EXHIBIT 4.1
CIVIC BANCORP
EMPLOYEE STOCK PURCHASE PLAN
As of October 1, 1999
ARTICLE 1 - PURPOSE OF THE PLAN
The Company has established this Plan to provide eligible employees of
the Company and its Subsidiaries a method to purchase shares of common stock of
the Company by payroll deduction at a discount. The Plan is intended to qualify
as an "employee stock purchase plan" under Section 423 of the Code and shall be
construed and operated consistently with the requirements of that Section.
ARTICLE 2 - DEFINITIONS
2.1 "Beneficiary" means the person designated by the Participant on a
form provided by and acceptable to the Committee to receive the Participant's
Payroll Deduction Account in the event of his death. In the absence of any such
designation, "Beneficiary" shall mean the Participant's estate.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
2.4 "Commencement Date" means the January 1 or July 1, as the case
may be, on which a particular Offering begins.
2.5 "Committee" means the committee of persons appointed by the
Company for the purpose of administering the Plan.
2.6 "Company" means, a California Civic BanCorp corporation.
2.7 "Designated Person" means the person designated by the Committee
to receive any forms or agreements required or permitted under the Plan. More
than one person may be designated by the Committee. Different persons may be
designated for different forms or agreements. The Designated Person may be an
individual or an entity. The Committee shall notify Participants in writing of
the identity of each Designated Person and the forms or agreements to be sent to
each such person.
2.8 "Effective Date" means October 1, 1999.
2.9 "Ending Date" means the June 30 or December 31, as the case may
be, on which a particular Offering concludes.
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2.10 "Enrollment Agreement" means the enrollment form acceptable to
the Committee that a Participant who wishes to participate in the Plan must
submit to the Designated Person prior to the Commencement Date.
2.11 "Offering" means each six (6) consecutive month offering period
for the purchase and sale of Shares under the Plan.
2.12 "Participant" means an employee who has satisfied the eligibility
requirements of Article 3 and who has complied with the requirements of Article
4.
2.13 "Pay" means and includes (i) a Participant's regular salary or
earnings; (ii) a Participant's overtime pay; and (iii) bonuses designated by the
Committee as being eligible to be used to purchase Shares under this Plan. "Pay"
shall not include any other compensation, taxable or otherwise including,
without limitation, employee tips, moving/relocation expenses, imputed income,
option income, tax-gross-ups and taxable benefits.
2.14 "Payroll Deduction Account" shall mean the Company's bookkeeping
entry that reflects the amount deducted from each Participant's Pay for the
purpose of purchasing Shares under the Plan, reduced by amounts refunded to the
Participant and amounts applied to purchase Shares hereunder. Amounts deducted
from each Participant's Pay may be commingled with the general funds of the
Company. No interest shall be paid or allowed on a Participant's payroll
deductions.
2.15 "Plan" means the CivicBank of Commerce Employee Stock Purchase
Plan.
2.16 "Purchase Price" means the price per Share as set forth in
Article 6 paid by a Participant to acquire Shares hereunder.
2.17 "Shares" means shares of the Company's common stock.
2.18 "Subsidiaries" shall mean any present or future domestic or
foreign corporation that would be a "subsidiary corporation" of the Company as
that term is defined in Section 424(f) of the Code.
2.19 "Withdrawal" means a Participant's election to withdraw from an
Offering pursuant to Article 11.
ARTICLE 3 - ELIGIBILITY
Any regular employee of the Company or any of its Subsidiaries shall
be eligible to participate in the Plan as of the Commencement Date coinciding
with or next following the completion of twelve (12) consecutive months of
employment following his date of hire. A regular employee is an individual who
works more than 20 hours a week for the Company or any of its Subsidiaries. For
the purpose of determining an employee's initial eligibility, an employee's
period of employment with any business entity, the assets, business or stock of
which has been acquired, in whole or in part by the Company or any of its
Subsidiaries through purchase, merger or otherwise ("Acquired Business"), shall
be taken into account. An
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employee's period of employment with the Company, any of its Subsidiaries, or
any Acquired Business prior to the Effective Date shall be taken into account.
If an employee terminates employment with the Company or any of its Subsidiaries
for any reason and is later rehired after thirty (30) days, such employee,
regardless of whether he is eligible to participate in the Plan prior to his
termination, shall be treated as a new employee and will be eligible to
participate in the Plan as of the Commencement Date coinciding with or next
following the completion of twelve (12) consecutive months of employment
following his date of rehire. For purposes of this Article, an employee's
employment with the Company or any of its Subsidiaries shall not be considered
interrupted or terminated in the case of a leave of absence or suspension,
provided that such leave is approved by the Company or the employee's
reemployment with the Company or any of its Subsidiaries upon the expiration of
such leave is guaranteed by contract or statute.
ARTICLE 4 - PARTICIPATION
An eligible employee may become a Participant by completing an
Enrollment Agreement provided by the Company and filing it with the Designated
Person prior to the deadline set by the Committee that precedes the Commencement
Date of the Offering to which it relates. Participation in one Offering under
the Plan shall neither limit, nor require, participation in any other Offering;
provided, however, that at the conclusion of each Offering, the Company shall
automatically re-enroll each Participant in the next Offering at the same rate
of payroll deduction, unless the Participant has advised the Designated Person
otherwise in a written form acceptable to the Committee.
ARTICLE 5 - OFFERINGS
The first Offering shall be for three (3) consecutive months
commencing on October 1, 1999. Each Offering thereafter shall be for six (6)
consecutive months, commencing on each subsequent January 1 and July 1, and
shall continue until the Plan is terminated in accordance with Section 15.5.
ARTICLE 6 - PURCHASE PRICE
The "Purchase Price" per Share to a Participant pursuant to an
Offering shall be 85% of the fair market value of such Share on a day within
five business days of the Ending Date of such Offering as selected by the
Committee. "Fair market value" for this purpose shall mean the closing price as
reported on the National Association of Securities Dealers Automated Quotation
National Market System (the "NASDAQ-NMS") or, if the Shares are not reported on
the NASDAQ-NMS, on the stock exchange, market, or system on which the Shares are
traded as reported that is designated by the Committee as controlling for
purposes of the Plan. In the event shares are not so traded or reported, no
purchase shall be made until a trade is reported on a successive business day.
ARTICLE 7 - LIMITATIONS ON SHARE OWNERSHIP
7.1 The maximum number of Shares that a Participant may acquire
during an Offering shall be the amount credited to such Participant's Payroll
Deduction Account as of the Ending Date of such Offering, divided by the
Purchase Price per Share.
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7.2 The maximum, aggregate number of Shares that will be offered
under the Plan is one hundred thousand (100,000). If, as of any Ending Date, the
total number of Shares to be purchased exceeds the number of Shares then
available under this Article (after deduction of all Shares that have been
previously purchased under the Plan), the Committee shall make a pro rata
allocation of the Shares that remain available in as nearly a uniform manner as
shall be practicable and as it shall determine, in its sole judgment, to be
equitable. In such event, any amount credited to each Participant's Payroll
Deduction Account that remains after purchase of such reduced number of Shares
shall be refunded as soon as reasonably practicable, and no further payroll
deductions or Offerings shall occur under this Plan unless and until additional
shares are authorized.
7.3 Notwithstanding anything herein to the contrary, the maximum
number of Shares that may be purchased by any Participant as of any Ending Date
shall be reduced to that number which, when the voting power or value thereof is
added to the total combined voting power or value of all classes of shares of
capital stock of the Company or its Subsidiaries the person is already deemed to
hold (excluding any number of Shares which such person would be entitled to
purchase under the Plan), is one share less than five percent (5%) of the total
combined voting power or value of all classes of shares of capital stock of the
Company or its Subsidiaries. For purposes of the foregoing, the rules of Section
424(d) of the Code shall apply. In addition, no Participant shall be allowed to
purchase Shares as of any Ending Date to the extent such purchase would cause
the sum of the fair market value of all Shares purchased by such Participant
under this Plan and any other plan qualified under Code Section 423 during the
calendar year during which such Ending Date occurs to exceed $10,000. For
purposes of the preceding sentence, "fair market value" shall be the value as of
the date of grant of each such Offering and the rules of Section 423(b)(8) of
the Code shall apply.
ARTICLE 8 - PAYROLL DEDUCTIONS
8.1 At the time the Enrollment Agreement is filed with the Designated
Person and for so long as a Participant participates in the Plan, each
Participant may authorize the Company to make payroll deductions of either (a) a
fixed dollar amount per pay period; or (b) a whole percentage (in 1% increments)
of Pay per pay period, provided, however, that no payroll deduction shall exceed
the lesser of $10,000 per year or 20% of Pay per pay period. The Committee, in
its discretion, may establish from time to time a minimum fixed dollar deduction
that a Participant must authorize under this Plan; provided, however, that a
Participant's existing rights under any Offering that has already commenced may
not be adversely affected thereby.
8.2 The amount of each Participant's payroll deductions shall be
credited to his Payroll Deduction Account. No interest or other amount shall be
credited to a Payroll Deduction Account.
8.3 Commencing with respect to the first payroll period beginning on
or after the Plan's Effective Date, a Participant's authorized payroll
deductions shall be deducted from each paycheck paid during an Offering and
shall continue until changed by the Participant or by amendment or termination
of this Plan. A Participant may elect to increase or decrease his authorized
payroll deductions effective as of January 1 or July 1 of each year upon prior
notice
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acceptable to the Company. Except for a Withdrawal and discontinuance of payroll
deductions permitted under this Plan, no change in payroll deductions may be
effective on a date other than January 1 or July 1, including without
limitation, any change in the amount or rate of payroll deductions during an
Offering.
8.4 With respect to each payroll period during an Offering, a
Participant's authorized payroll deductions shall be deducted from Pay only
after all other discretionary and nondiscretionary payroll deductions
attributable to such Participant have first been deducted from Pay for such
period. To the extent a Participant's Pay after such discretionary and
nondiscretionary payroll deductions have been deducted is less than the
Participant's authorized payroll deductions hereunder, the Participant's
remaining Pay, if any, shall be credited on his behalf to the Payroll Deduction
Account and the difference between the authorized and actual deduction shall be
disregarded and never deducted from payroll or credited to the Payroll Deduction
Account.
ARTICLE 9 - PURCHASE OF SHARES
9.1 As of the Ending Date of each Offering, each Participant shall be
deemed to have elected to purchase at the Purchase Price, the maximum number of
Shares that may be purchased with such Participant's Payroll Deduction Account
at the Purchase Price in accordance with the terms of this Plan, unless the
Designated Person has received timely and proper notice of a Withdrawal. The
Company or its Subsidiaries shall contribute the difference between the Purchase
Price to the Participant and the cost to acquire Shares on the open market. The
Shares purchased hereunder will be transferred to Participant in accordance with
Article 10. Any cash remaining in the Participant's Payroll Deduction Account
which is not applied toward the purchase of Shares shall be carried forward and
applied in subsequent Offerings. No Participant shall have any rights of a
shareholder with respect to any Shares until the Shares have been purchased in
accordance herewith. Shares purchased hereunder shall be Shares acquired on the
open market or, if expressly approved by the Board of Directors, newly issued
shares acquired from the Company.
9.2 Notwithstanding the preceding provisions of this Article or any
other provision to the contrary, no Shares shall be purchased hereunder until
the Plan is approved by the stockholders of the Company as provided in Section
15.1.
ARTICLE 10 - EVIDENCE OF OWNERSHIP OF SHARES
Following the Ending Date of each Offering, the Shares that are
purchased by each Participant shall be credited to an account with Chase Mellon
Shareholder Services established at Company's expense. This account will be
under the control of the Participant to hold, liquidate or transfer.
ARTICLE 11 - WITHDRAWAL
11.1 A Participant may "Withdraw" from an Offering, in whole but not
in part, by notifying the Designated Person, in writing on a form acceptable to
the Committee, in which
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event (i) the Participant's payroll deductions shall stop as soon as is
reasonably practicable following receipt of such notice by the Designated
Person, (ii) the Company shall refund the amount credited to the Participant's
Payroll Deduction Account as soon as reasonably practicable, and (iii) no Shares
shall be purchased on behalf of the Participant with respect to such Offering.
The notice described in this Section must be received by the Designated Person
prior to the deadline set by the Committee, provided that if the Committee fails
to set such a deadline, such notice must be received by the Ending Date (or the
immediately preceding business day if the Ending Date is not a business day).
11.2 An eligible employee who has previously withdrawn from the Plan
may re-enter by complying with the Participation requirements. Upon compliance
with such requirements, an employee's re-entry into the Plan will be effective
as of the Commencement Date coinciding with or next following the satisfaction
of such requirements.
11.3 A Participant hereunder may elect at any time on a form
acceptable to the Committee to have any whole Shares transferred to the
Participant's individual brokerage account established at the Participant's
expense.
ARTICLE 12 - RIGHTS NOT TRANSFERABLE
No Participant shall be permitted to sell, assign, transfer, pledge,
or otherwise dispose of or encumber such Participant's interest in the Payroll
Deduction Account or any rights to purchase or to receive Shares under the Plan
other than by will or the laws of descent and distribution, and such rights and
interests shall not be subject to, a Participant's debts, contracts, or
liabilities. If a Participant purports to make a transfer, or a third party
makes a claim in respect of a Participant's rights or interests, whether by
garnishment, levy, attachment or otherwise, such purported transfer or claim
shall be treated as a Withdrawal.
ARTICLE 13 - TERMINATION OF EMPLOYMENT
As soon as reasonably practicable following termination of a
Participant's employment with the Company or any of its Subsidiaries for any
reason whatsoever, including, but not limited to, by reason of death, disability
or retirement, the amount credited to the Payroll Deduction Account on behalf of
the Participant shall be returned to the Participant or the Participant's
Beneficiary, as the case may be, subject to Section 15.1.
ARTICLE 14 - ADMINISTRATION
The Plan shall be administered by the Committee, which may engage such
persons, entities or agents as it shall deem advisable to assist in the
administration of the Plan. The Company may from time to time appoint or dismiss
members of the Committee. A majority of the members of the Committee shall
constitute a quorum and the acts of a majority of the members present at a
meeting or the consent in writing signed by all the members of the Committee
shall constitute the acts of the Committee. The Committee shall be vested with
full authority to make, administer, and interpret such rules and regulations as
it deems necessary to administer the Plan, and any determination, decision, or
action of the Committee in connection
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with the construction, interpretation, administration or application of the Plan
shall be final, conclusive, and binding upon all parties, including the Company,
the Participants and any and all persons who claim rights or interests under or
through a Participant. The Committee may delegate all or part of its authority
to one or more of its members.
ARTICLE 15 - MISCELLANEOUS
15.1 Approval of the Plan. Notwithstanding any provision in this Plan
to the contrary, if the Plan is not approved by the stockholders of the Company
within twelve (12) months after the Effective Date of the Plan, the balance of
each Participant's Payroll Deduction Account shall be refunded in its entirety,
without interest, as soon as reasonably practicable. If an eligible employee
terminates employment after the Ending Date of any Offering but prior to the
approval of the Plan by the stockholders of the Company, then such employee may
elect in writing on a form acceptable to the Committee, which form must be
received by the Designated Person by the deadline set by the Committee, to have
the balance credited to the Payroll Deduction Account on his behalf as of any
such Ending Date retained and applied to purchase Shares following the
subsequent approval of the Plan by the stockholders of the Company, or returned
to the employee at a later date in the event the stockholders do not approve the
Plan. If such election is not timely made or if such employee elects to receive
cash, such employee shall receive the balance credited to the Payroll Deduction
Account on his behalf as of any such Ending Date as soon as reasonably
practicable after the passage of such deadline or making such election.
15.2 Amendment or Discontinuance of the Plan. The Board shall have the
right to amend, modify or terminate the Plan at any time without notice,
provided that (i) no Participant's existing rights under any Offering that is in
progress may be adversely affected thereby, and (ii) in the event that the Board
desires to retain the favorable tax treatment under Sections 421 and 423 of the
Code, no such amendment of the Plan shall increase the number of Shares that
were reserved for issuance hereunder unless the Company's shareholders approve
such an increase.
15.3 Changes in Capitalization. In the event of reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, offerings of rights, or any other change in the capital structure
of the Company, the number, kind and price of the Shares that are available for
purchase under the Plan and the number of Shares that an employee is entitled to
purchase shall be automatically adjusted to reflect the change in capital
structure; provided, however, that the Board shall retain the right to modify
any such adjustment in the manner it deems appropriate.
15.4 Notices. All notices or other communications by a Participant
under or in connection with the Plan, including but not limited to Enrollment
Agreements, shall be deemed to have been duly given when received by the
Designated Person in the form specified by the Committee.
15.5 Termination of the Plan. This Plan shall terminate at the
earliest of the following:
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(a) The date of the filing of a "Statement of Intent to
Dissolve" by the Company or the effective date of a merger or consolidation
wherein the Company is not to be the surviving corporation, which merger or
consolidation is not between or among corporations affiliated with the
Company;
(b) the date the Board acts to terminate the Plan; and
(c) the date when all of the Shares that were reserved for
issuance hereunder have been purchased.
Prior to termination of the Plan, the Company may change the Ending Date of a
pending Offering. Upon termination of the Plan, the Company shall refund to each
Participant the remaining amount credited to each Participant's Payroll
Deduction Account after all purchases have been made.
15.6 Notice of, and Limitations on Sale of Stock Purchased Under the
Plan. The Plan is intended to provide Shares for investment and not for resale.
The Company does not, however, intend to restrict or influence the conduct of
any employee's affairs beyond established Company policies. A current or former
Participant may, therefore, sell Shares that are purchased under the Plan at any
time at his expense, subject to compliance with any applicable federal or state
securities laws and Company policies. Each current and former Participant
assumes the risk of any market fluctuations in the price of the Shares. Each
current or former Participant must notify the Company of any disposition of
Shares purchased under this Plan that is described in Section 423(a)(1) of the
Code, which is any disposition within two years after the date of grant of the
option to purchase or any disposition within one year after the transfer of the
Shares to him.
15.7 Governmental Regulation. The Company's obligation to sell and
deliver Shares under this Plan is subject to any governmental approval that is
required in connection with the authorization, issuance or sale of such Shares.
15.8 No Employment Rights. This Plan does not, directly or
indirectly, create in any employee or class of employees any right with respect
to continuation of employment by the Company, and it shall not be deemed to
interfere in any way with the Company's right to terminate, or otherwise modify,
an employee's employment at any time.
15.9 Governing Law. The law of the state of California shall govern
all matters that relate to this Plan except to the extent it is superseded by
the laws of the United States.
15.10 Text of Plan Documents Controls. Titles of Articles and Sections
in this Plan are inserted for convenience of reference only and in the event of
any conflict, the text of this instrument, rather than such titles, shall
control.
15.11 Gender and Plurals. Any words herein used in the masculine shall
read and be construed in the feminine or the neuter wherever they would so
apply. Words in the singular shall be read and be construed as though used in
the plural in all cases where they would so apply.
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IN WITNESS WHEREOF, CivicBank of Commerce has caused this Plan to be
adopted effective as of October 1, 1999.
CIVICBANK OF COMMERCE
"Company"
By: /s/ Herbert C. Foster
Chairman and Chief Executive Officer
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