The purpose of this 2003 Community Bancorp Inc. Stock
Option Plan (the “Plan”) is to advance the interests of the Company by providing select Participants with the opportunity to acquire Shares. By encouraging such stock ownership, the Company seeks to attract, retain and motivate the best
available personnel for positions of substantial responsibility and to provide additional incentive to Directors and Employees of the Company or any Affiliate to promote the success of the business.
As used herein, the following definitions shall apply:
(a) “Affiliate” shall mean any “parent corporation” or
“subsidiary corporation” of the Company, as such terms are defined in Section 424(e) and (f), respectively, of the Code, and any other subsidiary corporations of a parent corporation of the Company.
(b) “Agreement” shall mean a written agreement entered into in
accordance with Section 5(c).
(c) “Award” shall mean
an Option evidenced by a written agreement entered into in accordance with Section 5(c).
(d) “Bank” shall mean the Community National Bank.
(e) “Board” shall mean the Board of Directors of the Company.
(f) “Code” shall mean the Internal Revenue Code, as amended.
(g) “Committee” shall mean the Stock Option Committee appointed by the Board in accordance with Section 5(a)
(h) “Common Stock” shall mean the common
stock of the Company, par value $.625 each.
“Continuous Service” shall mean the absence of any interruption or termination of service as an Employee or Director of the Company or an Affiliate. Continuous Service shall not be considered interrupted in the case of sick leave, military
leave or any other leave of absence approved by the Company or an Affiliate.
(k) “Director” shall mean any member of the Board, and any member of the board of directors of
any Affiliate that the Board has by resolution designated as being eligible for participation in this Plan.
(l) “Non-Employee Director” shall mean any member of the Board who is a “non-employee director” within the meaning of Rule 16b-3.
(m) “Effective Date” shall mean the date specified
in Section 13 hereof.
(n) “Employee” shall mean any
person employed by the Company, the Bank or an Affiliate who is deemed an employee thereof for federal tax purposes.
(o) “Exercise Price” shall mean the price per Share at which an Option may be exercised.
(p) “ISO” means an option to purchase Common Stock which meets the
requirements set forth in the Plan, and which is intended to be and is identified as an “incentive stock option” within the meaning of Section 422 of the Code.
(q) “Market Value” shall mean the fair market value of the Common Stock, as determined under Section 7(b) hereof.
(r) “Non-ISO” means an option to purchase Common
Stock which meets the requirements set forth in the Plan but which is not intended to be and is not identified as an ISO.
(s) “Option” means an ISO and/or a Non-ISO.
(t) “Optioned Shares” shall mean Shares subject to an Award granted pursuant to this Plan.
(u) “Participant” shall mean any Employee and Director.
(w) “Rule 16b-3” shall mean Rule 16b-3
of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended.
(x) “Share” shall mean one share of Common Stock.
3. Term of the Plan and Awards.
(a) Term of the Plan. The Plan shall continue in effect for a term of 10 years from the Effective Date, unless sooner terminated pursuant to Section 15 hereof. No Award shall be granted under the Plan after the
expiration of its term.
(b) Term of Awards. The term of each
Award granted under the Plan shall be established by the Committee, but shall not exceed 10 years; provided, however, that in the case
of an Employee who owns Shares representing more than 10% of the outstanding Common Stock at the time an ISO is granted, the term of such ISO shall not
exceed five years.
4. Shares Subject to the Plan.
Except as otherwise required by the provisions of Section
10 hereof, the aggregate number of Shares deliverable pursuant to all Awards shall not exceed One Hundred Twenty-Five Thousand (125,000) Shares. Until issuance, such Shares will be deemed authorized but unissued Shares. If any Awards expire, become
unexercisable, or are forfeited for any reason, the Optioned Shares to which they apply shall be available for the grant of additional Awards under the Plan (unless the Plan has expired or been terminated).
5. Administration of the Plan.
(a) Composition of the Committee. The Plan shall be administered by
the Committee, which shall consist of not less than three (3) members of the Board who are Non-Employee Directors. Members of the Committee shall be appointed by, and serve at the pleasure of, the Board. The Committee shall be considered a committee
of the board under the Bylaws of the Company, and shall conduct its proceedings in compliance therewith.
(b) Powers of the Committee. Except as limited by the express provisions of the Plan or by resolutions adopted by the Board, the Committee shall
have sole and complete authority and discretion (i) to select Participants and grant Awards, (ii) to determine the form and content of Agreements under the Plan, (iii) to interpret the Plan, (iv) to prescribe, amend and rescind rules and regulations
relating to the Plan, (v) to make other determinations necessary or advisable for the administration of the Plan. The Committee shall have and may exercise such other power and authority as may be delegated to it by the Board from time to time. A
majority of the entire Committee shall constitute a quorum, and the action of a majority of the members present at any meeting at which a quorum is present, or acts approved in writing by a majority of the Committee without a meeting, shall be
deemed the action of the Committee.
(c) Agreement. Each
Award shall be evidenced by a written agreement containing such provisions, consistent with this Plan, as may be approved by the Committee. Each such Agreement shall constitute a binding contract between the Company and the Participant, and every
Participant, upon acceptance of such Agreement, shall be bound by the terms and restrictions of the Plan and of such Agreement. The terms of each such Agreement shall be in accordance with the Plan, and shall set forth (i) the Exercise Price of an
Option, (ii) the number of Shares subject to, and the expiration date of, the Award, (iii) the vesting schedule for Optioned Shares, (iv) the restrictions, if any, to be placed upon such Award, or upon Shares which may be issued upon exercise of
such Award, and (v) whether the Option is to be an ISO or a Non-ISO.
The Chairman of the Committee and such other Directors and officers as shall be designated by the Committee are hereby authorized to execute Agreements on behalf of the Company and to cause them to be delivered to the recipients of Awards.
(d) Effect of the Committee’s Decisions. All
decisions, determinations and interpretations of the Committee shall be final and conclusive on all persons affected thereby.
(e) Indemnification. In addition to such other rights of indemnification as they may have, the
members of the Committee shall be indemnified by the Company in connection with any claim, action, suit or proceeding relating to any action taken or failure to act under or in connection with the Plan or any Award granted hereunder, to the full
extent provided for under the Company’s governing instruments with respect to the indemnification of Directors.
6. Grant of Options.
(a) General Rule. Only key Employees (as determined by the Committee), and Directors shall be eligible to receive grants of Options pursuant to the
(b) Special Rules for ISOs. The aggregate Market
Value, as of the date the option is granted, of the Shares with respect to which ISOs are exercisable for the first time by an Employee during any calendar year, shall not exceed $100,000. Notwithstanding the foregoing, the Committee may grant
Options in excess of the foregoing limitations, in which case such Options granted in excess of such limitations shall be Non-ISOs.
(c) Delivery of Information. The Company shall deliver to each Participant the information and financial statements provided for in Rule 428(b) of
the Securities and Exchange Commission’s Regulation C and by Section 260.140.46 of the Rules of the California Corporations Commissioner, at the times required by such rules.
7. Exercise Price for Options.
(a) Limits on Committee Discretion. The Exercise Price as to any particular Option shall not be less than 100% of the
Market Value of the Optioned Shares on the date of grant, without taking into account any restrictions thereon. In the case of an Employee who owns Shares representing more than 10% of the Company’s outstanding Shares of Common Stock at the
time an ISO is granted, the Exercise Price under the ISO shall not be less than 110% of the Market Value of the Optioned Shares at the date the ISO is granted.
(b) Standards for Determining Market Value. If the Common Stock is listed on a national securities exchange (including the NASDAQ National
Market) on the date at which Market Value is to be determined, then the Market Value per Share will be the closing price on such exchange on such date, or if there were no sales on such date, then the average of the highest bid and lowest asked
price. If the Common Stock is traded on the NASDAQ OTC Bulletin Board, the Market Value per Share shall be the average of the highest bid and lowest asked price on such date, or, if there is no bid and asked price on such date, then on the next
prior business day on which there was a bid and asked price. If no such bid and asked price is available, then the Market Value per Share shall be the fair market value thereof as determined by the Committee, in its sole and absolute discretion.
8. Exercise of Options.
(a) Generally. Subject to subsection (e) below, any Option granted
hereunder shall be exercisable at such times and under such conditions as shall be permissible under the terms of
the Plan and of the Agreement granted to a Participant. An Option may not be exercised for a fractional Share. Except as otherwise specifically set forth
herein, an Option may be exercised only as to the portion thereof which is vested as of the time of exercise.
(b) Procedure for Exercise. A Participant may exercise an unexpired Option, subject to provisions relative to its termination and any applicable
limitations on its exercise set forth in the Agreement in which it is contained, only by (1) written notice of intent to exercise the Option with respect to a specified number of Shares, and (2) payment to the Company with delivery of such notice,
in cash (in the form of a certified or cashier’s check), in Common Stock or a combination of cash and Common Stock, of the amount of the Exercise Price for the number of Shares with respect to which the Option is then being exercised. Each such
notice shall be delivered, or mailed by prepaid registered or certified mail, addressed to the Chief Financial Officer of the Company at the Company’s executive offices. Common Stock utilized in full or partial payment of the Exercise Price for
Options shall be valued at its Market Value per Share at the date of exercise. Common Stock utilized in full or partial payment of the Exercise Price for Options must be held by the Participant for not less than six (6) months prior to the date the
Option is exercised.
(c) Period of Exercisability.
Except to the extent otherwise provided in more restrictive terms of an Agreement, the vested portion of an Option may be exercised: (i) by a Participant other than an Employee or Director at any time before it expires; or (ii) by an Employee or a
Director if he or she has either (A) maintained Continuous Service since the date of the grant of the Option, or (B) is exercising the Option within 90 days after termination of such Continuous Service (but not later than the date on which the
Option would otherwise expire), except as follows:
(1) If the
Employee’s or Director’s Continuous Service terminates for Just Cause, the Participant’s rights to exercise any Option shall expire on the date of termination. The term “Just Cause” shall mean any of the following: (i)
material dishonesty with respect to any aspect of the Company’s, the Bank’s or an Affiliate’s affairs or business), (ii) incompetence which actually results in substantial harm to the Company, the Bank or an Affiliate or which could
reasonably be expected to result in such harm, (iii) willful misconduct, (iv) breach of fiduciary duty involving personal profit, (v) intentional failure to perform stated duties, or (vi) willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or final court order.
(2) If the Employee’s or Director’s Continuous Service terminates by reason of his or her death, then the Option of the deceased Participant shall be exercisable only as to those Optioned Shares vested at the time of the
Participant’s death, and may be exercised with respect thereto within one year from the date of death (but not later than the date on which the Option would otherwise expire) by the Participant’s executor or administrator or the person or
persons to whom the Participant’s rights under such Option shall have passed by will or by laws of descent and distribution.
(3) If the Employee’s or Director’s Continuous Service terminates by reason of Permanent and Total Disability (as such term is defined in
Section 22(e)(3) of the Code), then the Option of the disabled Participant shall be exercisable only as to those Optioned Shares vested at the time of the participant’s Permanent and Total Disability, and may be exercised within one year from
the date of such Permanent and Total Disability, but not
later than the date on which the Option would otherwise expire.
(d) Effect of the Committee’s Decisions. The Committee’s determination whether a Participant’s Continuous Service has ceased, and
the effective date thereof, shall be final and conclusive on all persons affected thereby.
(e) Vesting. The vesting schedule for each Option shall be determined in the sole discretion of the Committee and shall be set forth in the Agreement. The vesting periods for Options need not be identical.
Vesting shall cease immediately when the Participant ceases for any reason to be an Employee or Director, as the case may be, of the Company or an Affiliate. If a Participant shall not in any given period exercise any part of an Option which has
become exercisable during that period, the Participant’s right to exercise such part of the Option shall continue until expiration of the Option.
9. Substitute Options.
Notwithstanding any other provisions of this Plan to the contrary, where the outstanding shares of another corporation are changed into or exchanged for
shares of Common Stock of the Company in a merger, consolidation, reorganization or similar transaction, then, subject to the approval of the Board, Options may be granted in exchange for unexercised, unexpired stock options of the other
corporation, and the exercise price of the Optioned Shares subject to any Option so granted may be fixed at a price less than one hundred percent of the Market Value of the Common Stock at the time such Option is granted if said Exercise Price has
been computed to be not less than the Exercise Price set forth in the stock option of the other corporation, with appropriate adjustment to reflect the exchange ratio of the shares of stock of the other corporation into the shares of Common Stock of
the Company. The number of shares of the options of the other corporation shall also be adjusted in accordance with the exchange ratio so that any substituted Option shall reflect such adjustment.
10. Effect of Changes in Common Stock Subject to the Plan.
(a) Recapitalizations, Stock Splits and Other Changes
to Capital. The number and kind of shares reserved for issuance under the Plan, and the number and kind of shares subject to outstanding Awards (and the Exercise Price thereof), shall be proportionately adjusted for any increase, decrease,
change or exchange of Shares for a different number or kind of shares or other securities of the Company which results from a merger, consolidation, recapitalization, reorganization, reclassification, stock dividend, stock split, combination of
shares, or similar event in which the number or kind of shares is changed without the receipt or payment of consideration by the Company.
(b) Transactions in which the Company Is Not the Surviving Entity. This Plan shall terminate on the effective date of any of the following
transactions: (i) the liquidation or dissolution of the Company, (ii) a merger or consolidation in which the Company is not the surviving entity, (iii) the sale or disposition of all or substantially all of the Company’s assets or (iv) a tender
offer or acquisition by one person or a group of persons acting in concert of more than 50% of the Company’s outstanding Shares (any of the foregoing to be referred to herein as a “Transaction”). No Awards may be made after the Board
of Directors has approved a
Transaction, unless the Transaction is cancelled or terminated before becoming effective, in which event the Plan shall not terminate, and Options not
exercised while the Transaction was pending shall resume the status they had prior to the announcement of the Transaction.
As soon as possible after the Board of Directors has approved a Transaction, the Committee shall notify each Participant thereof. Notice shall be deemed
given on the date it is personally delivered to the Participant, or on the third business day after it is mailed, with first-class postage prepaid, to the Participant’s last known address. Upon the giving of such notice, and notwithstanding the
provisions of Section 8(e), any Option shall become exercisable in full as to all remaining Shares. All Options not sooner exercised shall terminate at the close of business on the 30th day after such notice is given, unless provision is made in connection with the Transaction for assumption of outstanding Options or payment therefore, or
substitution for such Options of new options covering stock of a successor corporation, or of its parent or subsidiary, with appropriate adjustments as to number and kind of shares and prices. The Company shall have no obligation to make any such
provision. The provisions of this subsection (b) shall not apply if the Company is the surviving entity in any such Transaction.
(c) Special Rule for ISOs. Any adjustment made pursuant to subsections (a) or (b) hereof shall be made in such a manner as not to constitute a
modification, within the meaning of Section 424(h) of the Code, of outstanding ISOs.
(d) Conditions and Restrictions on New, Additional or Different Shares or Securities. If, by reason of any adjustment made pursuant to this Section 10, a Participant becomes entitled to new, additional or
different shares of stock or securities, such new, additional or different shares of stock or securities shall thereupon be subject to all of the conditions and restrictions which were applicable to the Shares pursuant to the Award before the
adjustment was made.
(e) Other Issuances. Except as
expressly provided in this Section 10, the issuance by the Company or an Affiliate of shares of stock of any class, or of securities convertible into Shares or securities of another class, for cash, property or any lawful consideration, either upon
direct sale or upon the exercise of rights or warrants to purchase the same, shall have no effect upon, and no adjustment shall be made with respect to, the number, class, Exercise Price or other characteristics of Shares then subject to Awards or
reserved for issuance under the Plan.
Non-Transferability of Awards.
Awards may not be
sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent and distribution, or pursuant to the terms of a “qualified domestic relations order” (within the meaning of
Section 414(p) of the Code and the regulations and rulings thereunder). An Award may be exercised only by a Participant, the Participant’s personal representative, heirs or a permitted transferee.
12. Time of Granting Awards.
The date of grant of an Award shall be the date on which the Committee makes
the determination to grant such Award.
13. Effective Date.
The Plan shall become effective immediately upon its approval by a favorable vote of stockholders owning at least a majority
of the Shares eligible to be cast at a meeting duly held in accordance with applicable laws.
14. Modification of Awards.
At any time, and from time to time, the Board may authorize the Committee to direct execution of an instrument providing for the modification of any outstanding Award, provided no such modification shall confer on the
holder of said Award any right or benefit which could not be conferred on him or her by the grant of a new Award at such time, or impair the Award without the consent of the holder of the Award.
15. Amendment and Termination of the Plan.
The Board may from time to time amend the terms of the Plan and, with
respect to any Shares at the time not subject to Awards, suspend or terminate the Plan.
Except for any changes that may be required to be made at the direction of the Department of Corporations in connection with a permit application under the California Corporate Securities Law or any changes required
for qualification, under the laws of Delaware, if applicable, shareholder approval must be obtained for any amendment of the Plan that would change the number of Shares subject to the Plan (except in accordance with Section 10 above), change the
category of persons eligible to be Participants, or increase the maximum term of the Options that may be granted under the Plan.
No amendment, suspension or termination of the Plan shall, without the consent of any affected Participant, alter or impair any rights or obligations
under any Award theretofore granted.
16. Conditions to
Issuance of Shares.
(a) Compliance with
Securities Laws. Shares of Common Stock shall not be issued with respect to any Award unless the issuance and delivery of such Shares complies with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the rules and regulations promulgated thereunder, any applicable state securities laws and regulations, and the requirements of any stock exchange upon which the Shares may then be listed.
(b) Special Circumstance. The inability of the Company to obtain
approval from any regulatory body or authority deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder shall relieve the Company of any liability arising out of
or in connection with its inability to issue or sell such Shares.
(c) Committee Discretion. The Committee shall have the discretionary authority to impose in Agreements such restrictions on Shares as it may deem
appropriate or desirable.
17. Reservation of Shares.
The Company, during the term of the Plan, shall reserve
and keep available a number of authorized and unissued Shares sufficient to satisfy the requirements of the Plan.
18. Withholding Tax.
The Company’s obligation to deliver Shares upon exercise of Options shall be subject to the Participant’s satisfaction of all applicable
federal, state and local income and employment tax withholding obligations. The Committee, in its discretion, may permit the Participant to satisfy the obligation, in whole or in part, by irrevocably electing to have the Company withhold Shares, or
to deliver to the Company Shares the Participant already owns, having a value equal to the amount required to be withheld. The value of Shares to be with withheld, or delivered to the Company, shall be based on the Market Value of the Shares on the
date the amount of tax to be withheld is to be determined. As an alternative, the Company may retain, or sell without notice, a number of such Shares sufficient to cover the amount required to be withheld.
19. No Employment or Other Rights.
In no event shall an Employee’s or Director’s eligibility to
participate or participation in the Plan create or be deemed to create any legal or equitable right of the Employee, Director, or any other party to continue service with the Company, the Bank, or any Affiliate of such corporations.
20. Governing Law.
The Plan shall be governed by and construed in accordance with the laws of
the State of California, except to the extent that federal law shall be deemed to apply.