THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT WITH RESPECT TO THEM UNDER THE ACT OR A WRITTEN OPINION OF COUNSEL FOR
THE HOLDER THEREOF, WHICH OPINION SHALL BE ACCEPTABLE TO DISCOVERY BANCORP, THAT
REGISTRATION IS NOT REQUIRED.
OPTIONEES TO WHOM INCENTIVE STOCK OPTIONS ARE GRANTED MUST MEET CERTAIN HOLDING
PERIOD AND EMPLOYMENT REQUIREMENTS FOR FAVORABLE TAX TREATMENT.
UNLESS OTHERWISE STATED, ALL TERMS DEFINED IN THE PLAN SHALL HAVE THE SAME
MEANING HEREIN AS SET FORTH IN THE PLAN.
DISCOVERY BANCORP
STOCK OPTION AGREEMENT
2004 STOCK OPTION PLAN
9 Incentive Stock Option
9 Non-Qualified Stock Option
THIS AGREEMENT, dated the day of __________, 20__, by and between
Discovery Bancorp, a California corporation (the "Corporation"), and ___________
("Optionee");
WHEREAS, pursuant to the Corporation's 2004 Stock Option Plan (the
"Plan"), the Stock Option Committee has authorized the grant to Optionee of a
Stock Option to purchase all or any part of ____________ (_____) authorized but
unissued shares of the Corporation's Common Stock, no par value, at the price of
_____________ Dollars ($____________) per share, such Stock Option to be for the
term and upon the terms and conditions hereinafter stated;
NOW, THEREFORE, it is hereby agreed:
1. Grant of Stock Option. Pursuant to said action of the Stock Option
Committee and pursuant to authorizations granted by all appropriate regulatory
and governmental agencies, the Corporation hereby grants to Optionee the option
to purchase, upon and subject to the terms and conditions of the Plan, which is
incorporated in full herein by this reference, all or any part of _____________
(_____) Option Shares of the Corporation's Common Stock at the price of Dollars
($_____) per share. For purposes of this Agreement and the Plan, the date of
grant shall be ______________. At the date of grant, Optionee does not own/owns
stock possessing more than 10% of the total combined voting power of all classes
of capital stock of the Corporation or any Subsidiary.
The Stock Option granted hereunder is/is not intended to qualify as an
Incentive Stock Option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended.
2. Exercisability. This Stock Option shall be exercisable as to _____
Option Shares on _____; as to _____ Option Shares on _____; as to _____ Option
Shares on _____; as to _____ Option Shares on _____; and as to _____ Option
Shares on _____. This Stock Option shall remain exercisable as to all of such
Option Shares until _________, 20_____ (but not later than ten (10) years from
the date hereof), at which time it shall expire in its entirety, unless this
Stock Option has expired or terminated earlier in accordance with the provisions
hereof or of the Plan. Option Shares as to which this Stock Option become
exercisable may be purchased at any time prior to expiration of this Stock
Option.
3. Exercise of Stock Option. Subject to the provision of Paragraph 4
hereof, this Stock Option may be exercised by written notice delivered to the
Corporation stating the number of Option Shares with respect to which this Stock
Option is being exercised, together with cash (or bank, cashier's or certified
check) and/or, if permitted at or before the time of exercise by the Stock
Option Committee, shares of Common Stock of the Corporation which when added to
the cash payment, if any, have an aggregate Fair Market Value equal to the full
amount of the purchase price of such Option Shares. Not less than ten (10)
Option Shares may be purchased at any one time unless the number purchased is
the total number which remains to be purchased under this Stock Option and in no
event may the Stock Option be exercised with respect to fractional shares. Upon
exercise, Optionee shall make appropriate arrangements and shall be responsible
for the withholding of all federal and state income taxes then due, if any.
4. Agreement and Representations of Optionee. Unless the shares of
Common Stock covered by this Stock Option have been registered with the
Securities and Exchange Commission pursuant to the registration requirements
under the Securities Act of 1933, Optionee shall: (i) by and upon accepting this
Stock Option, represent and agree in writing, in the form of the letter attached
hereto as Exhibit "A," for himself or herself and his or her transferees by will
or the laws of descent and distribution, that the Option Shares will be acquired
for investment purposes and not for resale or distribution; and (ii) by and upon
the exercise of this Stock Option, or a part hereof, furnish evidence
satisfactory to counsel for the Corporation, including written and signed
representations in the form of the letter attached hereto as Exhibit "B," to the
effect that the Option Shares are being acquired for investment purposes and not
for resale or distribution, and that the Option Shares being acquired shall not
be sold or otherwise transferred by the Optionee except in compliance with the
registration provisions under the Securities Act of 1933, as amended, or an
applicable exemption therefrom. Furthermore, the Corporation, at its sole
discretion, to assure itself that any sale or distribution by the Optionee
complies with the Plan and any applicable federal or state securities laws, may
take all reasonable steps, including placing stop transfer instructions with the
Corporation's transfer agent prohibiting transfers in violation of the Plan and
affixing the following legend (and/or such other legend or legends as the Stock
Option Committee shall require) on certificates evidencing the shares:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR OFFERED FOR SALE IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THEM
UNDER THE ACT OR A WRITTEN OPINION OF COUNSEL FOR THE HOLDER
THEREOF, WHICH OPINION SHALL BE ACCEPTABLE TO DISCOVERY BANCORP,
THAT REGISTRATION IS NOT REQUIRED."
2
At any time that Optionee contemplates the disposition of any of the Option
Shares (whether by sale, exchange, gift or other form of transfer), he or she
shall first notify the Corporation of such proposed disposition and shall
thereafter cooperate with the Corporation in complying with all applicable
requirements of law which, in the opinion of counsel for the Corporation, must
be satisfied prior to the making of such disposition. Before consummating such
disposition, Optionee shall provide to the Corporation an opinion of Optionee's
counsel, at the Corporation's expense, of which both such opinion and such
counsel shall be satisfactory to the Corporation, that such disposition will not
result in a violation of any state or federal securities laws or regulations.
The Corporation shall remove any legend affixed to certificates for Option
Shares if and when all of the restrictions on the transfer of the Option Shares,
whether imposed by the Plan or federal or state law, have terminated.
5. Prior Outstanding Stock Options. Pursuant to Section 8(b) of the
Plan, an Incentive Stock Option held by Optionee may be exercisable while the
Optionee has outstanding and unexercised any Incentive Stock Option previously
granted (or substituted) to him or her by the Corporation or a corporation which
(at the time of grant) is a parent or Subsidiary of the Corporation, or a
predecessor corporation of any such entity.
6. Cessation of Affiliation. Except as provided in Paragraph 7 hereof,
if, for any reason other than Optionee's disability or death, Optionee ceases to
be employed by or affiliated with the Corporation or a Subsidiary, this Stock
Option shall expire three (3) months thereafter or on the date specified in
Paragraph 2 hereof, whichever is earlier. During such period after cessation of
employment or affiliation, this Stock Option shall be exercisable only as to
those increments, if any, which had become exercisable as of the date on which
the Optionee ceased to be employed by or affiliated with the Corporation or
Subsidiary, and any Stock Options or increments which had not become exercisable
as of such date shall expire and terminate automatically on such date.
7. Termination for Cause. If Optionee's employment by or affiliation
with the Corporation or a Subsidiary is terminated for cause, this Stock Option
shall expire on the expiration dates specified for said Stock Options at the
time of their grant, or thirty (30) days after termination for cause, whichever
is earlier, unless reinstated by the Stock Option Committee within thirty (30)
days of such termination by giving written notice of such reinstatement to
Optionee. In the event of such reinstatement, Optionee may exercise this Stock
Option only to such extent, for such time, and upon such terms and conditions as
if Optionee had ceased to be employed by or affiliated with the Corporation or a
Subsidiary upon the date of such termination for a reason other than cause,
disability or death. For purposes of this Plan "cause" shall mean the Optionee's
malfeasance or gross misfeasance in the performance of his/her duties or his/her
conviction of illegal activity in connection therewith and, in any event, the
determination of the Stock Option Committee with respect thereto shall be final
and conclusive.
8. Disability or Death of Optionee. If Optionee becomes disabled or
dies while employed by or affiliated with the Corporation or a Subsidiary, or
during the three-month period referred to in Paragraph 6 hereof, this Stock
Option shall automatically expire and terminate one (1) year after the date of
Optionee's disability or death or on the day specified in Paragraph 2
3
hereof, whichever is earlier. After Optionee's disability or death but before
such expiration, the person or persons to whom Optionee's rights under this
Stock Option shall have passed by order of a court of competent jurisdiction or
by will or the applicable laws of descent and distribution, or the executor,
administrator or conservator of Optionee's estate, subject to the provisions of
Paragraph 14 hereof, shall have the right to exercise this Stock Option to the
extent that increments, if any, had become exercisable as of the date on which
Optionee ceased to be employed by or affiliated with the Corporation or a
Subsidiary. For purposes hereof, "disability" shall have the same meaning as set
forth in Section 14 of the Plan.
9. Nontransferability. This Stock 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.
10. Employment. This Agreement shall not obligate the Corporation or a
Subsidiary to employ Optionee for any period, nor shall it interfere in any way
with the right of the Corporation or a Subsidiary to increase or reduce
Optionee's compensation.
11. Privileges of Stock Ownership. Optionee shall have no rights as a
stockholder with respect to the Option Shares unless and until said Option
Shares are issued to Optionee as provided in the Plan. Except as provided in
Section 15 of the Plan, no adjustment will be made for dividends or other rights
in respect of which the record date is prior to the date such stock certificates
are issued.
12. Modification and Termination by Board of Directors. The rights of
Optionee are subject to modification and termination upon the occurrence of
certain events as provided in Sections 16 and 17 of the Plan.
13. Notification of Sale. Optionee agrees that Optionee, or any person
acquiring Option Shares upon exercise of this Stock Option, will notify the
Corporation in writing not more than five (5) days after any sale or other
disposition of such Shares.
14. Approvals. This Agreement and the issuance of Option Shares
hereunder are expressly subject to the approval of the Plan and the form of this
Agreement by the holders of not less than a majority of the voting stock of the
Corporation. This Stock Option may not be exercised unless and until all
applicable requirements of all regulatory agencies having jurisdiction with
respect thereto, and of the securities exchanges upon which securities of the
Corporation are listed, if any, have been complied with.
15. Notices. All notices to the Corporation provided for in this
Agreement shall be addressed to it in care of its Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer or Secretary at its main office and
all notices to Optionee shall be addressed to Optionee's address on file with
the Corporation or a Subsidiary, or to such other address as either may
designate to the other in writing, all in compliance with the notice provisions
set forth in Section 26 of the Plan.
16. Incorporation of Plan. All of the provisions of the Plan are
incorporated herein by reference as if set forth in full in this Agreement. In
the event of any conflict between the terms
4
of the Plan and any provision contained herein, the terms of the Plan shall be
controlling and the conflicting provisions contained herein shall be
disregarded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Discovery Bancorp Optionee
By: _______________________ ____________________________
Its:
By: _______________________
Its:
5
EXHIBIT "A"
____________ , 20____
Discovery Bancorp
1145 San Marino Drive, Suite 346
San Marcos, California 92069
Gentlemen:
On this ___ day of ________, 20___, the undersigned has received,
pursuant to the Discovery Bancorp 2004 Stock Option Plan (the "Plan") and the
Stock Option Agreement (the "Agreement") by and between Southwest Community
Bancorp (the "Corporation") and the undersigned, dated _________, 20___ an
option to purchase _________ shares of the common stock, no par value, of the
Corporation (the "Stock").
In consideration of the grant of such option by the Corporation:
1. I hereby represent and warrant to you that the Stock to be acquired
pursuant to the option will be acquired by me in good faith and for my own
personal account, and not with a view to distributing the Stock to others or
otherwise reselling the stock in violation of the Securities Act of 1933, as
amended, or the rules and regulations promulgated thereunder.
2. I hereby acknowledge and agree that: (a) the Stock to be acquired by me
pursuant to the Plan has not been registered and that there is no obligation on
the part of Corporation to register such Stock under the Securities Act of 1933,
as amended, and the rules and regulations thereunder; and (b) the Stock to be
acquired by me will not be freely tradeable unless the Stock is either
registered under the Securities Act of 1933, as amended, or the holder presents
a legal opinion acceptable to the Corporation that the transfer will not violate
the federal securities laws.
3. I understand that the Corporation is relying upon the truth and
accuracy of the representations and agreements contained herein in determining
to grant such options to me and upon subsequently issuing any Stock pursuant to
the Plan without the Corporation first registering the same under the Securities
Act of 1933, as amended.
4. I understand that the certificate evidencing the Stock to be issued
pursuant to the Plan will contain a legend upon the face thereof to the effect
that the Stock is not registered under the
Securities Act of 1933 and that stop transfer orders will be placed against the
shares with the Corporation's transfer agent.
5. In further consideration for the grant of an option to purchase Stock
of Corporation, the undersigned hereby agrees to indemnify you and hold you
harmless against all liability, cost, or expenses (including reasonable
attorney's fees) arising out of or as a result of any distribution or resale of
shares of Stock issued by the undersigned in violation of the securities laws.
The agreements contained herein shall inure to the benefit of and be binding
upon the respective legal representatives, successors and assigns of the
undersigned and the Corporation.
Very truly yours,
(Signature)
(Type or Print Name)
EXHIBIT "B"
___________, 20____
Discovery Bancorp
1145 San Marino Drive, Suite 346
San Marcos, California 92069
Gentlemen:
On this ___ day of _________, 20___, the undersigned has acquired,
pursuant to the Discovery Bancorp 2004 Stock Option Plan (the "Plan") and the
Stock Option Agreement (the "Agreement") by and between Southwest Community
Bancorp (the "Corporation") and the undersigned, dated ______, 20___,______
(______) shares of the Common Stock, no par value, of the Corporation (the
"Stock"). In consideration of the issuance by the Corporation to the undersigned
of said shares of its Common Stock:
1. I hereby represent and warrant to you that the Stock is being acquired
by me in good faith for my own personal account, and not with a view to
distributing the Stock to others or otherwise reselling the Stock in violation
of the Securities Act of 1933, as amended, or the rules and regulations
promulgated thereunder.
2. I hereby acknowledge and agree that: (a) the Stock being acquired by me
pursuant to the Plan has not been registered and that there is no obligation on
the part of the Corporation to register such Stock under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder; and (b)
the Stock being acquired by me is not freely tradeable and must be held by me
for investment purposes unless the Stock is either registered under the
Securities Act of 1933 or transferred pursuant to an exemption from such
registration, as accorded by the Securities Act of 1933 and under the rules and
regulations promulgated thereunder. I further represent and acknowledge that I
have been informed by legal counsel in connection with said Plan of the
restrictions on my ability to transfer the Stock and that I understand the scope
and effect of those restrictions.
3. I understand that the effects of the above representations are the
following: (i) that the undersigned does not presently intend to sell or
otherwise dispose of all or any part of the shares of the Stock to any person or
entity except in compliance with the terms described above, in the Plan and in
the Agreement; and (ii) that the Corporation is relying upon the truth and
accuracy of the representations and agreements contained herein in issuing said
shares of the Stock to me without first registering the same under the
Securities Act of 1933, as amended.
4. I hereby agree that the certificate evidencing the Stock may contain
the following legend stamped upon the face thereof to the effect that the Stock
is not registered under the Securities Act of 1933, as amended, and that the
Stock has been acquired pursuant to the representations and restrictions in this
letter, the Plan and in the Agreement:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO THEM UNDER THE ACT OR A WRITTEN
OPINION OF COUNSEL FOR THE HOLDER THEREOF, WHICH OPINION SHALL BE
ACCEPTABLE TO DISCOVERY BANCORP, THAT REGISTRATION IS NOT REQUIRED."
5. I hereby agree and understand that the Corporation will place a stop
transfer notice with its stock transfer agent to ensure that the restrictions on
transfer described herein will be observed.
6. In further consideration of the issuance of the Stock, the undersigned
does hereby agree to indemnify you and hold you harmless against all liability,
costs, or expenses (including reasonable attorney's fees) arising out of or as a
result of any distribution or resale by the undersigned of any of the Stock. The
Agreements contained herein shall inure to the benefit of and be binding upon
the respective legal representatives, successors and assigns of the undersigned
and the Corporation.
Very truly yours,
(Signature)
(Type or Print Your Name)