FORM OF NONQUALIFIED STOCK OPTION AGREEMENT
EXHIBIT 10.2
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement is made and entered into pursuant
to the terms of the 2003 Stock Incentive Plan (the "Plan") adopted by the Board
of Directors and Shareholders of Umpqua Holdings Corporation (the "Company").
Unless otherwise defined herein, capitalized terms defined in this Nonqualified
Stock Option Agreement shall have the meanings as defined in the Plan.
THE "OPTIONEE" PATRICK J. RUSNAK
NUMBER OF SHARES OF THE 20,000
COMPANY'S COMMON STOCK
"EXERCISE PRICE" PER SHARE $22.15
"DATE OF GRANT" 07/09/2004
"EXPIRATION DATE" 07/09/2014
1. TERMS OF THE OPTION.
1.1 Grant of Option. The Company hereby grants to the Optionee the right,
privilege, and option (the "Option") to purchase up to the number of shares of
Common Stock indicated above (the "Option Shares") at the Exercise Price
indicated above, subject to adjustment in accordance with the terms and
conditions of the Plan. The Option may only be exercised as to a whole number of
shares of Common Stock.
1.2 Status of the Option as a Nonqualified Stock Option. It is intended by
the Company that the Option will not qualify as an incentive stock option within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
1.3 Limited Transferability of Option. The Option may be transferred by
gift to Permitted Transferees. "Permitted Transferees" includes the Optionee's
spouse, children or a trust for the exclusive benefit of any combination of the
Optionee, the Optionee's spouse and the Optionee's children. A transfer to a
Permitted Transfer will not be effective unless and until the Optionee and the
transferee of the Option execute and deliver to the Company a
Transfer/Assumption of Nonqualified Stock Option Agreement in the form requested
by the Company. Notwithstanding any transfer of the Option, the Optionee shall
remain liable to the Company for any income tax withholding amounts, which the
Bank is required to withhold at the time that the transferred Option is
exercised. Other than as set forth above, the Option and the rights of the
Optionee under this Nonqualified Stock Option Agreement may only be transferred
by will or by the laws of descent and distribution upon the death of Optionee.
1.4 Reservation of Shares. The Company agrees that at all times there will
be reserved for issuance upon exercise of the Option such number of shares of
its Common Stock as is required for such issuance.
2. TIME OF EXERCISE OF OPTION.
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2.1 When the Option Becomes Exercisable. Except as otherwise set forth in
Section 5.2 below, the Option may only be exercised in accordance with the
vesting schedule attached hereto (the "Vesting Schedule") and only to the extent
not previously exercised. In the event of certain changes in the capital
structure of the Company, the number of Option Shares vesting at any time as
indicated in the Vesting Schedule may be adjusted as determined appropriate by
the Committee.
2.2 Effect of Unpaid Leaves of Absence. Unless the Committee at the time
of such leave determines otherwise, if at any time during the term of the
Option, the Optionee is on unpaid leave from the Company or any Subsidiary, the
Option may not be exercised during such unpaid leave and the dates contained in
the Vesting Schedule shall be extended by the length of such unpaid leave.
2.3 Expiration and Termination of Option. The Option will expire upon the
close of business on the Expiration Date and may terminate earlier upon certain
events as set forth in Section 4 of this Nonqualified Stock Option Agreement. To
the extent that the Option has not been exercised prior to the Expiration Date
or any earlier termination, all further rights to purchase shares pursuant to
the Option will cease and terminate at such time.
3. OPTION EXERCISE PROCEDURES.
3.1 Who May Exercise the Option. Only the Optionee (or, in the case of
exercise after death of the Optionee, by the executor, administrator, heir, or
legatee of the Optionee, as the case may be) or the Permitted Transferee may
exercise the Option.
3.2 Notice of Exercise. A "Notice of Exercise" must be signed and
delivered to the Company's corporate Secretary or such other person as the
Company may designate at the Company's principal business office of the Company.
A copy of the Company's current form of Notice of Exercise is attached hereto.
The Company, however, reserves the right to revise its form of Notice of
Exercise from time-to-time as it determines to be appropriate. If, at the time
of the exercise of the Option, the Company does not have an effective
registration statement on file with the Securities and Exchange Commission that
covers the issuance of shares upon the exercise of the Option, the Notice of
Exercise will also contain certain representations from the Optionee as required
under applicable state and federal securities laws. A copy of the then-current
form of Notice of Exercise may be obtained at any time from the Company. A
notice will only be effective if submitted on the form in effect at the time of
such exercise.
3.3 Payment of Exercise Price. The Notice of Exercise must indicate the
manner of payment of the Exercise Price for the number of shares so purchased.
Payment shall be made by cash, by the surrender to the Company for cancellation
of shares of Common Stock or other securities of the Company, based on the Fair
Market Value of the Common Stock, (provided that the surrendered shares of
Common Stock or other securities of the Company shall have been held by the
Optionee for not less than six months), such other valid consideration as the
Committee may, in its sole discretion, permit or any combination of the
foregoing.
3.4 Payment of Tax Withholding. The Optionee shall pay or make adequate
provision for payment of Tax Withholding upon exercise of the Option. The notice
of exercise shall indicate the method of payment of Tax Withholding, which may
be accomplished by payment in cash, the Company withholding other amounts
payable by the Company to the Optionee, by the application of shares to be
received upon exercise of the Option based on Fair Market Value of the Common
Stock, the surrender of shares of Common Stock or other securities of the
Company based on the Fair Market Value of the Common Stock (provided that the
surrendered shares of Common Stock or other securities of the Company shall have
been held by the Optionee for not less than six months) or any combination of
the foregoing.
3.5 Delivery of Shares Following Exercise. The Company will make delivery
of a certificate representing the Option Shares purchased within a reasonable
time after it receives the Notice of Exercise,
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payment in full of the Exercise Price of the Option Shares being purchased and
the payment or adequate provision for payment of Tax Withholding. However, if
any law or regulation requires the Company to take any action with respect to
the issuance of the Option Shares, including, without limitation, actions that
may be required for compliance with federal and state securities laws or the
listing requirements of any stock exchange upon which the Company's Common Stock
is then listed, then the date of delivery of such certificate may be extended
for the period necessary to take such action. The Optionee shall only become the
holder of such shares when the issuance of the shares is reflected on the
Company's stock transfer record, except that if the Option is exercised
conditioned on the occurrence of a Change of Control Transaction, as provided
for in Section 5.3 below, the Optionee shall be deemed a holder of such shares
as of the effective date of the Change of Control Transaction.
4. TERMINATION OF THE OPTION
4.1 Effect of the Death of the Optionee. If the Optionee dies while an
employee of the Company or any Subsidiary, the Option will terminate one year
after the date of such death or, if sooner, upon the Expiration Date. In such
event, the Option may be exercised only to the extent the Optionee was entitled
to exercise the Option on the date of the Optionee's death and only by a
Permitted Transferee or the person or persons to whom the Optionee's rights
under the Option may pass by the Optionee's will or by the laws of descent and
distribution of the state or country of the Optionee's domicile at the time of
death.
4.2 Effect of the Disability of the Optionee. If the Optionee's employment
by the Company or any Subsidiary terminates as a result of the Optionee becoming
Disabled (as defined in the Plan) while an employee of the Company or any
Subsidiary, the Option will terminate one year after the date of such
termination of employment or, if sooner, upon the Expiration Date. In such
event, the Option may be exercised only to the extent the Optionee or Permitted
Transferee was entitled to exercise the Option on the date of such termination.
4.3 Effect of Termination of the Employment of the Optionee for Cause. If
the Optionee's employment with the Company or any Subsidiary is terminated for
"cause," the Option will terminate on the effective date of the termination of
the Optionee's employment and shall no longer be exercisable as to any of the
remaining Option Shares. "Cause" shall have the definition given in the
Optionee's employment, severance, or change in control agreement, if any, or if
the Optionee has no such agreement, "cause" shall be determined by the Company's
President or Board of Directors in their reasonable discretion.
4.4 Effect of any other Termination of the Employment of the Optionee. If
the Optionee's employment with the Company or any Subsidiary terminates for any
reason other than the reasons set forth in Sections 4.1, 4.2 or 4.3 of this
Nonqualified Stock Option Agreement, the Option will terminate thirty (30) days
after the date of such termination of employment or, if sooner, upon the
Expiration Date. In such event, the Option may be exercised only to the extent
the Optionee or Permitted Transferee was entitled to exercise the Option on the
date of such termination.
4.5 Effect of Change of Control Transaction. Notwithstanding the
provisions of Sections 2.3, 4.1, 4.2, 4.3 or 4.4, the Option may terminate upon
the earlier occurrence of a Change of Control Transaction as provided in Section
5.5 below.
5. EFFECT OF CHANGE OF CONTROL TRANSACTION
5.1 Notice of Change of Control Transaction. The Company will provide the
Optionee with written notice of any Change of Control Transaction and will
undertake reasonable efforts to provide such notice at least fifteen (15) days
prior to the effective date of the Change of Control Transaction. Such notice
shall generally describe the expected Change of Control Transaction and the
anticipated effects of the transaction on the Optionee's rights under this
Nonqualified Stock Option Agreement.
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5.2 Accelerated Vesting. Accelerated vesting upon the occurrence of a
Change of Control Transaction, if any, shall be as set forth in the Vesting
Schedule.
5.3 Conditional Exercise and Deferred Payment. In anticipation of a Change
of Control Transaction, the Optionee shall be permitted to tender a notice of
exercise of the Option that is conditioned on the Change of Control Transaction
actually occurring and the Optionee shall not be required to tender payment of
the exercise price or amounts that the Company may be required to withhold for
tax purposes until after the occurrence of the Change of Control Transaction.
5.4 Effect on Option Shares and Exercise Price. Following the occurrence
of any Change of Control Transaction, the Option shall be exercisable for the
number and kind of shares, other securities, debt instruments, cash or other
property for which the Option Shares would have been exchanged if they had been
outstanding at the time of the Change of Control Transaction. In addition, the
Exercise Price shall be adjusted such that the aggregate exercise price
following such Change of Control Transaction shall be equal to the product of
the Exercise Price per Share prior to the Change of Control Transaction
multiplied by the number of Option Shares that could be purchased under the
Option at such time without regard to the Vesting Schedule. The determination of
the Committee as to what, if any, adjustments need to be made to the Option
Shares and the Exercise Price and the extent thereof will be final and
conclusive and shall be binding upon the Optionee.
5.5 Termination. The Option shall terminate effective as of the effective
date of a Change of Control Transaction, unless the terms and conditions of the
Change of Control Transaction provide for the assumption of the Plan and the
continuation of this Nonqualified Stock Option Agreement. Alternatively, the
terms and conditions of the Change of Control Transaction may provide for the
issuance to the Optionee by the Company's successor of a substitute option
granted under a plan adopted by such successor and, subject to Sections 5.2 and
5.4 above, containing terms and conditions substantially equivalent to the terms
and conditions of the Option.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OPTIONEE.
6.1. No Effect on Employment. The Optionee understands and agrees that
nothing contained in this Nonqualified Stock Option Agreement will be construed
to limit or restrict the rights of the Company to terminate the employment of
the Optionee at any time, with or without cause, to change the duties of the
Optionee or to increase or decrease the Optionee's compensation. Without
limiting the foregoing, the Optionee understands and agrees that the vesting of
shares under this Nonqualified Stock Option Agreement is subject to and is
conditioned upon the continued employment of the Optionee by the Company or a
Subsidiary and that such employment can be terminated at any time by the Company
or its Subsidiary prior to some or all of the Option Shares vesting. In the
event of any such termination, the Optionee understands and agrees that the
Optionee shall have no right or claim, under contract, under any other legal
principle or under any equitable principle to any portion of the unvested Option
Shares.
6.2 Rights Prior to Exercise of the Option. The Optionee understands and
agrees that the Optionee will have no rights as a shareholder in the Option
Shares, including, without limitation, the right to vote or receive dividends,
until the issuance of the shares is reflected in the Company's stock transfer
records.
6.3 Tax Implications. The Optionee understands that, under federal, state
and local income tax laws as they currently exist, the exercise of the Option
will result in ordinary income to the Optionee in the amount by which the Fair
Market Value (as of the date of exercise) of the shares acquired upon exercise
exceeds the Exercise Price.
6.4 Underwriter's Lock-up. The Optionee by accepting the Option agrees
that whenever the Company undertakes a firm underwritten public offering of its
securities and if requested by the managing
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underwriter in such offering, the Optionee will enter into an agreement not to
sell or dispose of any securities of the Company owned or controlled by the
Optionee provided that such restriction will not extend beyond twelve (12)
months from the effective date of the registration statement filed in connection
with such offering.
6.5 Disclosures. The Optionee acknowledges receipt of a copy of the Plan
and certain related information and represents that the Optionee has fully
reviewed the terms and conditions of the Plan and this Nonqualified Stock Option
Agreement and has had opportunity to obtain the advice of counsel prior to
executing this Nonqualified Stock Option Agreement. The Optionee represents and
warrants that the Optionee is not relying upon any representations, agreements
or understandings of or with the Company except for those set forth in this
Nonqualified Stock Option Agreement.
7. MISCELLANEOUS PROVISIONS
7.1 Binding Effect. This Nonqualified Stock Option Agreement will be
binding upon and inure to the benefit of the parties hereto and their heirs,
executors, administrators, successors, and assigns.
7.2 Notices. All notices or other communications pursuant to this
Agreement shall be in writing and shall be deemed duly given if personally
delivered or if mailed by certified mail, return receipt requested, prepaid and
addressed to the address of the party as set forth in this Agreement or such
other address as such party shall have furnished to the other party in writing.
7.3 Governing Law and Interpretation. This Nonqualified Stock Option
Agreement and the Option granted hereunder will be governed by the laws of the
State of Oregon as to all matters, including but not limited to matters of
validity, construction, effect, and performance, without giving effect to rules
of choice of law. This Nonqualified Stock Option Agreement hereby incorporates
by reference all of the provisions of the Plan and will in all respects be
interpreted and construed in such manner as to effectuate the intent of the
Plan. In the event of a conflict between the terms of this Nonqualified Stock
Option Agreement and the Plan, the terms of the Plan will prevail. All matters
of interpretation of the Plan and this Nonqualified Stock Option Agreement,
including the applicable terms and conditions and the definitions of the words,
will be determined in the sole and final discretion of the Committee or the
Company's Board of Directors.
7.4. Arbitration. The parties agree to submit any dispute arising under
this Nonqualified Stock Option Agreement to final, binding, private arbitration
in Portland, Oregon. This includes not only disputes about the meaning or
performance of the Nonqualified Stock Option Agreement, but also disputes about
its negotiation, drafting, or execution. The dispute will be determined by a
single arbitrator in accordance with the then-existing rules of arbitration
procedure of Multnomah County, Oregon Circuit Court, except that there shall be
no right of de novo review in Circuit Court and the arbitrator may charge his or
her standard arbitration fees rather than the fees prescribed in the Multnomah
County Circuit Court arbitration procedures. The proceeding will be commenced by
the filing of a civil complaint in Multnomah County Circuit Court and a
simultaneous request for transfer to arbitration. The parties expressly agree
that they may choose an arbitrator who is not on the list provided by the
Multnomah County Circuit Court Arbitration Department, but if they are unable to
agree upon the single arbitrator within ten days of receipt of the Arbitration
Department list, they will ask the Arbitration Department to make the selection
for them. The arbitrator will have full authority to determine all issues,
including arbitrability, to award any remedy, including permanent injunctive
relief, and to determine any request for costs and expenses in accordance with
Section 7.5 of this Agreement. The arbitrator's award may be reduced to final
judgment in Multnomah County Circuit Court. The complaining party shall bear the
arbitration expenses and may seek their recovery if it prevails. Notwithstanding
any other provision of this Agreement, an aggrieved party may seek a temporary
restraining order or preliminary injunction in Multnomah County Circuit Court to
preserve the status quo during the arbitration proceeding.
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7.5 Attorney Fees. If any suit, action, or proceeding is instituted in
connection with any controversy arising out of this Nonqualified Stock Option
Agreement or the enforcement of any right hereunder, the prevailing party will
be entitled to recover, in addition to costs, such sums as the court may adjudge
reasonable as attorney fees, including fees on any appeal.
UMPQUA HOLDINGS CORPORATION
By:_____________________________________________
Raymond P. Davis, Chief Executive Officer
OPTIONEE:
_______________________________
Patrick J. Rusnak
Address:_______________________________________________
______________________________________________
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NONQUALIFIED STOCK OPTION AGREEMENT
VESTING SCHEDULE
Under the Nonqualified Stock Option Agreement to which this Vesting Schedule is
attached, Option Shares shall vest and the Option may be exercised only as the
number of Option Shares in accordance with the following schedule:
Number of Aggregate Number
Vesting Date Shares Vesting of Vested Shares
- ------------ -------------- ----------------
07/09/2005 4,000 4,000
07/09/2006 4,000 8,000
07/09/2007 4,000 12,000
07/09/2008 4,000 16,000
07/09/2009 4,000 20,000
Upon the occurrence of a Change of Control Transaction, all unvested Option
Shares shall vest as of the effective date of the Change of Control Transaction
notwithstanding the terms of the Vesting Schedule unless, as an expressed term
of the Change of Control Transaction, adequate provision is made for the
continuation of the Option after the occurrence of the Change of Control
Transaction either through assumption of the Plan and this Nonqualified Stock
Option Agreement or through the granting to the Optionee by the Company's
successor of a substitute option granted under a plan adopted by such successor
and, subject to Section 5.4 of the Nonqualified Stock Option Agreement,
containing terms and conditions substantially equivalent to the terms and
conditions of the Option.
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NOTICE OF EXERCISE OF NONQUALIFIED STOCK OPTION
TO: UMPQUA HOLDINGS CORPORATION (the "Company")
This Notice of Exercise serves as an irrevocable notice from the undersigned of
the undersigned's intent to exercise the Option granted under following
Nonqualified Stock Option Agreement to purchase shares of the Company's Common
Stock (all of which are vested under the Nonqualified Stock Option Agreement)
under and in accordance with the terms and conditions set forth in the Plan
under which the Option was granted and the terms of the written Nonqualified
Stock Option Agreement.
DATE OF GRANT OF THE OPTION _____________________,________
NUMBER OF SHARES BEING PURCHASED
THROUGH THE EXERCISE OF THE OPTION ______________________________
EXERCISE PRICE PER SHARE $_____________________________
AGGREGATE EXERCISE PRICE $_____________________________
(MUST EQUAL NUMBER OF SHARES MULTIPLIED BY EXERCISE PRICE PER SHARE)
METHOD OF PAYMENT (INDICATED SELECTED METHOD OR METHODS)
Exercise Price Tax Withholding
______ _______ Cash Payment. My check is stapled to this
notice.
______ _______ Delivery of certificate(s) representing
shares of the Company's Common Stock that I
have held for at least six months. The
certificate(s) are duly endorsed for
cancellation of that number of shares that
have a fair market value as of the date of
exercise equal to the aggregate exercise
price less any cash payment enclosed.
______ _______ Delivery of an affidavit attesting to my
ownership of _________ shares of the
Company's Common Stock that I have held for
at least six months. The shares which I
currently own will not be cancelled but the
new certificate representing the Option
Shares being purchased by this exercise will
be reduced by that number of shares that
have a fair market value as of the date of
exercise equal to the aggregate exercise
price less any cash payment enclosed.
______ _______ Broker Assisted Cashless Exercise. I have
instructed the following broker to wire
transfer to the Company from my account an
amount equal to the aggregate exercise price
and/or Tax Withholding.
Name of Broker:_____________________________
Mailing Address:____________________________
Telephone Number:___________________________
Brokerage Account Number:___________________
____________________________________ _______________________________________
(signature of the Optionee) (name of the Optionee, printed)
_______________________________________
(date of signing of notice of exercise)
_________________________________________
(mailing address for shareholder records)
_______________________________________
(The Optionee's social security number)
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