Exhibit 10.1
VALLEY COMMERCE BANCORP
AMENDED AND RESTATED 1997 STOCK OPTION PLAN
1. Purpose of Plan
The Valley Commerce Bancorp Amended and Restated 1997 Stock Option Plan is
intended to encourage officers, employees and directors of Valley Commerce
Bancorp, a California corporation (the "Company"), and its Subsidiaries to
acquire stock in the Company and to provide such persons with an additional
incentive to promote the financial success of the Company.
2. Defined Terms
Capitalized terms used in this Plan have the following meanings:
(a) "Board of Directors": The Board of Directors of the Company.
(b) "Change of Ownership": Any (i) merger, consolidation, share
exchange or reorganization of the Company with any other corporation in which
the Company is not the surviving corporation, (ii) dissolution or complete
liquidation of the Company, (iii) sale of all or substantially all of the assets
of the Company, or (iv) transaction (or series of related transactions) in which
there is a change in the beneficial ownership, directly or indirectly, of
securities of the Company representing 50 percent or more of the combined voting
power or value of the Company's then outstanding equity securities. The term
"equity securities" shall have the meaning set forth in Section 3(a)(11) of the
Securities Exchange Act of 1934.
(c) "Code": The Internal Revenue Code of 1986, as amended, together
with all regulations.
(d) "Committee": The Planning and Personnel Committee of the Board
of Directors, or if there is none, the Board of Directors.
(e) "Common Stock": The Common Stock of the Company, or such other
class or kind of shares or other securities as may be applicable pursuant to the
provisions of Section 5(b) hereof.
(f) "Company": Valley Commerce Bancorp, a California corporation and
a bank holding company under the Bank Holding Company Act of 1956.
(g) "Effective Date": The date on which the Plan shall become
effective as set forth in Section 11.
(h) "Fair Market Value": As applied to a specific date, the fair
market value of the Common Stock on such date as determined in good faith by the
Committee in the following manner:
(1) If the shares of Common Stock are then listed on any
national or regional stock exchange, the Fair Market Value shall be the mean
between the high and low sales price on the date in question, or if there are no
reported sales on such date, on the last preceding date on which sales were
reported;
(2) If the shares of Common Stock are not so listed, then the
Fair Market Value shall be the mean between the bid and ask prices quoted by a
market maker or other recognized specialist in the shares of Common Stock at the
close of the date in question;
(3) In the absence of either of the foregoing, the Fair Market
Value shall be determined by the Committee in its absolute discretion after
giving consideration to the book value, the earnings history and the prospects
of the Company in light of market conditions generally.
The Fair Market Value determined in such manner shall be final, binding
and conclusive on all parties.
(i) "ISO": A stock option intended to meet the requirements of an
"incentive stock option," as defined in Section 422 of the Code or any statutory
provision that may replace such Section.
(j) "NQSO": A stock option (i) not intended to be an ISO and
designated a non-qualified stock option by the Committee, (ii) in excess of the
aggregate fair market value limitations set forth in Section 3(c) of this Plan,
or (iii) intended to be an incentive stock option but which does not meet the
requirements of incentive stock options.
(k) "Option": Any stock option, either an ISO or NQSO, granted from
time to time under the Plan.
(l) "Optionee": An officer, employee or director of the Company or
any of its Subsidiaries who has been granted an Option, and those heirs,
legatees or legal representatives of such officer, employee or director who may
exercise an Option pursuant to Section 7(b).
(m) "Plan": This Valley Commerce Bancorp Amended and Restated 1997
Stock Option Plan, as it may be amended from time to time.
(n) "Stock Option Agreement": A stock option agreement evidencing an
Option in a form adopted by the Committee pursuant to Section 10(b).
(o) "Subsidiary": A "subsidiary corporation" as defined in Section
424(f) of the Code, including any subsidiary corporation which becomes such
after the Effective Date of the Plan.
3. Incentive Stock Options
(a) Eligibility. Full-time salaried officers and employees of the
Company or a Subsidiary shall be eligible for selection to receive ISOs. No
director of the Company who is not
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also a full-time salaried officer or employee of the Company or a Subsidiary may
be granted an ISO hereunder. Subject to the express provisions of the Plan, the
Committee shall select from the eligible class of employees and make
recommendations to the Board of Directors concerning the individuals to whom
ISOs shall be granted, the terms and provisions of the respective Incentive
Stock Option Agreements, the times at which such ISOs shall be granted, and the
number of shares subject to each ISO. An individual who has been granted an ISO
hereunder may, if he or she is otherwise eligible, be granted additional ISOs if
the Board shall so determine.
(b) Ten Percent or Greater Shareholders. Except as described in
subsection (d) below, the Board of Directors or the Committee shall not grant an
ISO to any individual who, at the time of the grant, owns stock possessing more
than 10 percent of the total combined voting power or value of all classes of
stock of the Company or a Subsidiary. The attribution rules of Section 424(d) of
the Code shall apply in the determination of ownership of stock for these
purposes.
(c) Limitation on Value of ISOs. The aggregate fair market value
(determined as of the time the ISO is granted) of stock with respect to which
ISOs are exercisable for the first time by an individual during any calendar
year (under all plans of the Company and its Subsidiaries, if any) shall not
exceed $100,000, plus any greater amount as may be permitted under subsequent
amendments to the Code.
(d) Purchase Price of ISOs. The purchase price of stock subject to
each ISO shall be determined by the Board or the Committee, but shall not be
less than 100 percent of the fair market value of such stock at the time such
option is granted, except, in the case of officers and employees who at the time
of the grant own more than 10 percent of the total combined voting power of all
classes of stock of the Company or a subsidiary corporation (as defined in
Section 422 of the Code), in which case the purchase price of the stock shall
not be less than 110 percent of the fair market value of such stock at the time
such option is granted, and the term of such option shall be for no more than
five years.
4. Nonqualified Stock Options
(a) Eligibility. Directors, full-time salaried officers (including
full-time salaried officers who are also directors) and employees of the Company
or a Subsidiary shall be eligible for selection to receive NQSOs. Subject to the
express provisions of the Plan, the Committee shall select from the eligible
class of individuals and make recommendations to the Board concerning the
individuals to whom NQSOs shall be granted, the terms and provisions of the
respective Nonqualified Stock Option Agreements (which need not be identical),
the times at which such NQSOs shall be granted, and the number of shares subject
to each NQSO. An individual who has been granted a NQSO may, if he or she is
otherwise eligible, be granted additional NQSOs if the Board of Directors shall
so determine.
(b) Purchase Price of NQSOs. The purchase price of stock subject to
each NQSO shall be determined by the Board of Directors or the Committee, but
shall not be less than 100 percent of the fair market value of such stock at the
time such option is granted.
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5. Shares Subject to Plan
(a) Maximum Shares. The maximum number of shares of Common Stock
that may be subject to Options and which are reserved for the Plan is 140,000
shares of Common Stock, subject to adjustment as provided in Section 5(b). If an
Option expires or terminates for any reason without having been fully exercised,
the unpurchased shares of Common Stock shall be added to the shares of Common
Stock available for Options. The unpurchased shares of Common Stock shall not
increase the maximum number of shares of Common Stock which may be subject to
Options. Notwithstanding the foregoing, the number of shares for which Options
may be granted and outstanding at any one time under the Plan may not exceed
140,000 less the number of shares for which options are outstanding at such time
under the Company's Amended and Restated 1997 Stock Option Plan.
(b) Adjustment of Shares and Price. In the event that the Common
Stock is changed into or exchanged for a different kind or number of shares of
stock or securities of the Company as the result of any stock dividend, stock
split, combination of shares, exchange of shares, merger, consolidation,
reorganization, recapitalization or other change in capital structure, then,
unless the change results in the termination of outstanding Options pursuant to
Section 7(c) or 7(d), the number of shares of Common Stock subject to this Plan
and to outstanding Options and the exercise price for such shares shall be
equitably adjusted by the Committee to prevent the dilution or enlargement of
rights. Any new stock or securities into which the Common Stock has been changed
or for which it has been exchanged shall be substituted for the Common Stock
subject to this Plan and to outstanding Options; provided, however, that
fractional shares may be deleted from the adjustment or substitution. Any
determination made by the Committee pursuant to this Section shall be
conclusive.
6. Granting of Options
The Board of Directors shall from time to time, in its sole discretion but
subject to this Plan, determine:
(a) the persons who will be granted Options;
(b) the number of shares of Common Stock subject to each Option;
and
(c) whether the Option will be an ISO or an NQSO.
An Option shall be considered to be granted on the date on which the Board
of Directors authorizes the grant, provided that the Optionee executes a Stock
Option Agreement in the form required by the Board of Directors. No Option
pursuant to this Plan shall be granted to any eligible individual, if such
Option grant along with all other outstanding Options of such individual would
result in such individual having Options to acquire a number of shares of the
Company that would in total be in excess of 10 percent of the outstanding shares
of the Company. New Options may not be granted after the tenth anniversary of
the Effective Date; provided, however, that the Board of Directors may, in its
sole discretion, direct the Committee to suspend or cease granting Options at an
earlier date.
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7. Exercise of Options
(a) Exercise Rights. Subject to Sections 3(d) and 3(f) and Sections
7(b), 7(c) and 7(d), at the time of grant of the Option the Committee shall
determine and set forth in the Stock Option Agreement the time or times the
Option may be exercised, the period or periods during which the Option may be
exercised, and the number of shares subject to the Option, except that
(i) no Option shall be exercisable prior to the date the Plan
is approved by the Company's shareholders pursuant to Section 11;
(ii) no Option shall be exercisable after the expiration of 10
years from the date of grant; and
(iii) the calculation of the vesting period shall be suspended
during any leave of absence at the request, or with the approval, of the Company
or a Subsidiary.
(b) Exercise of Options Following Termination of Employment. Subject
to earlier termination of an Option pursuant to Section 7(a)(ii), 7(d), or 11,
an Optionee who is an employee of the Company or a Subsidiary shall have the
right, within the following periods of time following termination of the
Optionee's employment with the Company or a Subsidiary, to exercise the
Optionee's Option for up to the same number of shares that the Optionee would
have been able to exercise on the date immediately preceding the date the
Optionee's employment was terminated (without regard to any severance pay,
vacation pay or other payments upon termination):
(i) one year when termination is caused by the death or
disability (meaning the Optionee is unable to engage in any substantial gainful
activity by reason of a medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months); or
(ii) three months after termination for any reason other than
the death or disability of the Optionee.
In the event of the death of an Optionee who is an employee of the Company
or a Subsidiary, the Optionee's heirs, legatees or legal representatives shall
have the right to exercise the Optionee's Option for up to the same number of
shares that the Optionee would have been able to exercise on the date
immediately preceding the date the Optionee's employment was terminated (without
regard to any severance pay, vacation pay or other payments upon termination).
To the extent the Option remains unexercised as of the end of the applicable
period of time following termination of the Optionee's employment, the Option
shall automatically terminate.
A leave of absence at the request, or with the approval, of the Company or
a Subsidiary shall not be deemed a termination for purposes of this Section
7(b), so long as the period of such
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leave does not exceed 90 days, or, if longer, so long as the Optionee's right to
reemployment with the Company (or a Subsidiary) is guaranteed by contract.
(c) Exercise of NQSOs Following Termination of Directorship. Subject
to earlier termination of a NQSO pursuant to Section 7(a)(ii), 7(d), or 11, an
Optionee who is a non-employee director of the Company shall have the right, at
any time within six months following termination of the Optionee's term as a
director of the Company, to exercise the Optionee's Option for up to the same
number of shares that the Optionee would have been able to exercise on the date
immediately preceding the date the Optionee's directorship was terminated.
(d) Change of Ownership. In the event of a Change of Ownership
consisting of a merger or consolidation in which the Company will not be the
surviving corporation, each Option then outstanding shall become fully
exercisable upon adoption by the Board of Directors of a plan or arrangement for
such transaction; provided, the original vesting schedule shall be restored if
the transaction is not completed. If the surviving corporation does not provide
for the assumption of any Option or a substitution of a new option for any
Option, the Company may cancel any Option not exercised prior to or as of the
consummation of the Change in Ownership.
To the extent not inconsistent with any applicable law, the Company shall
use its best efforts to give at least 15 days advance notice of any proposed
Change of Ownership transaction to each Optionee who has outstanding unexercised
Options, which notice shall describe the transaction in general terms, and
notify the Optionee of any action which the Company and the surviving
corporation, if other than the Company, have decided to take pursuant to this
Section 7(d) with respect to that Optionee's Options.
(e) Termination for Cause. If the Optionee is determined by the
Board of Directors to have committed an act of embezzlement, fraud, dishonesty
or breach of fiduciary duty to the Company, or to have deliberately disregarded
the rules of the Company which resulted in loss, damage or injury to the
Company, or if the Optionee makes any unauthorized disclosure of any of the
secrets or confidential information of the Company, induces any client or
customer of the Company to break any contract with the Company or induces any
principal for whom the Company acts as agent to terminate such agency
relationship, or engages in any conduct which constitutes unfair competition
with the Company, or if the Optionee is removed from any office of the Company
by any regulatory agency, neither the Optionee nor the Optionee's estate shall
be entitled to exercise any Option whatsoever, whether or not after termination
of employment and whether the Optionee may receive any other benefits, including
severance or salary continuation payments for any period.
8. Exercise Procedure and Payment
(a) Exercise Procedure. To exercise an Option, an Optionee must give
written notice to the Company in form satisfactory to the Company specifying the
number of whole shares, but in increments of not less than 10 (unless the
Optionee is exercising all Options held), that the Optionee elects to purchase.
The Company shall specify a closing date, which shall be not more than 30 days
after the date of the Optionee's notice, for the payment of the exercise price
and the issuance of the Common Stock being purchased. If any purchase of shares
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requires the consent of or a filing with or notice to the Securities and
Exchange Commission or any other applicable federal or state agency charged with
the administration of applicable securities laws, the time period specified for
the closing shall be extended for such periods as the necessary consent, filing
or notice period is pending. The date of exercise shall be the date on which the
written notice is received by the Company. On or before the closing date, the
Optionee must deliver to the Company in form satisfactory to the Company all
documents required under the Plan, the Stock Option Agreement and applicable
laws and regulations with regard to the purchase of the shares of Common Stock,
together with full payment of the exercise price and payment in cash of such
amount as may be required to pay any and all applicable withholding taxes.
Payment of the exercise price shall be made either (i) in cash (including check,
bank draft or money order), or (ii) with the consent of the Committee and
subject to Section 8(b), by delivering shares of Common Stock already owned by
the Optionee, or (iii) by a combination of these forms of payment. Subject to
compliance with this Plan and with any requirements imposed by the Committee or
Bank under this Plan, the Company shall issue and deliver to the Optionee on the
specified closing date or at the earliest practicable date after the specified
closing date one or more certificates for the number of shares of Common Stock
purchased. No Optionee shall have any rights of a shareholder with respect to
any shares of Common Stock until certificates for the shares have been issued.
(b) Payment with Stock. With the consent of the Committee, the
Optionee may deliver Common Stock already owned by the Optionee, valued at Fair
Market Value as of the closing date, in full or partial payment of the exercise
price of the shares of Common Stock subject to any Option; provided, however,
that no Common Stock already owned by the Optionee which is "statutory option
stock" as defined in Section 424(c)(3) of the Code may be delivered in payment
of the exercise price if the applicable holding period requirements for such
Common Stock under Sections 422(a)(1) or 423(a)(1) of the Code have not been met
at the time of exercise.
(c) Cashless Exercise. With the consent of the Committee and subject
to applicable holding periods after grant of an Option, an Optionee may engage,
through a broker, in a "cashless exercise," pursuant to which the Optionee sells
all or some of the shares acquired substantially simultaneously with the
exercise of the Option and remits to the Company net proceeds of the sale equal
to the exercise price, and in such case the Company shall cooperate with the
Optionee in this process; provided, the Optionee shall bear any costs of such
process.
9. Restrictions on Transfers; Securities Law Compliance
(a) Transferability of Options. No Option shall be transferable
otherwise than by will or under the laws of descent and distribution, nor shall
any Option be sold, pledged, assigned, hypothecated, or encumbered. Each Option
shall be exercisable, during the lifetime of the Optionee, only by the Optionee.
(b) Compliance with Securities and Other Laws. The Company may
require investment or residency representations from an Optionee or impose other
restrictions prior and as a condition to issuance of shares to the Optionee or
transfer of shares by the Optionee. Shares of Common Stock shall not be issued
to any Optionee until the Company has
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obtained any required approval of any governmental authority or of any stock
exchange on which the Common Stock is then listed and the Company and its
counsel are satisfied that the proposed issuance complies with all applicable
federal and state securities and other laws. Shares of Common Stock purchased
under Options may not be transferred, sold, pledged, hypothecated or encumbered
except in accordance with all applicable federal and state securities laws,
rules and regulations and the provisions of this Plan and the Stock Option
Agreements, and the certificates for the shares of Common Stock issued may bear
a legend to that effect. Under no circumstances shall the Company be obligated
to register or qualify the shares of Common Stock purchased under Options with
the Securities and Exchange Commission or with applicable state securities
agencies.
10. Administration of Plan
(a) The Committee. The Plan shall be administered by the Committee,
which shall act upon majority vote. The Committee shall consist of three or more
members of the Board of Directors. If at any time any class of equity securities
of the Company is registered pursuant to Section 12(b) or (g) of the Securities
Exchange Act of 1934, then, to the extent possible, the Committee shall consist
of two or more directors, all of whom shall, while serving on the Committee, be
"disinterested administrators," within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934 as at such time in effect or any other provision
that may replace the Rule and be in effect at such time.
(b) Committee Authority. To clarify the Committee's powers and
duties, but not to limit them, the Committee has full authority and power to:
(i) Interpret the provisions of the Plan and make rules and
regulations for the administration of the Plan which are not inconsistent with
the Plan;
(ii) Decide all questions of eligibility for Plan
participation and for the grant of Options;
(iii) Adopt forms of Stock Option Agreements and other
documents consistent with the Plan and, in the case of ISOs, with Section 422 of
the Code;
(iv) Engage agents to perform legal, accounting and other
professional services as it may deem proper for administering the Plan; and
(v) Take other actions reasonably required or appropriate to
administer the Plan or to carry out the Committee activities contemplated by the
Plan.
(c) Indemnification. In addition to other rights of indemnification
as they may have as directors or as members of the Committee, the members of the
Committee shall be indemnified by the Company against the reasonable expenses,
including court costs and reasonable attorneys' fees, actually incurred in
connection with the defense of any action, suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the Plan or
any Option, and against all amounts paid by them in settlement or in
satisfaction of a judgment in any
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such action, suit or proceeding, except where such indemnification is expressly
prohibited by the applicable laws of the State of California.
11. Effective Date
The Effective Date of the Plan shall be the date of its adoption by the
Board of Directors; provided, however, that no Option shall be exercisable prior
to the approval of the Plan by the holders of a majority of the shares of Common
Stock of the Company represented at a meeting of the shareholders at which the
Plan is considered. If shareholder approval is not obtained within one year
after the Effective Date, then the Plan and all Options shall automatically
terminate on the first anniversary of the Effective Date.
12. Amendment and Termination
(a) The Plan.
(i) Amendment. The Board of Directors may amend the Plan from
time to time in its sole discretion; provided, however, that no amendment shall,
without the approval of the shareholders of the Company in the manner provided
in Section 11 and in accordance with Section 422 of the Code, (a) change the
class of persons eligible to receive Options or otherwise materially modify the
requirements as to eligibility for participation in the Plan; (b) increase the
aggregate number of shares of Common Stock which may be purchased upon exercise
of Options and issued under the Plan; or (c) materially increase the benefits
accruing to Optionees under the Plan. Any amendment in violation of these
restrictions shall be void and of no effect. Furthermore, no amendment shall
impair the rights of any Optionee under any Option, without the Optionee's
consent.
(ii) Termination. The Plan shall terminate automatically on
the tenth anniversary of the Effective Date, and the Company may terminate the
Plan at any earlier time. Upon termination of the Plan, no additional Options
shall be granted; provided, however, that the terms of the Plan and Stock Option
Agreements shall continue in full force and effect with respect to outstanding
and unexercised Options and shares of Common Stock issued under the Plan.
(b) Options. Subject to the terms and conditions and the limitations
of the Plan, the Committee may in its sole discretion modify, extend or renew
outstanding Options or accept the surrender of outstanding Options (to the
extent not exercised) and authorize the granting of new Options in substitution
(to the extent not exercised). Notwithstanding the preceding sentence, no
modification of an Option shall, without the consent of the Optionee, impair any
rights or obligations under any Option previously granted.
13. Miscellaneous
(a) Employment. Neither the establishment of the Plan or any
amendments, nor the granting of any Options, shall in any way modify or affect,
or evidence any intention or understanding as to, the terms of employment of any
Optionee with the Company, or any
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Subsidiary or Parent, including the duration of such employment. No person shall
have a right to be granted Options or, having been granted Options, to be
selected again.
(b) Multiple Options. Subject to the terms and restrictions set
forth in the Plan, an Optionee may hold more than one Option.
(c) Written Notice. Any notices required under the Plan shall be in
writing and shall be given on the forms, if any, provided or specified by the
Committee. Written notice shall be effective upon actual receipt by the person
to whom such notice is to be given; provided, however, that in the case of
notices to Optionees and their assigns, heirs, legatees and legal
representatives, notice shall be effective upon delivery if delivered personally
or three business days after mailing, registered first class postage prepaid to
the last known address of the person to whom notice is given. Written notice
shall be given to the Committee and the Company at the following address or such
other address as may be specified from time to time:
Valley Commerce Bancorp
200 South Court Street
Visalia, California 93291
Attn: Chief Financial Officer
(d) Applicable Law; Severability. The Plan shall be governed by and
construed in all respects in accordance with the laws of the State of California
and, with respect to ISOs, shall be interpreted and administered in accordance
with Section 422 of the Code. If any provision regarding an ISO is susceptible
of more than one interpretation, it shall be interpreted in a manner consistent
with the Option being treated as an ISO for federal income tax purposes. If any
provisions of the Plan shall be held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions shall continue to be fully
effective.
(e) Withholding Taxes. At or after the time an Option is exercised,
in whole or in part, the Company may withhold from other payments due to
Optionee, and if the payments are not sufficient, upon request of the Company
the Optionee shall make adequate provision for federal and state income tax
withholding obligations, if any, of the Company, any Subsidiary or the Parent
which arise as a result of the exercise of the Option; provided, however, that
the Committee may permit an employee who exercises a NQSO to satisfy all or part
of his or her withholding tax obligations by having the Company withhold a
portion of the shares that otherwise would be issued to him or her upon exercise
of the NQSO.
(f) Financial Information for Optionees. Not less often than
annually, the Company shall provide each Optionee with a copy of the annual
financial statements of the Company.
* * *
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The undersigned, being the duly elected and acting Corporate Secretary of
the Company, hereby certifies that the foregoing Plan was adopted by the Board
of Directors of Bank of Visalia on February 18, 1997, approved by the
shareholders of Bank of Visalia in accordance with Section 11 of the Plan on
April 22, 1997, and amended and restated as the stock option plan of Valley
Commerce Bancorp on January __, 2003.
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VALLEY COMMERCE BANCORP
[Form of] INCENTIVE STOCK OPTION AGREEMENT
This Incentive Stock Option Agreement, dated the ___ day of
___________, ____, by and between Valley Commerce Bancorp (the "Company"), and
__________________________ ("Optionee");
WHEREAS, pursuant to the Amended and Restated 1997 Stock Option Plan
of the Company (the "Plan"), a copy of which is hereto attached, the Board of
Directors of the Company has authorized granting to Optionee an incentive stock
option to purchase all or any part of ________________________ (_______)
authorized but unissued shares of the Company's common stock for cash at the
price of __________________ Dollars and ___________ Cents ($_______.___) per
share, such option to be for the term and upon the terms and conditions
hereinafter stated;
NOW THEREFORE it is hereby agreed:
1. Grant of Option. Pursuant to said action of the Board of Directors and
pursuant to authorizations granted by all appropriate regulatory and
governmental agencies, the Company hereby grants to Optionee the option to
purchase, upon and subject to the terms and conditions of the Plan, which is
incorporated in full herein by this reference, all or any part of _____________
(______) shares of the Company's common stock (hereinafter called "stock") at
the price of __________________Dollars and ___________ Cents ($_______.___) per
share, which price is not less than 100 percent of the fair market value of a
share of the stock (or not less than the greater of $11 or 110 percent of the
fair market value per share for optionee-shareholders who possess more than 10
percent of the Company's stock) as of the date of action of the Board of
Directors granting this option.
2. Exercisability. This option shall be exercisable as to ________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
____________________. This option shall remain exercisable as to all of such
shares until _________ ____, _____ (but not later than ten years from the date
this option is granted) unless this option has expired or terminated earlier in
accordance with the provisions hereof. Shares as to which this option becomes
exercisable pursuant to the foregoing provision may be purchased at any time
prior to expiration of this option.
3. Exercise of Option. This option shall be exercised by written notice
delivered to the Company stating the number of shares with respect to which this
option is being exercised. Payment of the exercise price shall be made either
(i) in cash (including check, bank draft or money order), or (ii) with the
consent of the Company's Board of Directors, by delivering shares of common
stock already owned by Optionee valued at fair market value as of the closing
date, or (iii) by a combination of these forms of payment; provided, however,
that no common stock already owned by Optionee which is "statutory option stock"
as defined in Section 424(c)(3) of the Code may be delivered in payment of the
exercise price if the applicable holding period requirements for such common
stock under Section 422(a)(1) or 423(a)(1) of the Code have not been met at the
time of exercise. Not less than 10 shares may be purchased at any one time
unless the number purchased is the total number which may be purchased under
this option and in no event may the option be exercised with respect to
fractional shares. Upon exercise, Optionee shall make appropriate arrangements
and shall be responsible for the withholding of any federal and state taxes then
due.
4. Cessation of Employment. Except as provided in Paragraphs 2 and 5 hereof, if
Optionee shall cease to be employed by the Company or a subsidiary corporation
for any reason other than Optionee's death or disability (as defined in Section
22(e)(3) of the Internal Revenue Code of 1986, as amended from time to time),
this option shall expire 90 days thereafter. During the 90 day period this
option shall be exercisable only as to those installments, if any, which had
accrued as of the date when the Optionee ceased to be employed by the Company or
the subsidiary corporation.
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5. Termination of Employment for Cause. If Optionee's employment by the Company
or a subsidiary corporation is terminated for cause, this option shall expire
immediately, unless reinstated by the Board of Directors within 30 days of such
termination by giving written notice of such reinstatement to Optionee at his or
her last known address. In the event of such reinstatement, Optionee may
exercise this option only to such extent, for such time, and upon such terms and
conditions as if Optionee had ceased to be employed by the Company or a
subsidiary corporation upon the date of such termination for a reason other than
cause, death, or disability. Termination for cause shall include, but not be
limited to, termination for malfeasance or gross misfeasance in the performance
of duties or conviction of illegal activity in connection therewith.
6. Nontransferability: Death or Disability of Optionee. This option shall not be
transferable except by Will or by the laws of descent and distribution and shall
be exercisable during Optionee's lifetime only by Optionee. If Optionee dies
while employed by the Company or a subsidiary corporation, or during the 90 day
period referred to in Paragraph 4 hereof, this option shall expire one year
after the date of Optionee's death or on the day specified in Paragraph 2
hereof, whichever is earlier. After Optionee's death but before such expiration,
the persons to whom Optionee's rights under this option shall have passed by
Will or by the applicable laws of descent and distribution or the executor or
administrator of Optionee's estate shall have the right to exercise this option
as to those shares for which installments had accrued under Paragraph 2 hereof
as of the date on which Optionee ceased to be employed by the Company or a
subsidiary corporation.
If the Optionee shall terminate employment because of disability (as
defined in Section 22(e) (3) of the Internal Revenue Code of 1986, as amended
from time to time), the Optionee may exercise this option to the extent he or
she is entitled to do so at the date of termination, at any time within one year
of the date of termination, but in no event later than the expiration date in
Paragraph 2 hereof.
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7. Employment. This Agreement shall not obligate the Company or a subsidiary
corporation to employ Optionee for any period, nor shall it interfere in any way
with the right of the Company or a subsidiary corporation to reduce Optionee's
compensation.
8. Privileges of Stock Ownership. Optionee shall have no rights as a stockholder
with respect to the Company's stock subject to this option until the date of
issuance of stock certificates to Optionee. Except as provided in the Plan, no
adjustment will be made for dividends or other rights for which the record date
is prior to the date such stock certificates are issued.
9. Modification and Termination by Board of Directors. The rights of Optionee
hereunder are subject to modification and termination upon the occurrence of
certain events as provided in Section 12 of the Plan.
10. Compliance with Laws. No shares issuable upon the exercise of this option
shall be issued and delivered unless and until all applicable requirements of
California and federal law pertaining to the issuance and sale of such shares,
and all applicable listing requirements of the securities exchanges, if any, on
which shares of the Company of the same class are then listed shall have been
complied with.
11. Notices. Any notice to the Company provided for in this Agreement shall be
addressed to it in care of its President or Chief Financial Officer at its main
office and any notice to Optionee shall be addressed to Optionee's address on
file with the Company or a subsidiary corporation, or to such other address as
either may designate to the other in writing. Any notice shall be deemed to be
duly given if and when enclosed in a properly sealed envelope and addressed as
stated above and deposited, postage prepaid, with the United States Postal
Service. In lieu of giving notice by mail as aforesaid, any written notice under
this Agreement may be given to Optionee in person, and to the Company by
personal delivery to its President or Chief Financial Officer.
12. Incentive Stock Option. This Stock Option Agreement is intended to be an
Incentive Stock Option Agreement as defined in Section 422 of the Internal
Revenue Code of 1986, as amended from time to time. If for any reason this Stock
Option Agreement does not qualify as an Incentive Stock Option Agreement as
defined in Internal Revenue Code Section 422, then it shall be deemed to be a
Non-Qualified Stock Option Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
OPTIONEE VALLEY COMMERCE BANCORP
___________________________ By: __________________________
Signature of Optionee
Name: ________________________
Title: _______________________
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VALLEY COMMERCE BANCORP
[Form of] NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-qualified Stock Option Agreement, dated the _____ day of
____________, ____, by and between the Valley Commerce Bancorp (the "Company"),
and _____________________ ("Optionee");
WHEREAS, pursuant to the Amended and Restated 1997 Stock Option Plan
of the Company (the "Plan"), a copy of which is hereto attached, the Board of
Directors of the Company has authorized granting to Optionee a stock option to
purchase all or any part of _________________ (____) authorized but unissued
shares of the Company's common stock for cash at the price of __________Dollars
and ______ Cents ($____.__) per share, such option to be for the term and upon
the terms and conditions hereinafter stated;
NOW, THEREFORE, it is hereby agreed:
1. Grant of Option. Pursuant to said action of the Board of Directors and
pursuant to authorizations granted by all appropriate regulatory and
governmental agencies, the Company hereby grants to Optionee the option to
purchase, upon and subject to the terms and conditions of the Plan, which is
incorporated in full herein by this reference, all or any part of
_________________(____) shares of the Company's common stock (hereinafter called
"stock") at the price of ____________________ Dollars and _______ Cents
($____.__) per share, which price is not less than 100 percent of the fair
market value of a share of the stock as of the date of action of the Board of
Directors granting this option.
2. Exercisability. This option shall be exercisable ___________________
________________________________________________________________________________
_______________________________________________________________________________.
This option shall remain exercisable as to all of such shares until __________
__, ____ (but not after the expiration of ten years from the date this option is
granted) unless this option has expired earlier in accordance with the
provisions hereof. Shares as to which this option becomes exercisable pursuant
to the foregoing provision may be purchased at any time prior to expiration of
this option.
3. Exercise of Option. This option shall be exercised by written notice
delivered to the Company stating the number of shares with respect to which this
option is being exercised. Payment of the exercise price shall be made either
(i) in cash (including check, bank draft or money order), or (ii) with the
consent of the Company's Board of Directors, by delivering shares of common
stock already owned by Optionee valued at fair market value as of the closing
date, or (iii) by a combination of these forms of payment; provided, however,
that no common stock already owned by Optionee which is "statutory option stock"
as defined in Section 424(c)(3) of the Code may be delivered in payment of the
exercise price if the applicable holding period requirements for such common
stock under Sections 422(a)(1) or 423(a)(1) of the Code have not been met at the
time of exercise. Not less than 10 shares may be purchased at any one time
unless the number purchased is the total number which may be purchased under
this option and in no event may the option be exercised with respect to
fractional shares. Upon exercise, Optionee shall make appropriate arrangements
and shall be responsible for the withholding of any federal and state taxes then
due.
4. Cessation of Employment or Directorship. Except as provided in Paragraphs 2
and 5 hereof, and unless the Board (or the Personnel and Planning Committee, if
authorized) specifies a longer period, if Optionee shall cease to be employed or
cease to be a director of the Company or a subsidiary corporation for any reason
other than Optionee's death or disability, this option shall expire six months
thereafter. During six month period this option shall be exercisable only as to
those installments, if any, which had accrued as of the date when the Optionee
ceased to be employed by or ceased to be a director of the Company or the
subsidiary corporation.
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5. Termination of Employment or Directorship for Cause. If Optionee's employment
or directorship with the Company or a subsidiary corporation is terminated for
cause, this option shall expire immediately, unless reinstated by the Board of
Directors within 30 days of such termination by giving written notice of such
reinstatement to Optionee at his or her last known address. In the event of such
reinstatement, Optionee may exercise this option only to such extent, for such
time, and upon such terms and conditions as if Optionee had ceased to be
employed by or to be a director of the Company or a subsidiary corporation upon
the date of such termination for a reason other than cause, death, or
disability. Termination for cause shall include, but not be limited to,
termination for malfeasance or gross misfeasance in the performance of duties or
conviction of illegal activity in connection therewith.
6. Nontransferability; Death or Disability of Optionee. This option shall not be
transferable except (i) by Will or by the laws of descent and distribution, or
(ii) to a member of Optionee's immediate family, to a partnership the members of
which are all members of Optionee's immediate family, or to a family trust the
beneficiaries of which are all members of Optionee's immediate family, and shall
be exercisable during Optionee's lifetime only by Optionee. If Optionee dies
while employed by or while being a director of the Company or a subsidiary
corporation, or during the six month period referred to in Paragraph 4 hereof,
this option shall expire one year after the date of Optionee's death or on the
day specified in Paragraph 2 hereof, whichever is earlier. After Optionee's
death but before such expiration, the persons to whom Optionee's rights under
this option shall have passed by Will or by the applicable laws of descent and
distribution or the executor or administrator of Optionee's estate shall have
the right to exercise this option as to those shares for which installments had
accrued under Paragraph 2 hereof as of the date on which Optionee ceased to be
employed by or ceased to be a director of the Company or a subsidiary
corporation. If the Optionee terminates his or her employment or directorship
because of a disability, the Optionee may exercise this option to the extent he
or she is entitled to do so at the date of termination at any time within 1 year
of the date of termination, or before the expiration date specified in Paragraph
2 hereof, whichever is earlier.
7. Employment. This Agreement shall not obligate the Company or a subsidiary
corporation to employ Optionee for any period, nor shall it interfere in any way
with the right of the Company or a subsidiary corporation to reduce Optionee's
compensation.
8. Privileges of Stock Ownership. Optionee shall have no rights as a stockholder
with respect to the Company's stock subject to this option until the date of
issuance of stock certificates to Optionee. Except as provided in the Plan, no
adjustment will be made for dividends or other rights for which the record date
is prior to the date such stock certificates are issued.
9. Modification and Termination By Board of Directors. The rights of Optionee
hereunder are subject to modification and termination upon the occurrence of
certain events as provided in Section 12 of the Plan.
10. Compliance with Laws. No shares issuable upon the exercise of this option
shall be issued and delivered unless and until all applicable requirements of
California and federal law pertaining to the issuance and sale of such shares
and all applicable listing requirements of the securities exchanges, if any, on
which shares of the Company of the same class are then listed shall have been
complied with.
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11. Notices. Any notice to the Company provided for in this Agreement shall be
addressed to it in care of its President or Chief Financial Officer at its main
office and any notice to Optionee shall be addressed to Optionee's address on
file with the Company or a subsidiary corporation, or to such other address as
either may designate to the other in writing. Any notice shall be deemed to be
duly given if and when enclosed in a properly sealed envelope and addressed as
stated above and deposited, postage prepaid, with the United States Postal
Service. In lieu of giving notice by mail as aforesaid, any written notice under
this Agreement may be given to Optionee in person, and to the Company by
personal delivery to its President or Chief Financial Officer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
OPTIONEE VALLEY COMMERCE BANCORP
_______________________________ By: _____________________________
Signature of Optionee
Name: ___________________________
Title: __________________________
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