EXHIBIT 10.2
PACIFIC MERCANTILE BANK
STOCK OPTION AGREEMENT
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Type of Option (check one): [_] Incentive [_] Nonqualified
This Stock Option Agreement (the "Agreement") is entered into as of
________________, 1999, by and between Pacific Mercantile Bank, a California
corporation (the "Company"), and ____________________ (the "Optionee") pursuant
to the Company's 1999 Stock Option Plan (the "Plan").
1. Grant of Option. The Company hereby grants to Optionee an option (the
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"Option") to purchase all or any portion of a total of ___________________
(________) shares (the "Shares") of the Common Stock of the Company at a
purchase price of _________________________ ($_______) per share (the "Exercise
Price"), subject to the terms and conditions set forth herein and the provisions
of the Plan. If the box marked "Incentive" above is checked, then this Option
is intended to qualify as an "incentive stock option" as defined in Section 422
of the Internal Revenue Code of l986, as amended (the "Code"). If this Option
fails in whole or in part to qualify as an incentive stock option, or if the box
marked "Nonqualified" is checked, then this Option shall to that extent
constitute a nonqualified stock option.
2. Vesting of Option. The right to exercise this Option shall vest in
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installments, and this Option shall be exercisable from time to time in whole or
in part as to any vested installment, as follows:
This Option shall be
On or After: Exercisable as to:
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[To be Determined at the time of Grant]
No additional shares shall vest after the date of termination of Optionee's
"Continuous Service" (as defined in Section 3 below), but this Option shall
continue to be exercisable in accordance with Section 3 hereof with respect to
that number of shares that have vested as of the date of termination of
Optionee's Continuous Service. If the Option is granted prior to the approval
of the Plan by the shareholders of the Company, then, notwithstanding anything
in this Agreement to the contrary, this Option shall not become exercisable
unless and until the Plan has been approved by the shareholders of the Company.
3. Term of Option. Optionee's right to exercise this Option shall
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terminate upon the first to occur of the following:
(a) the expiration of ten (10) years from the date of this Agreement;
(b) the expiration of three (3) months from the date of termination of
Optionee's Continuous Service if such termination occurs for any reason other
than permanent disability, death or voluntary resignation; provided, however,
that if Optionee dies during such three-month period the provisions of Section
3(e) below shall apply;
(c) the expiration of one (1) month from the date of termination of
Optionee's Continuous Service if such termination occurs due to voluntary
resignation; provided, however, that if Optionee dies during such one-month
period the provisions of Section 3(e) below shall apply;
(d) the expiration of one (1) year from the date of termination of
Optionee's Continuous Service if such termination is due to permanent disability
of the Optionee (as defined in Section 22(e)(3) of the Code);
(e) the expiration of one (1) year from the date of termination of
Optionee's Continuous Service if such termination is due to Optionee's death or
if death occurs during either the three-month or one-month period following
termination of Optionee's Continuous Service pursuant to Section 3(b) or 3(c)
above, as the case may be; or
(f) upon the consummation of a "Change in Control" (as defined in
Section 2.4 of the Plan), unless otherwise provided pursuant to Section 11
below.
As used herein, the term "Continuous Service" means (i) employment by either the
Company or any parent or subsidiary corporation of the Company, or by a
corporation or a parent or subsidiary of a corporation issuing or assuming a
stock option in a transaction to which Section 424(a) of the Code applies, which
is uninterrupted except for vacations, illness (except for permanent disability,
as defined in Section 22(e)(3) of the Code), or leaves of absence which are
approved in writing by the Company or any of such other employer corporations,
if applicable, (ii) service as a member of the Board of Directors of the Company
until Optionee resigns, is removed from office, or Optionee's term of office
expires and he or she is not reelected, or (iii) so long as Optionee is engaged
as a consultant or service provider to the Company or other corporation referred
to in clause (i) above.
4. Exercise of Option. On or after the vesting of any portion of this
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Option in accordance with Sections 2 or 11 hereof, and until termination of the
right to exercise this Option in accordance with Section 3 above, the portion of
this Option which has vested may be exercised in whole or in part by the
Optionee (or, after his or her death, by the person designated in Section 5
below) upon delivery of the following to the Company at its principal executive
offices:
(a) a written notice of exercise which identifies this Agreement and
states the number of Shares then being purchased (but no fractional Shares may
be purchased);
(b) a check or cash in the amount of the Exercise Price (or payment of
the Exercise Price in such other form of lawful consideration as the
Administrator may approve from time to time under the provisions of Section 5.3
of the Plan);
(c) a check or cash in the amount reasonably requested by the Company
to satisfy the Company's withholding obligations under federal, state or other
applicable tax laws with respect to the taxable income, if any, recognized by
the Optionee in connection with the exercise of this Option (unless the Company
and Optionee shall have made other arrangements for deductions or withholding
from Optionee's wages, bonus or other compensation payable to Optionee, or by
the withholding of Shares issuable upon exercise of this Option or the delivery
of Shares owned by the Optionee in accordance with Section 10.1 of the Plan,
provided such arrangements satisfy the requirements of applicable tax laws); and
5. Death of Optionee; No Assignment. The rights of the Optionee under
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this Agreement may not be assigned or transferred except by will or by the laws
of descent and distribution, and may be exercised during the lifetime of the
Optionee only by such Optionee. Any
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attempt to sell, pledge, assign, hypothecate, transfer or dispose of this Option
in contravention of this Agreement or the Plan shall be void and shall have no
effect. If the Optionee's Continuous Service terminates as a result of his or
her death, and provided Optionee's rights hereunder shall have vested pursuant
to Section 2 hereof, Optionee's legal representative, his or her legatee, or the
person who acquired the right to exercise this Option by reason of the death of
the Optionee (individually, a "Successor") shall succeed to the Optionee's
rights and obligations under this Agreement. After the death of the Optionee,
only a Successor may exercise this Option.
6. Receipt of Plan by Optionee. Optionee acknowledges receipt of a copy
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of the Plan and understands that all rights and obligations connected with this
Option are set forth in this Agreement and in the Plan.
7. Adjustments Upon Changes in Capital Structure. If the outstanding
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shares of Common Stock of the Company are hereafter increased or decreased or
changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of a stock split, combination of shares,
reclassification, stock dividend or other similar change in the capital
structure of the Company, then appropriate adjustment shall be made by the
Administrator to the number of Shares subject to the unexercised portion of this
Option and to the Exercise Price per share, in order to preserve, as nearly as
practical, but not to increase, the benefits of the Optionee under this Option,
in accordance with the provisions of Section 4.2 of the Plan.
8. Change in Control. In the event of a Change in Control (as defined in
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Section 2.4 of the Plan) of the Company, (i) the vesting of this Option pursuant
to Section 2 above shall automatically accelerate immediately prior to the
consummation of such Change in Control, and (ii) the Administrator in its
discretion may take one or more of the following actions: (A) provide for the
purchase or exchange of this Option for an amount of cash or other property
having a value equal to the difference, or spread, between (x) the value of the
cash or other property that the Optionee would have received pursuant to such
Change in Control transaction in exchange for the shares issuable upon exercise
of this Option had this Option been exercised immediately prior to such Change
in Control transaction and (y) the Exercise Price, (B) adjust the terms of this
Option in a manner determined by the Administrator to reflect the Change in
Control, (C) cause this Option to be assumed, or new rights substituted
therefor, by another entity, through the continuance of the Plan and the
assumption of this Option, or the substitution for this Option of a new option
of comparable value covering shares of a successor corporation, with appropriate
adjustments as to the number and kind of shares and Exercise Price, in which
event the Plan and this Option, or the new option substituted therefor, shall
continue in the manner and under the terms so provided, or (D) make such other
provision as the Administrator may consider equitable. If the Administrator
does not take any of the forgoing actions, this Option shall terminate upon the
consummation of the Change in Control and the Administrator shall cause written
notice of the proposed transaction to be given to the Optionee not less than
fifteen (15) days prior to the anticipated effective date of the proposed
transaction.
9. No Employment Contract Created. Neither the granting of this Option
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nor the exercise hereof shall be construed as granting to the Optionee any right
with respect to continuance of employment by the Company or any of its
subsidiaries. The right of the Company or any of its subsidiaries to terminate
at will the Optionee's employment at any time (whether by dismissal, discharge
or otherwise), with or without cause, is specifically reserved.
10. No Rights as Shareholder. The Optionee (or transferee of this option
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by will or by the laws of descent and distribution) shall have no rights as a
shareholder with respect to any Shares
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covered by this Option until the date of the issuance of a stock certificate or
certificates to him or her for such Shares, notwithstanding the exercise of this
Option.
11. "Market Stand-Off" Agreement. Optionee agrees that, if requested by
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the Company or the managing underwriter of any proposed public offering of the
Company's securities, Optionee will not sell or otherwise transfer or dispose of
any Shares held by Optionee without the prior written consent of the Company or
such underwriter, as the case may be, during such period of time, not to exceed
180 days following the effective date of the registration statement filed by the
Company with respect to such offering, as the Company or the underwriter may
specify.
12. Interpretation. This Option is granted pursuant to the terms of the
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Plan, and shall in all respects be interpreted in accordance therewith. The
Administrator shall interpret and construe this Option and the Plan, and any
action, decision, interpretation or determination made in good faith by the
Administrator shall be final and binding on the Company and the Optionee. As
used in this Agreement, the term "Administrator" shall refer to the committee of
the Board of Directors of the Company appointed to administer the Plan, and if
no such committee has been appointed, the term Administrator shall mean the
Board of Directors.
13. Notices. Any notice, demand or request required or permitted to be
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given under this Agreement shall be in writing and shall be deemed given when
delivered personally or three (3) days after being deposited in the United
States mail, as certified or registered mail, with postage prepaid, and
addressed, if to the Company, at its principal place of business, Attention:
the Chief Financial Officer, and if to the Optionee, at his or her most recent
address as shown in the employment or stock records of the Company.
14. Annual and Other Periodic Reports. During the term of this Agreement,
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the Company will furnish to the Optionee copies of all annual and other periodic
financial and informational reports that the Company distributes generally to
its shareholders.
15. Governing Law. The validity, construction, interpretation, and effect
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of this Option shall be governed by and determined in accordance with the laws
of the State of California.
16. Severability. Should any provision or portion of this Agreement be
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held to be unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding.
17. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall be deemed one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PACIFIC MERCANTILE BANK "OPTIONEE"
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(Signature)
Name:
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Title:
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(Type or print name)
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