions of the Plan that confer discretionary authority on the Committee do not (and shall not be deemed to) create any rights in the Optionee unless such rights are expressly set forth herein or are otherwise in the sole discretion of the Committee specifically so conferred by appropriate action of the Committee under the Plan after the date hereof.
AGREED AND ACKNOWLEDGED: | ||||
|
| |||
By: |
| |||
|
|
|
| |
|
|
(Optionees Signature) | ||
Its: |
|
|
| |
|
| |||
|
(City, State, Zip Code) | |||
|
| |||
|
| |||
|
(Address) | |||
Exhibit 4.9
HERITAGE OAKS BANCORP
2015 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
Heritage Oaks Bancorp, a California corporation (Company), hereby grants an Award of Restricted Stock, subject to the terms, conditions, and restrictions of the Companys 2015 Equity Incentive Plan (the Plan), and this Restricted Stock Award Agreement, including Appendix A attached hereto (the Restricted Stock Award Agreement and Appendix A are collectively referred to as the Award Agreement). The capitalized terms used in the Award Agreement that are defined in the Plan shall have the same meanings herein as are set forth in the Plan.
Grantee: [name]
Grant Date [date]
Total Number of Shares Granted [number]
Lapse of Restrictions:
The restrictions imposed on the Restricted Stock shall lapse as set forth below. Except as otherwise provided in the Award Agreement, Grantee will not be eligible to retain Shares of the Restricted Stock unless he or she is employed by the Company or one of its Subsidiaries on the applicable date, as set forth below. Such restrictions shall lapse with respect to:
[number] Shares on [date]
[number] Shares on [date]
[number] Shares on [date]
[number] Shares on [date]
Termination of Service:
In the event of Grantees termination of employment with the Company and its Subsidiaries, whether such termination of employment is by the Company or by Grantee, the Restricted Stock shall have been earned only to the extent that the restrictions on the Restricted Stock have lapsed in accordance with the schedule set forth above and shall not accelerate on a pro rata (or any other) basis. Upon such termination of employment, Grantee shall forfeit the balance of such Restricted Stock as to which the restrictions have not yet lapsed, and the Restricted Stock so forfeited shall be returned to the Company.
HERITAGE OAKS BANCORP | |||
|
By: |
|
|
|
|
| |
|
Title: |
|
|
Grantee acknowledges and represents that Grantee is familiar with the terms and provisions of this Award Agreement and hereby accepts same subject to all its terms and provisions hereof. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board of Directors or its duly appointed Committee upon any questions arising under the Plan.
Dated: |
|
|
|
|
Grantee Signature |
APPENDIX A
TERMS AND CONDITIONS FOR RESTRICTED STOCK
1. Grant. The Company grants to Grantee an Award for the number of Shares of Restricted Stock set forth in the Award Agreement, subject to the terms and conditions of the Plan, which is incorporated herein by reference. In the event of a conflict between the terms and conditions of the Plan and this Award Agreement, the terms and conditions of the Plan shall prevail.
2. Term. Subject to earlier lapse of restrictions for the Shares of Restricted Stock as provided in the Plan, the restrictions set forth herein shall lapse in accordance with the provisions of Section 4 below. This agreement shall terminate when all of the Shares of Restricted Stock either have vested in accordance with Section 4 or have been forfeited upon Grantees termination of employment with the Company and its Subsidiaries.
3. Restrictions on Transfer. The Award shall be nontransferable and shall not be assignable, alienable, saleable, or otherwise transferable by Grantee other than by will or the laws of descent and distribution or pursuant to a domestic relations order (as defined in Code Section 414(p)(1)(B)). Shares of Stock that have vested and are no longer subject to restrictions pursuant to Section 4 may be transferred by Grantee, subject to applicable federal and state securities law restrictions. The terms of this Award Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of Grantee. No non-permitted transferee of Grantee shall have any right in or claim to any Restricted Stock.
4. Lapse of Restrictions.
(a) Time Vesting. The restrictions shall lapse with respect to the Shares of Restricted Stock covered by this Award, in the installments set forth in the Award Agreement, provided that Grantees service as an Employee continues through the specified dates.
(b) Change in Control. Upon a Change in Control as defined in Section 2.7 of the Plan, the Board or the Committee may make any determinations and take any actions permitted under Article 13 of the Plan.
(c) Action by Committee. The Committee shall have the authority, in its sole and absolute discretion, to remove any or all of the restrictions applicable to such Shares of Restricted Stock whenever the Committee may determine that such action is appropriate by reason of changes to applicable tax or other laws.
5. Fractional Shares. No fractional shares shall be delivered to Grantee. Any fractional shares shall be rounded down to the nearest whole number, provided that such fractional shares shall be aggregated and vested on the date when all restrictions lapse or expire.
6. Legends.
(a) If Restricted Stock is held in certificated form, certificates representing Shares of Restricted Stock issued pursuant to the Award Agreement shall bear the following legend:
The Shares of Stock represented by this certificate have been acquired for investment and not with a view to, or in connection with, the sale or distribution thereof. No such sale or disposition may be effected without an effective registration statement related thereto or an opinion of counsel satisfactory to Heritage Oaks Bancorp that such registration is not required under the Securities Act of 1933.
(b) If Restricted Stock is held in certificated form, until all restrictions lapse, certificates representing Shares of Restricted Stock issued pursuant to the Award Agreement shall bear the following legend:
The sale or other transfer of the Shares of Stock represented by this certificate, whether voluntary, involuntary, or by operation of law, is subject to certain restrictions on transfer as set forth in the Heritage Oaks Bancorp 2015 Equity Incentive Plan, and in the associated Restricted Stock Award Agreement. A copy of the Plan and such Restricted Stock Award Agreement may be obtained from Heritage Oaks Bancorp
(c) The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.
7. Escrow.
(a) Until all restrictions have lapsed, the Secretary or such other escrow holder as the Committee may appoint, shall retain custody of the stock certificates or book-entry shares representing the Restricted Stock subject to the Award; provided, however, that in no event shall Grantee retain physical custody of any certificates representing Shares of Restricted Stock awarded to him or her.
(b) Grantee further agrees that simultaneously with his or her execution of the Award Agreement, he or she shall execute stock powers in favor of the Company with respect to the Shares of Restricted Stock granted hereunder in the form attached hereto and that he or she shall promptly deliver such stock powers to the Company.
8. Rights as a Shareholder. Upon the delivery of Restricted Stock to the escrow holder pursuant to subsection 7(a), Grantee shall have all the rights of a shareholder of the Company with respect to the Restricted Stock, subject to the terms and conditions of this Award Agreement, including the right to vote the Restricted Stock and the right to receive all dividends or other distributions paid or made with respect to the Restricted Stock; provided, however, that any additional Shares of Restricted Stock to which Grantee shall be entitled as a result of stock dividends, stock splits, or any other form of recapitalization in respect of Shares of Restricted Stock shall also be subject to the terms and conditions of this Award Agreement until the
restrictions on the underlying Shares of Restricted Stock lapse or expire. Grantee acknowledges that any dividends paid to Grantee with respect to any Share of the Restricted Stock prior to the lapse of any restrictions with respect to such Share shall be compensation income rather than dividend income unless Grantee has made an election under Section 83(b) of the Code with respect to such Share.
9. Removal of Legends on Certificates and Return of Stock Powers. When restrictions lapse and the Company delivers to Grantee the certificates in respect of shares of Stock or book-entry shares, Grantee shall also receive back the related stock powers held by the Company pursuant to subsection 7(b) above. The distributed shares of Stock shall be free of the restrictions and such certificate, if any, shall not bear the legend provided for in Section 6(b) above (but shall continue to bear the legend provided in Section 6(a) above, if applicable).
10. Code Section 83(b) Election. Grantee acknowledges that he or she has been informed and is aware of the following income tax consequences resulting from the receipt and vesting of the Shares of Restricted Stock:
(a) With respect to the Shares that are vested on the Grant Date, Grantee will be taxed currently on their Fair Market Value on the Grant Date.
(b) With respect to the Shares that are not vested on the Grant Date, Grantee will be taxed on the Fair Market Value of such Shares as and when the restrictions lapse in accordance with the provisions of the Award Agreement (such fair market value determined on such vesting dates), unless Grantee files an election pursuant to Section 83(b) of the Code (and any similar state tax provisions if applicable). If such an election is made, Grantee will be taxed currently on the full fair market value of the unvested Shares on the Grant Date. Any such election must be filed by Grantee with the Internal Revenue Service and, if necessary, the proper state taxing authorities, within 30 days of the receipt of the Shares. A form of Election under Section 83(b) is attached hereto. GRANTEE ACKNOWLEDGES THAT IT IS HIS OR HER SOLE RESPONSIBILITY AND NOT THE COMPANYS (i) TO DETERMINE WHETHER OR NOT TO MAKE ANY ELECTION UNDER SECTION 83(b) OF THE CODE, AND (ii) IF GRANTEE DETERMINES TO MAKE ANY SUCH ELECTION, TO TIMELY FILE SUCH ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF GRANTEE ASKS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON HIS OR HER BEHALF.
(c) Grantee shall notify the Company immediately in writing in the event Grantee makes an election under Section 83(b) of the Code (or any successor provision) or corresponding provisions of state or local tax laws with respect to the Restricted Stock.
11. Separate Advice and Representation. The Company is not providing Grantee with advice, warranties, or representations regarding any of the legal, tax, or business effects to Grantee with respect to the Plan or this Award Agreement. Grantee is encouraged to seek legal, tax, and business advice from Grantees own legal, tax, and business advisers as soon as possible. By accepting this Award and the shares of Stock covered thereby, and by signing this Award Agreement, Grantee acknowledges that Grantee is familiar with the terms of the Award Agreement and the Plan, that Grantee has been encouraged by the Company to discuss the
Award and the Plan with Grantees own legal, tax, and business advisers, and that Grantee agrees to be bound by the terms of the Plan and the Award Agreement.
12. Tax Withholding.
(a) The Company will assess its requirements regarding federal, state, and local income taxes, FICA taxes, and any other applicable taxes (Tax Items) in connection with the Restricted Stock. These requirements may change from time to time as laws or interpretations change. The Company will withhold Tax Items as required by law. Regardless of the Companys actions in this regard, Grantee acknowledges and agrees that the ultimate liability for Tax Items is Grantees responsibility. Grantee acknowledges and agrees that the Company:
(i) makes no representations or undertakings regarding the treatment of any Tax Items in connection with any aspect of the Restricted Stock, including the subsequent sale of Shares acquired under the Plan; and
(ii) does not commit to structure the terms of the Restricted Stock or any aspect of the Restricted Stock to reduce or eliminate liability for Tax Items.
(b) Notwithstanding any contrary provision of this Award Agreement, no certificate representing the Shares of Restricted Stock or book-entry Shares will be issued to Grantee, unless and until satisfactory arrangements (as determined by the Committee) have been made by Grantee with respect to the payment of income, employment, and other taxes which the Company determines must be withheld with respect to such Shares so issuable. The Committee, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Grantee to satisfy such tax withholding obligation, in whole or in part (without limitation) by one or more of the following: (i) paying cash, (ii) delivering to the Company already vested and owned Shares having an aggregate Fair Market Value (as of the date the withholding is effected) equal to the amount required to be withheld, or (ii) by authorizing the Company to hold back a number of Shares otherwise deliverable to Grantee through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) having an aggregate Fair Market Value (as of the date the withholding is effected) equal to the amount required to be withheld.
13. No Acquired Rights. Grantee agrees and acknowledges that:
(a) the grant of this Award under the Plan is voluntary and occasional and does not create any contractual or other right to receive future grants of any Awards or benefits in lieu of any Awards, even if Awards have been granted repeatedly in the past and regardless of any reasonable notice period mandated under local law;
(b) the value of this Award is an extraordinary item of compensation which is outside the scope of an employment contract, if any;
(c) this Award is not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating termination, severance, resignation,
redundancy, end of service payments, bonuses, long-service awards, pension, retirement benefits, or similar payments;
(d) the future value of the Shares awarded under the Plan, if any, is unknown and cannot be predicted with certainty;
(e) no claim or entitlement to compensation or damages arises from the termination of this Award or diminution in value of this Award or Shares received under the Plan, and Grantee irrevocably releases the Company from any such claim; and
(f) participation in the Plan shall not create a right to further employment with the Company or employer and shall not interfere with the ability of the Company or employer to terminate the employment relationship at any time, with or without cause.
14. Adjustment of Shares. In the event of a subdivision of the outstanding Stock, a declaration of a dividend payable in Shares, a declaration of a dividend payable in a form other than Shares in an amount that has a material effect on the value of Shares, a combination or consolidation of the outstanding Shares (by reclassification or otherwise) into a lesser number of Shares, a recapitalization, a spin-off, a merger, consolidation or other reorganization involving the Company that would not constitute a Change in Control, or any other similar occurrence, the Company shall make appropriate adjustments in the number of Shares of Restricted Stock covered by the Award.
Except as provided in this Section 14, Grantee shall have no rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend or any other increase or decrease in the number of shares of stock of any class. Any issue by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares of Restricted Stock subject to the Award. The grant of the Restricted Stock pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets.
15. Notices. Except as may be otherwise provided by the Plan, any written notices provided for in the Plan and this Award Agreement shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailed but in no event later than the date of actual receipt. Notice may also be provided by electronic submission, if and to the extent permitted by the Committee. Notices shall be directed, if to Grantee, at Grantees address indicated by the Companys records, or if to the Company, at the Companys principal office, attention Human Resources Department.
16. Severability. The provisions of the Award Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
17. Counterparts; Further Instruments. The Award Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties hereto agree to execute such further instruments and to take such further action as may be reasonably necessary to carry out the purposes and intent of this Award Agreement.
18. Amendment. The Award Agreement may be amended or modified by the Committee, including amendments and modifications that may affect the tax status of the Award, provided that such action may not, without the consent of Grantee, impair any rights of Grantee under the Award Agreement.
19. Entire Agreement; Governing Law. The Plan and this Award Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Grantee with respect to the subject matter hereof, and may not be modified adversely to Grantees interest except by means of a writing signed by the Company and Grantee. This agreement is governed by the internal substantive laws, but not the choice of law rules, of California.
CONSENT OF SPOUSE
The undersigned spouse of Grantee agrees that his/her interest, if any, including any community property interest, in the Shares subject to the foregoing Agreement between Grantee and the Company shall be irrevocably bound by such Agreement. The undersigned further agrees that Grantees decisions or execution of any documents with respect to the Shares covered by such Agreement shall be the decision, signature or deed of the undersigned and irrevocably bind the undersigned as if the undersigned had made such decisions, executed such documents or performed such acts done by the undersigneds spouse.
|
Spouse of Grantee (if any): | |
|
| |
|
| |
|
| |
|
(signature) | |
|
| |
|
| |
|
Name: |
|
|
| |
|
| |
|
Date: |
|
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto Heritage Oaks Bancorp, a California corporation (the Company) ( ) shares of the Companys common stock, no par value, standing in the undersigneds name on the books of said corporation represented by Certificate No. delivered herewith, and does hereby irrevocably constitute and appoint the Corporate Secretary of the Company, as attorney-in-fact, to transfer the said shares of stock on the books of the said corporation with full power of substitution in the premises.
|
Dated: |
|
|
|
|
|
|
[name] |
SECTION 83(b) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue Code, pursuant to Treas. Reg. Section 1.83-2.
(1) Name:
Address:
Social Security No.:
(2) The property with respect to which the election is being made is shares of the common stock of Heritage Oaks Bancorp, a California corporation (Shares).
(3) The date on which the Shares were acquired is , 20 .
(4) The taxable year in which the election is being made is the calendar year 20 .
(5) The property is subject to surrender and cancellation if for any reason the taxpayer ceases to be an employee the issuer prior to specified vesting dates. This restriction lapses in accordance with the terms of an agreement between the company and taxpayer.
(6) The fair market value at the time of transfer (determined without regard to any restriction other than a restriction which by its terms will never lapse) is $ per share.
(7) The amount paid for such property is $0 per share.
(8) A copy of this statement was furnished to Heritage Oaks Bancorp, for whom taxpayer rendered the services underlying the transfer of property.
(9) This statement is executed as of , 20 .
|
Signature: |
|
|
|
|
|
Taxpayer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Taxpayers Spouse, if any |
|
|
NOTE: To make the election, this form must be filed with the Internal Revenue Service Center with which taxpayer files his/her Federal income tax returns. The filing must be made within thirty (30) days after the Grant Date of the Restricted Stock Award Agreement.
Exhibit 5.1
March 10, 2016
Board of Directors
Heritage Oaks Bancorp
1222 Vine Street
Paso Robles, California 93446
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) being filed by Heritage Oaks Bancorp (the Company) with the U.S. Securities & Exchange Commission under the Securities Act of 1933, as amended (the Act), relating to the registration of 2,500,000 shares of the Companys common stock, no par value per share (the Shares), to be offered pursuant to the Heritage Oaks Bancorp 2015 Equity Incentive Plan (the Plan).
In rendering this opinion, we have examined and reviewed only such documents, records and matters of law as we have deemed relevant for the purpose of rendering the opinion set forth herein. Insofar as the opinion set forth herein is based on factual matters in connection with, among other things, the issuance of the Shares, which factual matters are authenticated in certificates from certain officers of the Company, we have relied on such certificates. 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. In addition, we have assumed that (i) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective under the Act; and (ii) all Shares will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable prospectus and/or prospectus supplement.
Based upon the foregoing, and subject to the assumptions. Limitations and exceptions set forth herein, we are of the opinion that as of the date hereof:
1. The Shares have been duly authorized.
2. The Shares will be, when and if issued and delivered as contemplated by, and in conformity with the terms and conditions of the Plan, validly issued, fully paid and non-assessable.
We express no opinion as to the applicability or effect of any laws, orders or judgments of any state or other jurisdiction other than federal securities laws and the California General Corporation Law. Further, this opinion is based solely upon existing laws, rules and regulations, and we undertake no obligation to advise you of any changes that may be brought to our attention after the date hereof. This opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Registration Statement or the Shares.
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 other documents, nor is it to be filed with or furnished to any government agency or other person, without the prior written consent of this firm in each instance.
We hereby consent to the inclusion of this opinion as Exhibit 5 to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the U.S. Securities and Exchange Commission thereunder.
|
Very truly yours, |
|
|
|
/s/ Manatt, Phelps & Phillips, LLP |
|
Manatt, Phelps & Phillips, LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of Heritage Oaks Bancorp on Form S-8 of our report dated March 4, 2016 relating to the consolidated financial statements and effectiveness of internal control over financial reporting appearing in the Annual Report on Form 10-K of Heritage Oaks Bancorp for the year ended December 31, 2015.
|
/s/ Crowe Horwath LLP |
|
Crowe Horwath LLP |
|
|
Sacramento, California |
|
March 10, 2016 |
|