Registration No. 333- As Filed with the Securities and Exchange Commission on June 8, 2006 |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under the Securities Act of 1933
NORTH BAY BANCORP
(Exact Name of Registrant as Specified in its Charter)
CALIFORNIA
68-0434802
(State or Other Jurisdiction
(I.R.S. Employer
of Incorporation or Organization)
Identification No.)
1190 AIRPORT ROAD, SUITE 101, NAPA, CALIFORNIA 94558
(Address of Principal Executive Offices)
NORTH BAY BANCORP AMENDED AND RESTATED 2002 INCENTIVE COMPENSATION PLAN (Formerly North Bay Bancorp 2002 Stock Option Plan)
(Full Title of the Plan)
TERRY L. ROBINSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER
1190 Airport Road, Suite 101, Napa, California 94558
(Name and Address of Agent for Service)
(707) 257-8585
(Telephone Number, including Area Code, of Agent for Service)
Copy to:
Brent Faye, Esq.
Nixon Peabody LLP
Two Embarcadero Center, Suite 2700, San Francisco, California 94111
(415) 984-8200
CALCULATION OF REGISTRATION FEE
Title of Each Class Of Securities To Be Registered | Amount To Be Registered(a) | Proposed Maximum Offering Price Per Share(b) | Proposed Maximum Aggregate Offering Price(b) | Amount of Registration Fee | |
Common stock | 92,664 Shares | $28.67 | $2,656,676.88 | $ 321.00 | |
(a) This Registration Statement relates to 92,664 new shares of the common stock of the Registrant issuable under the Plan in addition to 747,336 shares (as adjusted for exercises, stock dividends and stock splits)being carried forward from Registration Statement No. 333-43972 (b) Estimated pursuant to Rule 457(h) solely for the purpose of computing the registration fee, utilizing $28.67 as the average of the high and low price of North Bay Bancorp's Common Stock as reported the NASDAQ Stock Market National Market System as of June 5, 2006. | |||||
THE CONTENTS OF REGISTRATION STATEMENT NO. 333-43972 ARE INCORPORATED HEREIN BY REFERENCE. |
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
5.1
Opinion re: Legality
10.1
North Bay Bancorp Amended and Restated 2002 Incentive Compensation Plan
10.2
Restricted Stock Award Agreement Pursuant to North Bay Bancorp Amended and Restated 2002 Incentive Compensation Plan
23.1
Consent of Counsel is included with the opinion re legality as Exhibit 5.1 to the Registration
Statement.
23.2
Consent of KPMG LLP as independent registered public accountants for North Bay Bancorp.
24
Power of attorney
2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Napa, State of California, on May 18, 2006.
NORTH BAY BANCORP
/s/ Terry L. Robinson
Terry L. Robinson, President & Chief Executive Officer
Signature
Title
Date
/s/ Thomas N. Gavin
Director
May 18, 2006
Thomas N. Gavin
Director
and
May __, 2006
David B. Gaw
Chairman of the Board
Director
May __, 2006
Fred J. Hearn Jr.
/s/ Conrad W. Hewitt
Director
May 18, 2006
Conrad W. Hewitt
/s/ Richard S. Long
Director
May 18, 2006
Richard S. Long
/s/ Thomas F. Malloy
Director
May 19, 2006
Thomas F. Malloy
/s/ Terry L. Robinson
President, Chief
May 18, 2006
Terry L. Robinson
Executive Officer and Director
(Principal Executive Officer)
Director
May __, 2006
Thomas H. Shelton
Director
May __, 2006
Stephen C. Spencer
/s/ Denise Suihkonen
Director
May 18, 2006
Denise Suihkonen
/s/ James T. Tidgewell
Director
May 18, 2006
James E. Tidgewell
/s/ Patrick Phelan
Exec. Vice President and
May 22, 2006
Patrick Phelan
Chief Financial Officer
(Principal Financial Officer)
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EXHIBIT INDEX
Exhibit
Number
Description
5.1
Opinion re: Legality
10.1
North Bay Bancorp Amended and Restated 2002 Incentive Compensation Plan
10.2
Restricted Stock Award Agreement Pursuant to North Bay Bancorp Amended and
Restated 2002 Incentive Compensation Plan
23.1
Consent of Counsel is included with the opinion re legality as Exhibit 5.1 to the
Registration Statement.
23.2
Consent of KPMG LLP as independent registered public accountants for North Bay Bancorp.
24
Power of attorney
4
EXHIBIT 5.1
OPINION RE: LEGALITY
5
NIXON PEABODY LLP
Two Embarcadero Center
Suite 2700
San Francisco, CA 94111-3996
(415) 984-8200
Fax: (415) 984-8300
R. Brent Faye
June 6, 2006
North Bay Bancorp
1190 Airport Road, Suite 101,
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 filed by North Bay Bancorp (“North Bay”) with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended, of 92,664 shares of North Bay Common Stock no par value, (the “Shares”) to be issued in connection with the grant and exercise of equity awards under the North Bay Bancorp 2002 Amended and Restated Incentive Compensation Plan (the “Plan”):
We are of the opinion that the Shares have been duly authorized and, when issued in accordance with the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement, and any amendments thereto, and the use of our name under the caption “Legal Matters” in the Registration Statement, and any amendments thereto, and in the Prospectus included therein.
Very truly yours,
\S\NIXON PEABODY LLP
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EXHIBIT 10.1
NORTH BAY BANCORP
2002 INCENTIVE COMPENSATION PLAN
Amended and Restated Effective March 27, 2006
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TABLE OF CONTENTS
Page
Article 1. Restatement, Objectives, and Duration
1
Article 2. Definitions
1
Article 3. Administration
5
Article 4. Shares Subject to the Plan and Maximum Awards
5
Article 5. Eligibility and Participation
7
Article 6. Stock Options
7
Article 7. Stock Appreciation Rights
9
Article 8. Restricted Stock
10
Article 9. Performance Units and Performance Shares
11
Article 10. Performance Measures
12
Article 11. Rights of Participants
13
Article 12. Termination of Employee
13
Article 13. Terminating Events
14
Article 14. Amendment, Modification, and Termination
14
Article 15. Withholding
15
Article 16. Successors
15
Article 17. General Provisions
15
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Article 1. Restatement, Objectives, and Duration
1.1 The Plan. North Bay Bancorp (the "Company"), a California corporation, adopted the "North Bay Bancorp 2002 Stock Option Plan" (the "Plan"), and its original effective date was February 25, 2002. The Plan, upon its establishment, provided both for the grant of Incentive Stock Options, intended to qualify under Section 422 of the Code, as well as Nonqualified Stock Options.
Subject to approval by the Company's shareholders, the Plan is renamed the "North Bay Bancorp 2002 Incentive Compensation Plan" and amended and restated effective March 27, 2006 (the "Effective Date") to permit the grant of Stock Appreciation Rights, Restricted Stock, Performance Shares and Performance Units in addition to grants of Incentive Stock Options and Nonqualified Stock Options. Awards of Stock Appreciation Rights, Restricted Stock, Performance Shares and Performance Units may be granted under this Plan prior to the Effective Date, provided that the effectiveness of such Awards shall be contingent upon shareholder approval of the Plan, as amended and restated, being obtained.
1.2 Objectives of the Plan. The objectives of the Plan are to optimize the profitability and growth of the Company through incentives that are consistent with the Company's goals and that link the personal interests of Participants to those of the Company's shareholders, to provide Participants with an incentive for excellence in individual performance, and to promote teamwork among Participants.
The Plan is further intended to provide flexibility to the Company and its Affiliates in their ability to motivate, attract, and retain the services of Participants who make significant contributions to the Company's success and to allow Participants to share in that success.
1.3 Duration of the Plan. The Plan shall remain in effect, subject to the right of the Committee to amend or terminate the Plan at any time pursuant to Article 14 hereof, until all Shares subject to it shall have been purchased or acquired according to the Plan's provisions. However, in no event may an Award of an Incentive Stock Option be granted under the Plan on or after the tenth (10th) anniversary of the original effective date (i.e., on or after February 24, 2012).
Article 2. Definitions
Whenever used in this Plan, the following terms shall have the meanings set forth below, and when the meaning is intended, the initial letter of the word shall be capitalized:
2.1 "Affiliate" means any corporation, partnership or limited liability company which controls, is controlled by, or is under common control with, the Company. A corporation, partnership or limited liability company that attains the status of an Affiliate on a date after the original effective date of the Plan shall be considered an Affiliate commencing as of that date.
2.2 "Award" means, individually or collectively, a grant under this Plan of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock, Performance Shares or Performance Units.
2.3 "Award Agreement" means a written or electronic agreement entered into by the Company and a Participant setting forth the terms and provisions applicable to an Award granted under this Plan.
2.4 "Beneficial Owner" or "Beneficial Ownership" shall have the meaning ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
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2.5 "Board" or "Board of Directors" means the Board of Directors of the Company, as constituted from time to time.
2.6 "Code" means the Internal Revenue Code of 1986, as amended.
2.7 "Committee" means the committee(s) appointed from time to time by the Company's Board of Directors to administer the Plan. The Committee shall consist of non-employee Directors who are independent directors as defined by Rule 4200(a)(15) of the rules of The Nasdaq Stock Market ("Independent Directors"). The full Board of Directors, in its discretion, may act as the Committee under the Plan, whether or not a Committee has been appointed, and shall do so with respect to grants of Awards to non-employee Directors. However Awards to executive officers of the Company must be approved by either the Committee or a majority of Independent Directors. Except with respect to Awards to executive officers or non-employee Directors, the Committee may delegate to one or more members of the Committee or officers of the Company, individually or acting as a committee, any portion of its authority, except as otherwise expressly provided in the Plan. In the event of a delegation to a member of the Committee, officer or a committee thereof, the term "Committee" as used herein shall include the member of the Committee, officer or committee with respect to the delegated authority. Notwithstanding any such delegation of authority, the Committee comprised of members of the Board of Directors and appointed by the Board of Directors shall retain overall responsibility for the operation of the Plan.
2.8 "Company" means North Bay Bancorp, a California corporation, and any successor thereto as provided in Article 16 hereof.
2.9 "Covered Employee" means a Participant who, as of the date of vesting and/or payout of an Award, or the date upon which the Company or any of its Affiliates is entitled to a tax deduction as a result of the Award, as applicable, is one of the group of "covered employees," as defined in the regulations promulgated under Code Section 162(m) or any successor statute.
2.10 "Director" means any individual who is a member of the Board of Directors of the Company or an Affiliate; provided, however, that any Director who is employed by the Company shall be treated as an Employee under the Plan.
2.11 "Disability" shall have the same meaning as "permanent and total disability" under Section 22(e)(3) of the Code.
2.12 "Effective Date" shall have the meaning ascribed to such term in Section 1.1 hereof.
2.13 "Employee" means:
i. any individual who is a full- or part-time salaried or hourly employee (i.e., paid in accordance with normal payroll procedures) of the Company or of an Affiliate (a "Payroll Employee");
ii. an officer of the Company who is not a full- or part-time salaried employee of the Company or of an Affiliate;
iii. a Director; and
iv. an independent contractor who performs services for the Company or an Affiliate and who is not a Director.
Services as an independent contractor, non-employee officer, or member of the Board of Directors shall be considered employment for all purposes of the Plan, except as provided in Section 5.1.
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2.14 "Exchange Act" means the Securities Exchange Act of 1934, as amended from time to time, or any successor act thereto.
2.15 "Fair Market Value" shall mean the market price of a Share, determined by the Committee as follows:
i. If Shares were traded over-the-counter on the date in question but were not traded on the NASDAQ system or the NASDAQ National Market System, then the Fair Market Value shall be equal to the mean between the last reported representative bid and asked prices quoted for such date by the principal automated inter-dealer quotation system on which Shares are quoted or, if Shares are not quoted on any such system, by the "Pink Sheets" published by the National Quotation Bureau, Inc.;
ii. If Shares were traded over-the-counter on the date in question and were traded on the NASDAQ system or the NASDAQ National Market System, then the Fair Market Value shall be equal to the last transaction price quoted for such date by the NASDAQ system or the NASDAQ National Market System;
iii. If 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
iv. 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. In all cases, the determination of Fair Market Value by the Committee shall be conclusive and binding on all persons.
2.16 "Incentive Stock Option" or "ISO" means an option to purchase Shares granted under Article 6 hereof and that is designated as an Incentive Stock Option and that is intended to meet the requirements of Code Section 422.
2.17 "Insider" shall mean an individual who is, on the relevant date, an executive officer, director or ten percent (10%) beneficial owner of any class of the Company's equity securities that is registered pursuant to Section 12 of the Exchange Act, all as defined under Section 16 of the Exchange Act.
2.18 "Key Employee" shall mean an individual as defined in Code Section 416(i) (but without regard to paragraph (5) thereof) of the Company.
2.19 "Nonqualified Stock Option" or "NQSO" means an option to purchase Shares granted under Article 6 hereof that is not intended to meet the requirements of Code Section 422, or that otherwise does not meet such requirements.
2.20 "Option" means an Incentive Stock Option or a Nonqualified Stock Option.
2.21 "Option Price" means the price at which a Share may be purchased by a Participant pursuant to an Option.
2.22 "Participant" means an Employee who has been selected to receive an Award or who has an outstanding Award granted under the Plan.
2.23 "Performance-Based Exception" means the performance-based exception from the tax deductibility limitations of Code Section 162(m).
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2.24 "Performance Share" means an Award granted to a Participant, as described in Article 9 hereof.
2.25 "Performance Unit" means an Award granted to a Participant, as described in Article 9 hereof.
2.26 "Period of Restriction" means the period during which the transfer of Shares of Restricted Stock is limited in some way (based on the passage of time, the achievement of performance goals, or upon the occurrence of other events as determined by the Committee, at its discretion), and the Shares are subject to a substantial risk of forfeiture, pursuant to the Restricted Stock Award Agreement, as provided in Article 8 hereof.
2.27 "Person" shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof and the rules promulgated thereunder, including a "group" as defined in Section 13(d) thereof and the rules promulgated thereunder.
2.28 "Restricted Stock" means an Award granted to a Participant pursuant to Article 8 hereof.
2.29 "Shares" means shares of the Company's common stock.
2.30 "Stock Appreciation Right" or "SAR" means an Award, granted alone or in connection with a related Option, designated as an SAR, pursuant to the terms of Article 7 hereof.
2.31 "Ten Percent Shareholder" means an Employee who at the time an ISO is granted owns Shares possessing more than ten percent of the total combined voting power of all classes of outstanding Shares of the Company or stock of any Affiliate, within the meaning of Code Section 422. For these purposes, an Employee shall be deemed to own the Shares and stock owned, directly or indirectly, by or for such Employee's brothers, sisters, spouse, ancestors and lineal descendants. Shares and stock owned, directly or indirectly, by or for a corporation, partnership, estate or trust shall be deemed to be owned proportionately by or for its shareholders, partners or beneficiaries. S hares or stock with respect to which such Employee holds an Option shall not be counted.
2.32 "Terminating Event" shall mean the occurrence of any of the following events:
i. the consummation of a plan of dissolution or liquidation of the Company;
ii. the consummation of a plan of reorganization, merger or consolidation involving the Company, except for a reorganization, merger or consolidation where (A) the shareholders of the Company immediately prior to such reorganization, merger or consolidation own directly or indirectly at least 50% of the combined voting power of the outstanding voting securities of the corporation resulting from such reorganization, merger or consolidation (the Surviving Corporation") in substantially the same proportion as their ownership of voting securities of the Company immediately prior to such reorganization, merger or consolidation and the individuals who were members of the Board of ;Directors immediately prior to the execution of the agreement providing for such reorganization, merger or consolidation constitute at least 50% of the members of the board of directors of the Surviving Corporation, or a corporation beneficially directly or indirectly owning a majority of the voting securities of the Surviving Corporation, or (B) the Company is reorganized, merged or consolidated with a corporation in which any shareholder owning at least 50% of the combined voting power of the outstanding voting securities of the Company immediately prior to such reorganization, merger or consolidation, owns at least 50% of the combined voting power of the outstanding voting securities of the corporation resulting from such reorganization, merger or consolidation.
iii. the sale of all or substantially all of the assets of the Company to another Person;
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iv. the acquisition of beneficial ownership of stock representing more than fifty percent (50%) of the voting power of the Company then outstanding by another Person.
2.33 "Vesting Event" shall mean the approval by the shareholders of the Company of any matter, plan or transaction which would constitute a Terminating Event, or if any Terminating Event occurs without shareholder approval, the occurrence of such Terminating Event.
Article 3. Administration
3.1 General. Subject to the terms and conditions of the Plan, the Plan shall be administered by the Committee. The members of the Committee shall be appointed from time to time and shall serve as the discretion of the Board of Directors. Except as otherwise provided in the Plan, the Committee shall have the authority to delegate administrative duties to officers of the Company. For purposes of making Awards to Insiders, the Committee shall be comprised solely of two or more members of the Board of Directors who qualify as "independent directors" under Rule 4200(a)(15) of the rules of The Nasdaq Stock Market. For purposes of making Awards to Employees who are Covered Employees but not Insiders, the C ommittee shall be comprised solely of two or more members of the Board of Directors who qualify as "outside directors" under Section 162(m)(4)(C) of the Code. If the Committee members meet both such qualifications, then one Committee may administer the Plan both with respect to Employees who are Insiders and Employees who are Covered Employees. That Committee may administer the Plan with respect to Employees who are neither Insiders nor Covered Employees.
3.2 Authority of the Committee. Except as limited by law or by the articles of incorporation or bylaws of the Company, and subject to the provisions hereof, the Committee shall have full power to select those Employees who shall be offered the opportunity to participate in the Plan; determine the sizes and types of Awards; determine the terms and conditions of Awards in a manner consistent with the Plan; construe and interpret the Plan and any agreement or instrument entered into under the Plan; establish, amend, or waive rules and regulations for the Plan's administration; and amend the terms and conditions of any outstanding Award as provided in the Plan. Further, the Committee shall make all other determinations that it &nb sp;deems necessary or advisable for the administration of the Plan. The Committee shall annually deliver financial statements of the Company to all Participants to whom such delivery is required by Section 260.140.46 of the California Code of Regulations or successor statute or regulation. As permitted by law and the terms of the Plan, the Committee may delegate its authority hereunder. No member of the Committee shall be liable for any action taken or decision made in good faith relating to the Plan or any Award granted hereunder.
3.3 Decisions Binding. All determinations and decisions made by the Committee pursuant to the provisions of the Plan and all related orders and resolutions of the Committee shall be final, conclusive, and binding on all persons, including the Company, its shareholders, Directors, Employees, Participants, and their estates and beneficiaries, unless changed by the Board.
Article 4. Shares Subject to the Plan and Maximum Awards
4.1 Number of Shares Available for Grants. Subject to adjustment as provided in Section 4.2 hereof, the number of Shares hereby reserved for issuance to Participants under the Plan shall equal 840,000, and the maximum number of Shares that may be granted to any one Participant during a calendar year shall be 100,000. Any Shares covered by an Award (or portion of an Award) granted under the Plan which is forfeited or canceled or expires shall be deemed not to have been delivered for purposes of determining the maximum number of Shares available for delivery under the Plan. Shares reserved for issuance to Participants shall be authorized but unissued Shares. The Committee &nb sp;shall determine the appropriate methodology for calculating the number of Shares issued pursuant to the Plan.
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At no time shall the total number of Shares covered by Awards and the total number of Shares provided for under any stock bonus or similar plan of the Company exceed 30% of the then outstanding Shares of the Company's common stock, calculated in accordance with the conditions and exclusions of Rule 260.140.45 of the California Code of Regulations or any successor statute or regulation.
In the event that any outstanding Award granted under this Plan, including Substitute Awards, for any reason expires or is canceled or otherwise terminated, the Shares allocable to the unexercised portion of such Award shall become available for the purposes of this Plan. In addition, any authorized Shares not issued or subject to outstanding Awards under the Company's 1993 Stock Option Plan (the "Prior Plan") on the original effective date of this Plan and any Shares issued under the Prior Plan that are forfeited or repurchased by the Company or that are issuable upon exercise of options granted pursuant to the Prior Plan that expire or become unexercisable for any reason without having been exercised in full, will no longer be avail able for grant and issuance under the Prior Plan, but will be available for grant and issuance under this Plan.
4.2 Adjustments in Authorized Shares. Upon a change in corporate capitalization, such as a stock split, stock dividend or a corporate transaction, such as any merger, consolidation, combination, exchange of shares or the like, separation, including a spin-off, or other distribution of stock or property of the Company, any reorganization (whether or not such reorganization comes within the definition of such term in Code Section 368) or any partial or complete liquidation of the Company, such adjustment shall be made in the number and class of Shares that may be delivered under Section 4.1, in the number and class of and/or price of Shares subject to outstanding Awards granted under the Plan, and in the Award limits set f orth in Section 4.1, as may be determined to be appropriate and equitable by the Committee, in its sole discretion, to prevent dilution or enlargement of rights.
4.3 Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events. The Committee may make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events (including, without limitation, the events described in Section 4.2 hereof) affecting the Company or the financial statements of the Company or of changes in applicable laws, regulations, or accounting principles, whenever the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan; provided that, unless the Committee determines otherwise at the time such adjustment is considered, no such adjustment shall be authorized to the extent that such authority would be inconsistent with the Plan's or any Award's meeting the requirements of Section 162(m) of the Code, as from time to time amended.
4.4 Substitute Awards. If the Company at any time should succeed to the business of another corporation through merger or consolidation, or through the acquisition of stock or assets of such corporation, Awards may be granted under the Plan in substitution of awards previously granted by such corporation which awards are outstanding at the date of the succession ("Substitute Awards"). The Committee shall have discretion to determine the extent to which such Substitute Awards shall be granted, the persons to receive such Substitute Awards, the number of Shares to be subject to such Substitute Awards, and the terms and conditions of such Substitute Awards which shall, to the extent permissible within the terms and conditions of the Plan, &nbs p;be equivalent to the terms and conditions of the surrendered awards. The terms of such Substitute Awards may be determined by the Committee in its sole discretion, provided however, that the Option Price of any Option that is a Substitute Award shall be an amount such that, in the sole and absolute judgment of the Committee (and if the Substitute Awards are to be ISO's, in compliance with Section 424(a) of the Code), the economic benefit provided by such Substitute Award is not greater than the economic benefit represented by the surrendered award as of the date of the succession.
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Article 5. Eligibility and Participation
5.1 Eligibility. Only Employees shall be eligible to participate in this Plan. Only Payroll Employees of the Company or an Affiliate shall be eligible for the grant of ISOs.
5.2 Actual Participation. Subject to the provisions of the Plan, the Committee may, from time to time, select from all eligible Employees those to whom Awards shall be granted and shall determine the nature and amount of each Award, provided that ISOs shall be awarded only to Payroll Employees.
Article 6. Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the Plan, Options may be granted to Participants in such number, and upon such terms, and at any time and from time to time as shall be determined by the Committee.
6.2 Award Agreement. Each Option grant shall be evidenced by an Award Agreement that shall specify the Option Price, the duration of the Option, the number of Shares to which the Option pertains, and such other provisions as the Committee shall determine which are not inconsistent with the terms of the Plan.
6.3 Option Price. Each Award Agreement for Options shall specify the Option Price. The Option Price of an Option shall not be less than 100 percent of the Fair Market Value of a Share on the date of grant except as otherwise provided in this Section and under Section 4.4. If an ISO is granted to a Ten Percent Shareholder, the Option Price shall be at least 110 percent of the Fair Market Value of the stock subject to the ISO.
6.4 Duration of Options. Each Option granted to a Participant shall expire at such time as the Committee shall determine at the time of grant, provided that an ISO must expire no later than the tenth (10th) anniversary of the date upon which the ISO was granted. However, in the case of an ISO granted to a Ten Percent Shareholder, the ISO by its terms shall not be exercisable after the expiration of five years from the date such ISO is granted.
6.5 Exercise of Options. Options shall be exercisable at such times and be subject to such restrictions and conditions as the Committee shall in each instance approve, which need not be the same for each grant or for each Participant, provided, however, that:
i. Upon the occurrence of a Vesting Event, the Option shall become immediately exercisable as to all Shares covered by such Option, whether or not previously vested;
ii. In the event that a Participant's service as an Employee terminates, the Option shall be exercisable only to the extent the Option was vested as of the date of such termination, unless otherwise specified in the Participant's Award Agreement; and
iii. Options granted to Payroll Employees other than officers of the Company shall vest at the rate of at least 20 percent of the Shares subject thereto per year over five (5) years from the date of grant of the Option.
6.6 Payment. Options shall be exercised by the delivery of a written, electronic or telephonic notice of exercise to the Company or its designated agent, setting forth the number of Shares with respect to which the Option is to be exercised, accompanied by full payment of the Option Price for the Shares.
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Upon the exercise of any Option, the Option Price for the Shares being purchased pursuant to the Option shall be payable to the Company in full either: (a) in cash or its equivalent; or (b) subject to the Committee's approval, by delivery of previously acquired Shares having an aggregate Fair Market Value at the time of exercise equal to the total Option Price (provided that the Shares that are delivered must have been held by the Participant for at least six (6) months prior to their delivery to satisfy the Option Price); or (c) by a combination of (a) and (b); or (d) by any other method approved by the Committee in its sole discretion. Unless otherwise determined by the Committee, the delivery of previously acquired &n bsp;Shares may be done through attestation. No fractional shares may be tendered or accepted in payment of the Option Price.
Unless otherwise determined by the Committee, cashless exercises are permitted pursuant to Federal Reserve Board Regulation T, subject to applicable securities law restrictions, or by any other means which the Committee determines to be consistent with the Plan's purpose and applicable law.
Subject to any governing rules or regulations, as soon as practicable after receipt of notification of exercise and full payment, the Company shall deliver to the Participant, in the Participant's name, Share certificates in an appropriate amount based upon the number of Shares purchased pursuant to the Option(s).
Unless otherwise determined by the Committee, all payments under all of the methods indicated above shall be paid in United States dollars.
6.7 Restrictions on Share Transferability. The Committee may impose such restrictions on any Shares acquired pursuant to the exercise of an Option granted under this Article 6 as it may deem advisable, including, without limitation, restrictions under applicable federal securities laws, under the requirements of any stock exchange or market upon which such Shares are then listed and/or traded, or under any blue sky or state securities laws applicable to such Shares.
6.8 Nontransferability of Options. During a Participant's lifetime, the Participant's Options shall be exercisable only by him or her and shall not be transferable. An Option shall not be transferable other than by will or by the laws of descent and distribution, provided, however, that NQSOs may be transferred by instrument to an inter vivos or testamentary trust in which the Options are to be passed to beneficiaries upon the death of the trustor/settlor, or by gift to "immediate family", as that term is defined in 17 C.F.R. 240.16a-1(e) or successor statute or regulation thereto.
6.9 Special Limitation on Grants of Incentive Stock Options. No ISO shall be granted to an Employee under the Plan or any other ISO plan of the Company or its Affiliates to purchase Shares as to which the aggregate Fair Market Value (determined as of the date of grant) of the Shares which first become exercisable by the Employee in any calendar year exceeds $100,000. To the extent an Option initially designated as an ISO exceeds the value limit of this Section or otherwise fails to satisfy the requirements applicable to ISOs, it shall be deemed a NQSO and shall otherwise remain in full force and effect.
Article 7. Stock Appreciation Rights
7.1 Grant of SARs. Subject to the terms and conditions of the Plan, SARs may be granted to Participants at any time and from time to time as shall be determined by the Committee.
Subject to the terms and conditions of the Plan, the Committee shall have complete discretion in determining the number of SARs granted to each Participant and, consistent with the provisions of the Plan, in determining the terms and conditions pertaining to such SARs.
The grant price of a SAR shall equal the Fair Market Value of a Share on the date of grant.
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7.2 SAR Agreement. Each SAR grant shall be evidenced by an Award Agreement that shall specify the grant price, the term of the SAR, and such other provisions as the Committee shall determine.
7.3 Term of SARs. The term of an SAR granted under the Plan shall be determined by the Committee, in its sole discretion.
7.4 Exercise of SARs. SARs may be exercised upon whatever terms and conditions the Committee, in its sole discretion, imposes upon them.
7.6 Payment of SAR Amount. Upon exercise of an SAR, a Participant shall be entitled to receive payment from the Company in an amount determined by multiplying:
(a) The amount by which the Fair Market Value of a Share on the date of exercise exceeds the grant price of the SAR; by
(b) The number of Shares with respect to which the SAR is exercised. The payment upon SAR exercise shall be in Shares. Any Shares delivered in payment shall be deemed to have a value equal to the Fair Market Value on the date of exercise of the SAR.
7.7 Nontransferability of SARs. Except as otherwise provided in a Participant's Award Agreement, no SAR granted under the Plan may be sold, transferred, pledged, assigned, encumbered, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution. Further, except as otherwise provided in a Participant's Award Agreement, all SARs granted to a Participant under the Plan shall be exercisable during such Participant's lifetime only by such Participant.
Article 8. Restricted Stock
8.1 Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the Committee, at any time and from time to time, may grant Shares of Restricted Stock to Participants in such amounts as the Committee shall determine.
8.2 Restricted Stock Agreement. Each Restricted Stock grant shall be evidenced by a Restricted Stock Award Agreement that shall specify the Period(s) of Restriction, the number of Shares of Restricted Stock granted, and such other provisions as the Committee shall determine which are not inconsistent with the terms of this Plan.
8.3 Transferability. Except as provided in the Award Agreement, the Shares of Restricted Stock granted herein may not be sold, transferred, pledged, assigned, encumbered, or otherwise alienated or hypothecated until the end of the applicable Period of Restriction established by the Committee and specified in the Restricted Stock Award Agreement, or upon earlier satisfaction of any other conditions, as specified by the Committee in its sole discretion and set forth in the Restricted Stock Award Agreement. All rights with respect to the Restricted Stock granted to a Participant under the Plan shall be available during such Participant's lifetime and prior to the end of the Period of Restriction only to such Participant.
8.4 Other Restrictions. The Committee may impose such other conditions and/or restrictions on any Shares of Restricted Stock granted pursuant to the Plan as it may deem advisable including, without limitation, a requirement that Participants pay a stipulated purchase price for each Share of Restricted Stock, restrictions based upon the achievement of specific performance goals, time-based restrictions on vesting following the attainment of the performance goals, time-based restrictions, and/or restrictions under applicable federal or state securities laws.
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To the extent deemed appropriate by the Committee, the Company may retain the certificates representing Shares of Restricted Stock in the Company's possession until such time as all conditions and/or restrictions applicable to such Shares have been satisfied.
Except as otherwise provided in the Award Agreement, Shares of Restricted Stock covered by each Restricted Stock grant made under the Plan shall become freely transferable by the Participant after the last day of the applicable Period of Restriction.
8.5 Voting Rights. If the Committee so determines, Participants holding Shares of Restricted Stock granted hereunder may be granted the right to exercise full voting rights with respect to those Shares during the Period of Restriction.
8.6 Dividends and Other Distributions. During the Period of Restriction Participants holding Shares of Restricted Stock granted hereunder (whether or not the Company holds the certificate(s) representing such Shares) may, if the Committee so determines, be credited with dividends paid with respect to the underlying Shares while they are so held. The Committee may apply any restrictions to the dividends that the Committee deems appropriate. Without limiting the generality of the preceding sentence, if the grant or vesting of Restricted Shares granted to a Covered Employee is designed to comply with the requirements of the Performance-Based Exception, the Committee may apply any re strictions it deems appropriate to the payment of dividends declared with respect to such Restricted Shares, such that the dividends and/or the Restricted Shares maintain eligibility for the Performance-Based Exception.
Article 9. Performance Units and Performance Shares
9.1 Grant of Performance Units/Shares Awards. Subject to the terms of the Plan, Performance Units and/or Performance Shares Awards may be granted to Participants in such amounts and upon such terms, and at any time and from time to time, as shall be determined by the Committee.
9.2 Award Agreement. At the Committee's discretion, each grant of Performance Units/Shares Awards shall be evidenced by an Award Agreement that shall specify the initial value, the duration of the Award, the performance measures, if any, applicable to the Award, and such other provisions as the Committee shall determine which are not inconsistent with the terms of the Plan.
9.3 Value of Performance Units/Shares Awards. Each Performance Unit shall have an initial value that is established by the Committee at the time of grant. Each Performance Share shall have an initial value equal to the Fair Market Value of a Share on the date of grant. The Committee shall set performance goals in its discretion which, depending on the extent to which they are met, will determine the number and/or value of Performance Units/Shares Awards that will be paid out to the Participant. For purposes of this Article 9, the time period during which the performance goals must be met shall be called a "Performance Period."
9.4 Earning of Performance Units/Shares Awards. Subject to the terms of this Plan, after the applicable Performance Period has ended, the holder of Performance Units/Shares Awards shall be entitled to receive a payout based on the number and value of Performance Units/Shares Awards earned by the Participant over the Performance Period, to be determined as a function of the extent to which the corresponding performance goals have been achieved.
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9.5 Form and Timing of Payment of Performance Units/Shares Awards. Payment of earned Performance Units/Shares Awards shall be as determined by the Committee and, if applicable, as evidenced in the related Award Agreement. Subject to the terms of the Plan, the Committee, in its sole discretion, may pay earned Performance Units/Shares Awards in the form of cash or in Shares (or in a combination thereof) that have an aggregate Fair Market Value equal to the value of the earned Performance Units/Shares Awards at the close of the applicable Performance Period. Such Shares may be delivered subject to any restrictions deemed appropriate by the Committee. No fractional shares will be issued. The determination of the Committee with respect to the form of payout of such Awards shall be set forth in the Award Agreement pertaining to the grant of the Award or the resolutions establishing the Award.
Unless otherwise provided by the Committee, Participants holding Performance Units/Shares shall be entitled to receive dividend units with respect to dividends declared with respect to the Shares represented by such Performance Units/Shares. Such dividends may be subject to the same accrual, forfeiture, and payout restrictions as apply to dividends earned with respect to Shares of Restricted Stock, as set forth in Section 8.6 hereof, as determined by the Committee.
9.6 Nontransferability. Except as otherwise provided in a Participant's Award Agreement, Performance Units/Shares Awards may not be sold, transferred, pledged, assigned, encumbered, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution.
Article 10. Performance Measures
Company's shareholders approve a change in the general performance measures set forth in this Article 10, the attainment of which may determine the degree of payout and/or vesting with respect to Awards to Covered Employees that are designed to qualify for the Performance-Based Exception, the performance measure(s) to be used for purposes of such grants shall be chosen from among:
(a) Earnings per share (actual or diluted);
(b) Net income (before or after taxes);
(c) Return on average assets;
(d) Return on average equity;
(e) Revenues;
(f) Deposit and/or loan growth;
(g) Efficiency ratio
(h) Non-interest expense;
(i) Market share; and
(j) Any of the above measures compared to peer or other companies.
Performance measures may be set either at the Company level, Affiliate level, division level, or business unit level.
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Awards that are designed to qualify for the Performance-Based Exception, and that are held by Covered Employees, may not be adjusted upward, provided, however, that the Committee shall retain the discretion to adjust such Awards downward.
If applicable tax and/or securities laws change to permit Committee discretion to alter the governing performance measures without obtaining shareholder approval of such changes, the Committee shall have sole discretion to make such changes without obtaining shareholder approval.
Article 11. Rights of Participants
11.1 Employment. Nothing in the Plan shall confer upon any Participant any right to continue in the Company's or any Affiliate's employ, or as a Director, or interfere with or limit in any way the right of the Company or its Affiliates to terminate any Participant's employment, engagement or directorship at any time.
11.2 Participation. No Employee shall have the right to be selected to receive an Award under this Plan, or, having been so selected, to be selected to receive a future Award.
11.3 Rights as a Shareholder. Except as provided in Sections 8.5, 8.6 and 9.5 or in an applicable Award Agreement consistent with such Sections, a Participant shall have none of the rights of a shareholder with respect to shares of common stock covered by any Award until the Participant becomes the record holder of such Shares, or the Period of Restriction has expired, as applicable.
Article 12. Termination of Employee
In the event the Participant's service as an Employee terminates:
i. As a result of such Participant's death or Disability, the term of the Award shall expire twelve months (or such other period specified in the Participant's Award Agreement) after such death or Disability but not later than the original expiration date specified in the Award Agreement.
ii. As a result of termination of the Employee's employment with the Company (by resignation or otherwise) for cause, the term of the Award shall expire immediately upon such termination (notice or advice of which shall subsequently be given by the Company), and thereafter neither the Employee nor the Employee's estate shall be entitled to exercise the Award with respect to any Shares whatsoever, whether or not after such termination the Employee may receive payment from the Company for vacation pay, for services rendered prior to termination, for services for the day on which termination occurred, for salary in lieu of notice or for other benefits. For purposes of this Plan, "cause" shall mean an act of embezzlement, fra ud, dishonesty or breach of fiduciary duty to the Company or its shareholders, disclosure of any of the secrets or confidential information of the Company, the inducement of any client or customer of the Company to break any contract with the Company, or the inducement of any principal for whom the Company acts as agent to terminate such agency relationship, the engagement in any conduct which constitutes unfair competition with the Company, the removal of the Participant from office by any court or bank regulatory agency, or such other similar acts which the Committee in its discretion reasonably determines to constitute adequate cause for termination of the Participant from service as an Employee. As used in this Paragraph, Company includes Affiliates of the Company.
iii. As a result of termination for any reason other than Disability, death or cause, the term of the Award shall expire three months (or such other period specified in the Participant's Award Agreement) after such termination, but not later than the original expiration date specified in the Award Agreement.
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Unless otherwise determined by the Committee, an authorized leave of absence pursuant to a written agreement or other leave entitling an Employee to reemployment in a comparable position by law or rule shall not constitute a termination of employment for purposes of the Plan unless the Employee does not return at or before the end of the authorized leave or within the period for which re-employment is guaranteed by law or rule. For purposes of this Article, a "termination" includes an event which causes a Participant to lose his eligibility to participate in the Plan (e.g., an individual is employed by a company that ceases to be a Affiliate). In the case of a consultant, the meaning of "termin ation" or "termination of employment" includes the date that the individual ceases to provide services to the Company or its Affiliates. In the case of a non-employee Director, the meaning of "termination" includes the date that the individual ceases to be a Director of the Company or its Affiliates.
Notwithstanding the foregoing, the Committee has the authority to prescribe different rules that apply upon the termination of employment of a particular Participant, which shall be memorialized in the Participant's original or amended Award Agreement or similar document.
An Award that remains unexercised after the latest date it could have been exercised under any of the foregoing provisions or under the terms of the Award shall be forfeited.
Article 13. Terminating Events
Not less than thirty (30) days prior to the occurrence of a Terminating Event, the Committee or the Board shall notify each Participant of the pendency of the Terminating Event. Upon the effective date of the Terminating Event, the Plan shall automatically terminate and all Awards theretofore granted shall terminate, unless provision is made in connection with such transaction for the continuance of the Plan and/or assumption of Awards theretofore granted, or substitution for such Awards with new Awards covering stock of a successor corporation, or a parent or subsidiary corporation thereof, solely at the discretion of such successor corporation or parent or subsidiary corporation, with appropriat e adjustments as to number and kind of shares and prices, in which event the Plan and Awards theretofore granted shall continue in the manner and under the terms so provided. If the Plan and unexercised Awards shall terminate pursuant to the preceding sentence, all persons shall have the right to exercise the Awards then outstanding and not exercised, whether vested or not, at such time prior to the consummation of the transaction causing such termination as the Company shall designate, unless the Board shall have provided for the cancellation of such Awards in exchange for a cash payment equal to the excess of the Fair Market Value of the Shares as of the date of the Terminating Event over the exercise price of such Awards.
Article 14. Amendment, Modification, and Termination
14.1 Amendment, Modification, and Termination. Subject to the terms of the Plan, the Board may at any time and from time to time, alter, amend, suspend, or terminate the Plan in whole or in part.
14.2 Awards Previously Granted. Notwithstanding any other provision of the Plan to the contrary, no termination, amendment, or modification of the Plan shall adversely affect in any material way any Award previously granted under the Plan, without the written consent of the Participant holding such Award.
14.3 Shareholder Approval Required for Certain Amendments. Shareholder approval will be required for any amendment of the Plan that does any of the following: (a) increases the maximum number of Shares subject to the Plan; (b) changes the designation of the class of persons eligible to receive ISOs under the Plan; or (c) modifies the Plan in a manner that requires shareholder approval under applicable law or the rules of a stock exchange or trading system on which Shares are traded.
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Article 15. Withholding
The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy any applicable taxes (including social security or social charges), domestic or foreign, required by law or regulation to be withheld with respect to any taxable event arising as a result of this Plan. The Participant may satisfy, totally or in part, such Participant's obligations pursuant to this Section 15 by electing to have Shares withheld, to redeliver Shares acquired under an Award, or to deliver previously owned Shares that have been held for at least six (6) months, provided that the election is made in writing on or prior to (i) the date of exercise, in the case of Options and SARs, (ii) the date of payment, in the case of Performance Units/Shares, and (iii) the expiration of the Period of Restriction in the case of Restricted Stock. Any election made under this Section 15 may be disapproved by the Committee at any time in its sole discretion. If an election is disapproved by the Committee, the Participant must satisfy his obligations pursuant to this paragraph in cash.
Article 16. Successors
All obligations of the Company under the Plan with respect to Awards granted hereunder shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, through merger, consolidation, or otherwise, of all or substantially all of the business, stock and/or assets of the Company.
Article 17. General Provisions
17.1 Gender and Number. Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular and the singular shall include the plural.
17.2 Severability. If any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included.
17.3 Requirements of Law. The granting of Awards and the issuance of Shares under the Plan shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.
17.4 Securities Law Compliance. With respect to Insiders, transactions under this Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successors under the Exchange Act, unless determined otherwise by the Board. To the extent any provision of the Plan or action by the Committee fails to so comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Board.
17.5 Listing. The Company may use reasonable endeavors to register Shares issued pursuant to Awards with the United States Securities and Exchange Commission or to effect compliance with the registration, qualification, and listing requirements of any state or foreign securities laws, stock exchange, or trading system.
17.6 Inability to Obtain Authority. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.
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17.7 No Additional Rights. Neither the Award nor any benefits arising under this Plan shall constitute part of any contract between the Participant and the Company or any Affiliate, and accordingly, subject to Section 14.2, this Plan and the benefits hereunder may be terminated at any time in the sole and exclusive discretion of the Committee without giving rise to liability on the part of the Company for severance payments.
17.8 Noncertificated Shares. To the extent that the Plan provides for issuance of certificates to reflect the transfer of Shares, the transfer of such Shares may be effected on a noncertificated basis, to the extent not prohibited by applicable law or the rules of any stock exchange or trading system.
17.9 Governing Law. The Plan and each Award Agreement shall be governed by the laws of California, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of the Plan to the substantive law of another jurisdiction. Unless otherwise provided in the Award Agreement, recipients of an Award under the Plan are deemed to submit to the exclusive jurisdiction and venue of the federal or state courts whose jurisdiction covers California to resolve any and all issues that may arise out of or relate to the Plan or any related Award Agreement.
17.10 Compliance with Code Section 409A. No Award that is subject to Section 409A of the Code shall provide for deferral of compensation that does not comply with Section 409A of the Code, unless the Board, at the time of grant, specifically provides that the Award is not intended to comply with Section 409A of the Code. Notwithstanding any provision in the Plan to the contrary, with respect to any Award subject to Section 409A, distributions on account of a separation from service may not be made to Key Employees before the date which is six (6) months after the date of separation from service (or, if earlier, the date of death of the employee).
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EXHIBIT 10.2
RESTRICTED STOCK AWARD AGREEMENT
Pursuant to the
NORTH BAY BANCORP
2002 INCENTIVE COMPENSATION PLAN
Name of Participant:
Date of Grant:
Number of Shares:
Value of each Share on Date of Grant:
This RESTRICTED STOCK AGREEMENT (the “Agreement”), dated as of [DATE], is made between North Bay Bancorp, a California corporation (the “Company”) and the above-named individual (the “Participant”) to record the granting of Restricted Stock on [DATE] (the “Date of Grant”) to the Participant pursuant to the North Bay Bancorp 2002 Incentive Compensation Plan (the “Plan”).
The Company and the Participant hereby agree as follows:
1.
Grant of Shares. The Company hereby grants to the Participant, as of the Date of Grant, subject to and in accordance with the terms and conditions of the Plan and this Agreement, ________ (______) shares of the Company's Common Stock (the “Common Stock”). The grant of shares of Common Stock to the Participant, evidenced by this Agreement, is an award of Restricted Stock (as defined in the Plan) and such shares of Restricted Stock are referred to herein as the “Shares.”
2.
Vesting of Shares. Ownership of the Shares shall vest pursuant to the following
vesting schedule, provided, in each case, any additional conditions and performance goals set forth inSchedule I have been satisfied and the Participant is still employed or retained by the Company or one of its Subsidiaries:
Anniversary of Date of Grant Shares Vested
(a)
Participant’s Disability or Death. In the event of the death or Disability of Participant prior to [vesting date], Participant shall immediately vest in a prorata amount of the Shares based on the number of anniversaries of the Date of Grant that have occurred prior to the date of Participant’s death or Disability1.
1
If the date of Participant’s death or Disability is after the first anniversary of the Date of Grant, 20% of the Shares will vest, if after the second anniversary of the Date of Grant, 40% of the Shares will vest, if after the third anniversary of the Date of Grant, 60% of the Shares will vest, and if after the fourth anniversary of the Date of Grant, 80% of the Shares will vest.
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3.
Forfeiture. Shares that do not become vested in accordance with the vesting criteria set forth in Section 2 (and any dividends or other distributions related to such Shares) shall be forfeited to the Company. Accordingly, if the Shares do not vest in accordance with the vesting criteria set forth in Section 2 and the Participant’s employment or service terminates for any reason, the Shares shall be forfeited. As security for Participant’s faithful performance of this Agreement, Participant agrees (i) immediately upon acceptance of this award to deliver the Stock Power attached hereto asExhibit 1 (the “Stock Power”) executed by Participant and Participant’s spouse, if any (with the date, certificate number(s), and number of Shares left blank) to the Human Resources Director of the Company or other designee of the Company (the “Escrow H older”) and (ii) immediately upon receipt of the stock certificate(s) evidencing the Shares, to deliver such certificate(s) to the Escrow Holder. The Escrow Holder is hereby appointed to hold the Stock Power and such certificate(s) in escrow and to take all such actions to effectuate all such transfers and/or release of such Shares as are in accordance with the terms of this Agreement. Escrow Holder will act solely for the Company as its agent and not as a fiduciary. Participant and the Company agreed that the Escrow Holder will not be liable to any party to this Agreement (or to any other party) for any actions or omissions unless Escrow Holder is gross negligent or intentionally fraudulent in carrying out the duties of Escrow Holder under this Agreement. Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and may rely on the advice of counsel and obey any order of any court with respect to transactions contemplate d by this Agreement.
4.
Legend. Each share certificate representing the Shares shall bear a legend indicating that such Shares are “Restricted Stock” and are subject to the provisions of this Agreement and the Plan.
5.
Withholding Taxes. If the Participant is an employee of the Company or any of its Subsidiaries, the Participant shall remit to the Company in cash the amount needed to satisfy any federal, state or local withholding taxes that may arise or be applicable as the result of the award or vesting of the Shares. The Participant may, with the Committee’s consent, elect to satisfy, totally or in part, such Participant’s obligations pursuant to this Section by electing to have Shares withheld provided such Shares are not subject to forfeiture, or to deliver previously owned Shares that have been held for at least six (6) months, provided that the election is made in writing on or prior to the vesting of shares pursuant to Section 2 hereof.
6.
General Restrictions on Issuance of Stock Certificates. The Company shall not be required to deliver any certificate representing the Shares until it has been furnished with such opinions, representations or other documents as it may deem necessary or desirable, in its discretion, to ensure compliance with any law or rules of the Securities and Exchange Commission or any other governmental authority having jurisdiction under the Plan or over the Company, the Participant, or the Shares or any interests granted thereunder.
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7.
Rights as Shareholder. Except for the dividend and distribution restrictions described below, and the transfer and other restrictions set forth elsewhere in this Agreement and in the Plan, the Participant, as record holder of the Shares, shall possess all the rights of a holder of the Company's Common Stock, including voting, dividend and other distribution rights, provided, however, that prior to vesting the certificates representing the Shares, as well as any dividends or other distributions with respect to such Shares, shall be held by the Company for the benefit of the Participant. Any distributions with respect to the Shares in the form of capital stock shall be treated as Restricted Stock in the same manner as the Shares. If the underlying Shares do not vest, then any capital stock distributed with respect to the Shares, as well as any other dividends or other distr ibutions with respect to such Shares, shall be forfeited to the Company. Upon forfeiture of any Shares, the Participant agrees to deliver promptly to the Company any certificates representing such Shares in Participant’s possession which do not vest and the Stock Power executed in blank covering such Shares (and covering any capital stock distributed with respect to such Shares). The Stock Power with respect to any certificate representing Shares which do not vest shall be completed in the name of the Company by an officer of the Company and returned to treasury.
8.
Transferability - Restricted Share Certificates. The Shares may not be sold, transferred, pledged, assigned, encumbered, or otherwise alienated or hypothecated until they become vested in accordance with Section 2 of this Agreement and then only to the extent permitted under this Agreement and the Plan and by applicable securities laws. Prior to vesting, all rights with respect to the Restricted Stock granted to a Participant under the Plan shall be available, during such Participant’s lifetime, only to such Participant. Immediately upon acceptance of the award contemplated by this Agreement, Participant’s spouse shall execute and deliver to the Escrow Holder the Spouse Consent attached hereto asExhibit 2.
9.
No Consultant/Employment Rights. Neither the Plan nor this award shall confer upon the Participant any right with respect to continuance of employment by or service as a consultant of the Company or any affiliate nor shall they interfere in any way with the right of the Company or any affiliate to terminate the Participant’s employment or service as a consultant at any time, with or without cause.
10.
Section 83(b) Election. The Participant may elect, within thirty (30) days of the Date of Grant pursuant to Section 83(b) of the Internal Revenue Code, to include in his or her gross income the fair market value of the Shares covered by this Agreement in the taxable year of grant. The election must be made by filing the appropriate notice with the Internal Revenue Service within thirty (30) days of the Date of Grant. If the Participant makes this election, the Participant shall promptly notify the Company by submitting to the Committee a copy of the election notice filed with the Internal Revenue Service. PARTICIPANT UNDERSTANDS THAT PARTICIPANT MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF PARTICIPANT’S ACCEPTANCE OF THE AWARD OR DISPOSITION OF THE SHARES. PARTICIPANT REPRESENTS (i) THAT PARTICIPANT HAS CONSULTED WITH A TAX ADVISER THAT PARTICIPANT DEEMS ADVISABLE IN CONNECTION WITH THE ACCEPTANCE OF THIS AWARD, DISPOSITION OF THE SHARES, AND THE FILING OF AN ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE. AND (ii) THAT PARTICIPANT IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE. PARTICIPANT HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING AN ELECTION UNDER SECTION 83(b) AND PAYING ANY TAXES RESULTING FROM SUCH ELECTON OR FROM THE FAILURE TO FILE THE ELECTION AND PAYING TAXES RESULTING FROM THE LAPSE OF THE RISK OF FORFEITURE.
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11.
Adjustment of Shares. As provided by the Plan, in the event of any change in the Common Stock of the Company by reason of any stock dividend, stock split, recapitalization, reorganization, merger, consolidation, split-up, combination, or exchange of Shares, or of any similar change affecting the Common Stock, the Shares shall be adjusted automatically consistent with such change to prevent substantial dilution or enlargement of the rights granted to, or available for, the Participant hereunder.
12.
Coordination with Plan. Terms used herein that are defined in the Plan shall have the meanings ascribed to them in the Plan. If there is any inconsistency between the terms of this Award Agreement and the terms of the Plan, the Plan’s terms shall supersede and replace the conflicting terms herein.
13.
Notices. All notices to the Company and the Committee shall be in writing and sent to the Company's Human Resources Director at the Company's offices, North Bay Bancorp or to such other person and/or addresses the Company may provide by notice to Participant. Notices to the Participant shall be addressed to the Participant at the Participant's address as it appears on the Company's records.
IN WITNESS WHEREOF, the Company and the Participant have caused this Restricted Stock Agreement to be executed on the date set forth opposite their respective signatures, it being further understood that the Date of Grant may differ from the date of signature.
Dated:
NORTH BAY BANCORP
Terry L. Robinson, President & CEO
Dated:
PARTICIPANT
[NAME]
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SCHEDULE I
ADDITIONAL VESTING CONDITIONS AND PERFORMANCE GOALS
28
EXHIBIT 1
STOCK POWER AND ASSIGNMENT
SEPARATE FROM STOCK CERTIFICATE
29
STOCK POWER AND ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Award Agreement dated as of _______________ ____, 20__ (the "Agreement"), the undersigned hereby sells, assigns and transfers unto ______________________________, __________________(_______) shares of the Common Stock of NORTH BAY BANCORP, a Californiacorporation (the "Company"), standing in the undersigned's name on the books of the Company represented by Certificate No(s). _______ delivered herewith, and does hereby irrevocably constitute and appoint the Human Resources Director of the Company as the undersigned's attorney-in-fact, with full power of substitution, to transfer said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE AGREEMENT AND ANY EXHIBITS THERETO.
Dated: _________________________
PURCHASER
___________________________________
(Signature)
___________________________________
(Please Print Name)
___________________________________
(Spouse's Signature)
___________________________________
(Please Print Spouse's Name)
Instructions to Purchaser: Please donot fill in any blanks other than the signature line. The purpose of this Stock Power and Assignment is to enable the Company and/or its assignee(s) to acquire the Shares upon forfeiture of the Shares under the terms and conditions set forth in the Agreement without requiring additional signatures on the part of the Purchaser or Purchaser's Spouse, if any.
30
EXHIBIT 2
SPOUSE CONSENT
31
SPOUSE CONSENT
The undersigned spouse of _____________________________ (the "Participant") has read, understands and hereby approves all the terms and conditions of the Restricted Stock Award Agreement dated [DATE] (the "Agreement"), by and between Participant and NORTH BAY BANCORP, a California corporation (the "Company"), pursuant to which Participant has been awarded ___________ (____) shares of the Company's common stock (the "Shares").
In consideration of the Company awarding my spouse the Shares under the Agreement, I hereby agree to be irrevocably bound by all the terms and conditions of the Agreement and further agree that any community property interest I may have in the Shares will be similarly bound by the Agreement.
I hereby appoint Participant as my attorney-in-fact, to act in my name, place and stead with respect to any amendment of the Agreement and with respect to the making and filing of an election under Internal Revenue Code Section 83(b) in connection with the purchase of the Shares.
Dated: ______________________________
___________________________________
Signature
___________________________________
Print Name
32
EXHIBIT 3
ELECTION UNDER SECTION 83(b) OF THE
INTERNAL REVENUE CODE
33
ELECTION UNDER SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code, as amended, to include in gross income for the Taxpayer's current taxable year the excess, if any, of the fair market value of the property described below at the time of transfer over the amount paid for such property, as compensation for services.
1.
TAXPAYER'S NAME:
TAXPAYER'S ADDRESS:
��
SOCIAL SECURITY NUMBER:
2.
The property with respect to which the election is made is described as follows: __________________ (____) Shares of the Common Stock, no par value, of NORTH BAY BANCORP, a California corporation (the "Company"), which is Taxpayer's employer or the corporation for whom the Taxpayer performs services.
3.
The date on which the Shares were transferred was ______________, 20_____ and this election is made for calendar year _________.
4.
The Shares are subject to the following restrictions: Forfeiture prior to vesting.
5.
The fair market value of the Shares (without regard to restrictions other than restrictions which by their terms will never lapse) was $_____________ per share at the time of transfer.
6.
The amount paid for such Shares was $______________ per share.
7.
The Taxpayer has submitted a copy of this statement to the Company.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS"), AT THE OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS,WITHIN 30 DAYS AFTER THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED WITH THE TAXPAYER'S INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE REVOKED WITHOUT THE CONSENT OF THE IRS.
Dated: ___________
____________________________________
Taxpayer's Signature
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EXHIBIT 23.2
CONSENT OF KPMG LLP AS INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS FOR NORTH BAY BANCORP
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The Board of Directors
North Bay Bancorp:
We consent to the incorporation by reference in the registration statement on Form S-8 of North Bay Bancorp of our reports dated March 15, 2006, with respect to the consolidated balance sheets of North Bay Bancorp and subsidiaries as of December 31, 2005 and 2004, and the related consolidated statements of operations, comprehensive income, changes in shareholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2005, management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2005, and the effectiveness of internal control over financial reporting as of December 31, 2005, which reports appear in the December 31, 2005, Annual Report on Form 10-K of North Bay Bancorp.
[Signed] KPMG LLP
San Francisco, California
June 2, 2006
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EXHIBIT 24
POWER OF ATTORNEY
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EXHIBIT 24
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes Terry L. Robinson or David B. Gaw and either of them as attorney-in-fact, to sign in his or her behalf, individually and in each capacity stated below, and to file this Registration Statement on Form S-8 and all amendments and/or supplements to this Registration Statement on Form S-8.
Signature
Title
Date
/s/ Thomas N. Gavin
Director
May 18, 2006
Thomas N. Gavin
Director
and
May __, 2006
David B. Gaw
Chairman of the Board
Director
May __, 2006
Fred J. Hearn Jr.
/s/ Conrad W. Hewitt
Director
May 18, 2006
Conrad W. Hewitt
/s/ Richard S. Long
Director
May 18, 2006
Richard S. Long
/s/ Thomas F. Malloy
Director
May 19, 2006
Thomas F. Malloy
/s/ Terry L. Robinson
President, Chief
May 18, 2006
Terry L. Robinson
Executive Officer and Director
(Principal Executive Officer)
Director
May __, 2006
Thomas H. Shelton
Director
May __, 2006
Stephen C. Spencer
/s/ Denise Suihkonen
Director
May 18, 2006
Denise Suihkonen
/s/ James T. Tidgewell
Director
May 18, 2006
James E. Tidgewell
/s/ Patrick Phelan
Exec. Vice President and
May 22, 2006
Patrick Phelan
Chief Financial Officer
(Principal Financial Officer)
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