Exhibit 99.2
GBC BANCORP
1999 EMPLOYEE STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
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This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between GBC Bancorp, a California
corporation (the "Company"), and the person named below ("Employee").
WHEREAS, Employee is an employee of the Company or one or more of its
subsidiaries; and
WHEREAS, pursuant to the Company's 1999 Employee Stock Incentive Plan
(the "Plan"), the Board of Directors of the Company, or the committee of the
Board of Directors administering the Plan (the "Committee"), has approved the
grant to Employee of an option to purchase shares of the common stock of the
Company (the "Common Stock"), on the terms and conditions set forth herein; and
WHEREAS, the amount of compensation the recipient of the Option (as
defined below) could receive hereunder is based solely on an increase in the
value of the stock of the Company after the date of the grant;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Grant of Option; Certain Terms and Conditions. The Company hereby
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grants to Employee, and Employee hereby accepts, as of the Date of Grant, an
option to purchase the number of shares of Common Stock indicated below (the
"Option Shares") at the Exercise Price per share indicated below, which option
shall expire at 5:00 p.m., California time, on the Expiration Date indicated
below and shall be subject to all of the terms and conditions set forth in this
Agreement (the "Option"). On each anniversary of the Date of Grant, the Option
shall become exercisable to purchase, and shall vest with respect to, that
number of Option Shares (rounded to the nearest whole
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share) equal to the total number of Option Shares multiplied by the Annual
Vesting Rate indicated below.
Employee: _____________________
Date of Grant: _____________________
Number of shares purchasable: _____________________
Exercise Price per share: _____________________
Expiration Date: _____________________
Annual Vesting Rate: ____________________%
The Option is intended to qualify as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended (an "Incentive Stock Option"),
and consequently:
(i) the Expiration Date shall not be more than ten years after
the Date of Grant and the Exercise Price per share shall not be less than
the Fair Market Value (as defined below) per share on the Date of Grant;
provided, however, that if, on the Date of Grant, Employee owns (after
application of the family and other attribution rules of Section 425(d) of
the Internal Revenue Code of 1986, as amended) more than 10% of the total
combined voting power of all classes of stock of the Company or of its
parent or subsidiary corporations, then the Expiration Date shall not be
more than five years after the Date of Grant and the Exercise Price per
share shall not be less than 110% of the Fair Market Value per share on the
Date of Grant; and
(ii) the aggregate Fair Market Value (determined as of the date
such options are granted) of the shares of Common Stock with respect to
which Incentive Stock Options are exercisable for the first time by
Employee during any calendar year (under the Plan and all other stock
option plans of the Company and its parent and subsidiary corporations)
shall not exceed $100,000.
2. Acceleration and Termination of Option.
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(a) Termination of Employment.
(i) Termination Within One Year After Change of Control. In
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the event that Employee shall cease to be an employee of the Company or any
of
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its subsidiaries (such event shall be referred to herein as the
"Termination" of Employee's "Employment") for any reason, or for no reason
(other than if Employee's Employment is Terminated as the result of
malfeasance or gross misfeasance in the performance of duties, or
conviction of illegal activity in connection therewith or conviction of a
felony), within one year after a Change of Control (as hereinafter
defined), then (A) the portion of the Option that has not vested on or
prior to the date of such Termination of Employment shall fully vest on
such date and (B) the Option shall terminate upon the earlier of the
Expiration Date or three months after the date of such Termination of
Employment. "Change of Control" shall mean the first to occur of the
following events:
(A) any date upon which the directors of the Company who were
last nominated by the Board of Directors (the "Board") for election as
directors cease to constitute a majority of the directors of the
Company;
(B) the date of the first public announcement that any person or
entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 50% or more of the voting power
of the Company (a "50% Stockholder"); provided, however, that the
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terms "person" and "entity," as used in this clause (B), shall not
include (1) the Company or any of its subsidiaries, (2) any employee
benefit plan of the Company or any of its subsidiaries, (3) any entity
holding voting securities of the Company for or pursuant to the terms
of any such plan, or (4) any person or entity who was a 50%
Stockholder on the date of adoption of the Plan by the Board; or
(C) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose
of which is to change the Company's domicile solely within the United
States) the consummation of which results in the outstanding
securities of any class then subject to the Option being exchanged for
or converted into cash, property or a different kind of securities;
provided, however, that a Change of Control shall not be deemed to
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occur if, as a result of such reorganization, merger or consolidation
of the Company, the securities of any class then subject to the Option
(the "Option Securities") are exchanged for or converted into
securities that represent the same beneficial ownership of the Company
and possess the same voting,
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liquidation and other rights to which the Option Securities were
entitled immediately prior to such reorganization, merger or
consolidation.
(ii) Retirement. If Employee's Employment is Terminated by
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reason of Employee's retirement in accordance with the Company's then
current retirement policy ("Retirement"), and a Change of Control shall not
have occurred within one year prior thereto, then (A) the portion of the
Option that has not vested on or prior to the date of such Retirement shall
terminate on such date and (B) the remaining vested portion of the Option
shall terminate on the earlier of the Expiration Date or the date three (3)
months after the date of such Termination of Employment.
(iii) Death or Permanent Disability. If Employee's
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Employment is Terminated by reason of the death or Permanent Disability (as
hereinafter defined) of Employee, and a Change of Control shall not have
occurred within one year prior thereto, then (A) the portion of the Option
that has not vested on or prior to the date of such Termination of
Employment shall terminate on such date and (B) the remaining vested
portion of the Option shall terminate upon the earlier of the Expiration
Date or the first anniversary of the date of such Termination of
Employment. "Permanent Disability" shall mean the inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous period of not
less than 12 months. Employee shall not be deemed to have a Permanent
Disability until proof of the existence thereof shall have been furnished
to the Committee in such form and manner, and at such times, as the
Committee may require. Any determination by the Committee that Employee
does or does not have a Permanent Disability shall be final and binding
upon the Company and Employee.
(iv) Cause. If Employee's Employment is Terminated for "Cause"
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(as hereinafter defined), and a Change of Control shall not have occurred
within one year prior thereto, then the Option shall terminate upon the
date of such Termination of Employment, unless such termination is waived
by the Committee. "Cause" shall include malfeasance or gross misfeasance in
the performance of duties, or conviction of illegal activity in connection
therewith, conviction for a felony or any conduct detrimental to the
interests of the Company or any of its subsidiaries, and the determination
of the Committee with respect thereto shall be final and conclusive.
(v) Other Termination. If Employee's Employment is Terminated
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for no reason, or for any reason other than Retirement, death, Permanent
Disability or Cause, and a Change of Control shall not have occurred within
one year prior
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thereto, then (A) the portion of the Option that has not vested on or prior
to the date of such Termination of Employment shall terminate on such date
and (B) the remaining vested portion of the Option shall terminate on the
earlier of the Expiration Date or the date three (3) months after the date
of such Termination of Employment.
(b) Death Following Termination of Employment. Notwithstanding
anything to the contrary contained in this Agreement, if Employee shall die at
any time after the Termination of his or her Employment and prior to the
Expiration Date, then (i) the portion of the Option that has not vested on or
prior to the date of such death shall terminate on such date and (ii) the
remaining vested portion of the Option shall terminate on the earlier of the
Expiration Date or the first anniversary of the date of such death.
(c) Other Events Causing Acceleration of Option. The Committee,
in its sole discretion, may accelerate the exercisability of the Option at any
time and for any reason.
(d) Other Events Causing Termination of Option. Notwithstanding
anything to the contrary contained in this Agreement, the Option shall terminate
upon the consummation of any of the following events, or, if later, the
thirtieth day following the first date upon which such event shall have been
approved by both the Board and the shareholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets
of the Company.
3. Adjustments. In the event that the outstanding securities of
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the class then subject to the Option are increased, decreased or exchanged for
or converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, or in the event that substantially all of the property and assets
of the Company are sold, then, unless such event shall cause the Option to
terminate pursuant to Section 2(d) hereof, the Committee shall make appropriate
and proportionate adjustments in the number and type of shares or other
securities or cash or other property that may thereafter be acquired upon the
exercise of the Option; provided, however, that any such adjustments in the
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Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
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4. Exercise.
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(a) The Option shall be exercisable during Employee's lifetime
only by Employee or by his or her guardian or legal representative, and after
Employee's death only by the person or entity entitled to do so under Employee's
last will and testament or applicable intestate law. The Option may only be
exercised by the delivery to the Company of a written notice of such exercise,
which notice shall specify the number of Option Shares to be purchased (the
"Purchased Shares") and the aggregate Exercise Price for such shares (the
"Exercise Notice"), together with payment in full of such aggregate Exercise
Price in cash or by check payable to the Company; provided, however, that
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payment of such aggregate Exercise Price may instead be made, in whole or in
part, by (i) the delivery to the Company of a certificate or certificates
representing shares of Common Stock, duly endorsed or accompanied by duly
executed stock powers, which delivery effectively transfers to the Company good
and valid title to such shares, free and clear of any pledge, commitment, lien,
claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value (as defined below) thereof on the date of such
exercise), provided that the Company is not then prohibited from purchasing or
acquiring such shares of Common Stock, or (ii) the Employee authorizing a third
party to sell a portion of the Purchased Shares and remitting to the Company a
sufficient portion of the sale proceeds to pay the entire Exercise Price and any
tax withholding resulting from such exercise.
(b) The "Fair Market Value" of a Common Share on any date (the
"Determination Date") shall be equal to the closing price per Common Share on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if no
closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share on the business day immediately preceding the
Determination Date in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use, or, if the Common Shares were not quoted by
any such organization on such immediately preceding business day, the average of
the closing bid and asked prices on such day as furnished by a professional
market maker making a market in the Common Shares selected by the Board.
5. Payment of Withholding Taxes. If the Company becomes obligated to
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withhold an amount on account of any tax imposed as a result of the exercise of
the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Employee shall, on the first day upon which the Company becomes
obligated to pay such amount to the
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appropriate taxing authority, pay such amount to the Company in cash or by check
payable to the Company. At the election of Employee and subject to such rules as
the Company may establish, such withholding obligations may be satisfied through
the surrender of Common Shares which Employee already owns or to which Employee
otherwise is entitled under the Plan.
6. Notices. All notices and other communications required or
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permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
000 Xxxx 0xx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Executive
Officer, or to Employee at the address set forth beneath his or her signature on
the signature page hereto, or at such other addresses as they may designate by
written notice in the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding
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anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (i) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (ii) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Transferability. Neither the Option nor any interest therein may
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be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution.
9. Plan. The Option is granted pursuant to the Plan, as in
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effect on the Date of Grant, and is subject to all the terms and conditions of
the Plan, as the same may be amended from time to time; provided, however, that
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no such amendment shall deprive Employee, without his or her consent, of the
Option or of any of Employee's rights under this Agreement. The interpretation
and construction by the Committee of the Plan, this Agreement, the Option and
such rules and regulations as may be adopted by the Committee for the purpose of
administering the Plan shall be final and binding upon Employee. Until the
Option shall expire, terminate or be exercised in full, the Company shall, upon
written request therefor, send a copy of the Plan, in its then-current form, to
Employee or any other person or entity then entitled to exercise the Option.
10. Shareholder Rights. No person or entity shall be entitled to vote,
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receive dividends or be deemed for any purpose the holder of any Option Shares
until the
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Option shall have been duly exercised to purchase such Option Shares in
accordance with the provisions of this Agreement.
11. Employment or Contract Rights. No provision of this Agreement or
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of the Option granted hereunder shall (i) confer upon Employee any right to
continue in the employ of or contract with the Company or any of its
subsidiaries, (ii) affect the right of the Company and each of its subsidiaries
to terminate the employment or contract of Employee, with or without cause, or
(iii) confer upon Employee any right to participate in any employee welfare or
benefit plan or other program of the Company or any of its subsidiaries other
than the Plan. Employee hereby acknowledges and agrees that the Company and each
of its subsidiaries may terminate the employment or contract of Employee at any
time and for any reason, or for no reason, unless Employee and the Company or
such subsidiary are parties to a written employment or independent contractor
agreement that expressly provides otherwise.
12. Governing Law. This Agreement and the Option granted hereunder
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shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
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IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement as of the Date of Xxxxx.
GBC BANCORP
By _______________________________
Authorized Representative
EMPLOYEE
__________________________________
Signature
__________________________________
Printed Name
__________________________________
Street Address
__________________________________
City, State and Zip Code
__________________________________
Social Security Number
