EXHIBIT 10.11(a)
TEMECULA VALLEY BANCORP INC.
1996 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN (EMPLOYEES)
INCENTIVE STOCK OPTION PLAN AGREEMENT
This Option Agreement is made and entered into by and between
TEMECULA VALLEY BANCORP INC. ("Bancorp")1 and _________________("Optionee"), as
of the 19th day of November, 2003(which date is hereinafter referred to as the
"Date of Grant").
RECITALS
A. Bancorp has assumed and its Board of Directors has adopted the
Temecula Valley Bank, National Association 1996 Incentive and Nonqualified Stock
Option Plan Agreement (the "Plan") to advance the interests of Bancorp its
shareholders by providing officers and other employees who have substantial
responsibility for the direction and management of Bancorp with an
entrepreneurial incentive to (a) provide high levels of performance, (b)
undertake extraordinary efforts to increase the earnings of Bancorp, (c)
increase their proprietary interest in Bancorp, and (d) remain in the employ of
Bancorp.
B. The Stock Option Committee established to administer the Plan (the
"Committee") has approved the granting of options to Optionee pursuant to the
Plan to provide an incentive to Optionee to focus on the long-term growth of
Bancorp.
In consideration of the mutual covenants and conditions
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Bancorp and Optionee agree as
follows:
1. Grant of Option. Bancorp hereby grants to Optionee the
right and option ("Option") to purchase an aggregate of _____ shares (such
number being subject to adjustment as provided in paragraph 10 hereof and
Section 10 of the Plan) of the Common Stock of Bancorp ("Stock") on the terms
and conditions herein set forth. This Option may be exercised in whole or in
part and from time to time as hereinafter provided. The Option granted under
this Agreement is intended to be an "Incentive Stock Option" as set forth in
Section 422 of the Internal Revenue Code of 1986 ("Code"), as amended.
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1 If Optionee is presently or subsequently becomes employed by a subsidiary of
Bancorp, the term "Bancorp" shall be deemed to refer collectively to Temecula
Valley Bancorp and the subsidiary or subsidiaries that employs Optionee.
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2. Vesting of Option. The Option shall vest and become
exercisable in accordance with the schedule below:
[generally, a 3 year vesting schedule with 1/3 of the grant
vesting every year]
3. Purchase Price. The price at which Optionee shall be
entitled to purchase the Stock covered by the Option shall be $________ per
share, which price is 100% of the Fair Market Value (as defined in the Plan) of
the Stock on the Date of Grant.
4. Term of Option. The Option granted under this Agreement
shall expire, unless otherwise exercised, ten (10) years from the Date of Grant,
through and including the normal close of business of Bancorp on
__________________("Expiration Date"), subject to earlier termination as
provided in paragraph 8 hereof.
5. Exercise of Option. The Option may be exercised by Optionee
as to all or any part of the Stock then vested by delivery to Bancorp of written
notice of exercise and payment of the purchase price as provided in paragraphs 6
and 7 hereof.
6. Method of Exercising Option. Subject to the terms and
conditions of this Option Agreement, the Option may be exercised by timely
delivery to Bancorp of written notice, which notice shall be effective on the
date received by Bancorp. The notice shall state Optionee's election to exercise
the Option, the number of shares in respect of which an election to exercise has
been made, the method of payment elected (see paragraph 7 hereof), the exact
name or names in which the shares will be registered and the Social Security
number of Optionee. Such notice shall be signed by Optionee and shall be
accompanied by payment of the purchase price of such shares. In the event the
Option shall be exercised by a person or persons other than Optionee pursuant to
paragraph 8 hereof, such notice shall be signed by such other person or persons
and shall be accompanied by proof acceptable to Bancorp of the legal right of
such person or persons to exercise the Option. All shares delivered by Bancorp
upon exercise of the Option shall be fully paid and nonassessable upon delivery.
7. Method of Payment for Options. Payment for shares purchased
upon the exercise of the Option shall be made by Optionee in cash or such other
method permitted by the Committee and communicated to Optionee in writing prior
to the date Optionee exercises all or any portion of the Option.
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8. Termination of Employment.
8.1. General. In the event that Optionee terminates
employment for any other
reason than for Cause (as such term is defined in the Plan) or voluntary
resignation (and there does not exist any agreement to remain in the employ of
Bancorp), then Optionee may at any time within ninety (90) days after the
effective date of termination of employment exercise the Option to the extent
that Optionee was entitled to exercise the Option at the date of termination,
provided that in no event shall the Option be exercisable after the Expiration
Date. If Optionee terminates employment for Cause or voluntary resignation of
any agreement to remain in the employ of Bancorp, the Option wholly and
completely terminates. In no event shall the Option, or any part thereof, be
exercisable after the Expiration Date.
8.2. Death or Disability of Optionee. In the event of
the death or "permanent and
total disability" (as that term is defined in the Plan; "Disability") of
Optionee within a period during which the Option, or any part thereof, could
have been exercised by Optionee, including ninety (90) days after termination of
employment other than for Cause or voluntary resignation of any agreement to
remain in the employ of Bancorp ("Option Period"), the Option shall lapse unless
it is exercised within the Option Period and in no event later than twelve (12)
months after the date of Optionee's death or Disability by Optionee or
Optionee's legal representative or representatives in the case of a Disability
or, in the case of death, by the person or persons entitled to do so under
Optionee's last will and testament or if Optionee fails to make a testamentary
disposition of such Option or shall die intestate, by the person or persons
entitled to receive such Option under the applicable laws of descent and
distribution. An Option may be exercised following the death or Disability of
Optionee only if the Option was exercisable by Optionee immediately prior to his
death or Disability. In no event shall the Option be exercisable after the
Expiration Date. The Committee shall have the right to require evidence
satisfactory to it of the rights of any person or persons seeking to exercise
the Option under this paragraph 8 to exercise the Option.
8.3. Change in Control. Upon the dissolution or
liquidation of Bancorp, or upon a
merger, consolidation or other reorganization whereupon Bancorp is not the
surviving corporation or Bancorp no longer owns at least 51% of the subsidiary
that employs Optionee (if applicable), all outstanding Options granted hereunder
shall for a 30 day period immediately prior to such dissolution, liquidation,
merger, consolidation or reorganization become exercisable in full, unless in
the event of a merger, consolidation or other reorganization, the relative
agreements with respect thereto provide for the assumption of such Option, in
which case the surviving corporation shall honor such Options in full.
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9. Nontransferability. The Option granted by this Option
Agreement shall be exercisable only during the term of the Option provided in
paragraph 4 hereof and, except as provided in paragraph 8 above, only by
Optionee during his or her lifetime and while an Optionee of Bancorp. This
Option shall not be transferable by Optionee or any other person claiming
through Optionee, either voluntarily or involuntarily, except by will or the
laws of descent and distribution or such other events as set forth in Section 8
of the Plan.
10. Adjustments in Number of Shares and Option Price. In the
event that additional shares of Stock are issued pursuant to a stock split,
stock dividend or other recapitalization resulting in combinations or exchanges
of shares or otherwise, the number of shares of Stock then covered by this
Option shall be increased proportionately with no increase in the total Option
price of the Stock then so covered but with a corresponding adjustment in the
price for each share subject to this Option. In the event that the shares of
Stock of the Bancorp from time to time issued and outstanding are reduced by a
combination of shares, the number of shares of Stock then covered by this Option
shall be reduced proportionately with no reduction in the total Option price of
the Stock then so covered but with a corresponding adjustment in the price for
each share subject to this Option.
11. Delivery of Shares. No shares of Stock shall be delivered
upon exercise of the Option until (i) the purchase price shall have been paid in
full in the manner herein provided; (ii) applicable taxes required to be
withheld have been paid or withheld in full; (iii) approval of any governmental
authority required in connection with the Option, or the issuance of shares
thereunder, has been received by Bancorp; and (iv) if required by the Committee,
Optionee has delivered to the Committee an Investment Letter, as defined below,
in form and content satisfactory to Bancorp as provided in paragraph 12 hereof.
12. Securities Act. Bancorp shall not be required to deliver
any shares of Stock pursuant to the exercise of all or any part of the Option
if, in the opinion of counsel for Bancorp, such issuance would violate the
Securities Act of 1933 or any other applicable federal or state securities laws
or regulations. The Committee may require that Optionee, prior to the issuance
of any such shares pursuant to exercise of the Option, sign and deliver to
Bancorp a written statement ("Investment Letter") stating (i) that Optionee is
purchasing the shares for investment and not with a view to the sale or
distribution thereof, (ii) that Optionee will not sell any shares received upon
exercise of the Option or any other shares of Bancorp that Optionee may then own
or thereafter acquire except either (a) through a broker on a national
securities exchange or (b) with the prior written approval of Bancorp; and (iii)
containing such other terms and conditions as counsel for Bancorp may reasonably
require to assure compliance with the Securities Act of 1933 or other applicable
federal or state securities laws and regulations. Such Investment Letter shall
be in form and content acceptable to the Committee in its sole discretion.
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13. Federal and State Taxes. Upon exercise of the Option, or
any part thereof, Optionee may incur certain liabilities for federal, state or
local taxes and Bancorp may be required by law to withhold such taxes for
payment to taxing authorities. Upon determination by Bancorp of the amount of
taxes required to be withheld, if any, with respect to the shares to be issued
pursuant to the exercise of the Option, Optionee shall pay all federal, state
and local tax withholding requirements to Bancorp.
14. Definitions; Copy of Plan. To the extent not specifically
provided herein, all capitalized terms used in this Option Agreement shall have
the same meanings ascribed to them in the Plan. By the execution of this
Agreement, Optionee acknowledges receipt of a copy of the Plan.
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15. Administration. This Option Agreement shall at all times
be subject to the terms and conditions of the Plan and the Plan shall in all
respects be administered by the Committee in accordance with the terms of and as
provided in the Plan. The Committee shall have the sole and complete discretion
with respect to all matters reserved by it by the Plan and decisions of the
majority of the Committee with respect thereto and to this Option Agreement
shall be final and binding upon Optionee and Bancorp. In the event of any
conflict between the terms and conditions of this Option Agreement and the Plan,
the provisions of the Plan shall control.
16. Continuation of Employment. This Option Agreement shall
not be construed to confer upon Optionee any right to continue in the employ of
Bancorp and shall not limit the right of Bancorp, in its sole discretion, to
terminate the employment of Optionee at any time.
17. Obligation to Exercise. Optionee shall have no obligation
to exercise all or any portion of the Option granted by this Agreement.
18. Governing Law. This Option Agreement shall be interpreted
and administered under the laws of the State of California.
19. Amendments. This Option Agreement may be amended only by a
written agreement executed by Bancorp and Optionee. Bancorp and Optionee
acknowledge that changes in federal tax laws enacted subsequent to the Date of
Grant, and applicable to stock options, may provide for tax benefits to Bancorp
or Optionee. In any such event, Bancorp and Optionee agree that this Option
Agreement may be amended as necessary to secure for Bancorp and Optionee any
benefits that may result from such legislation. Any such amendment shall be made
only upon the mutual consent of Bancorp and Optionee, which consent (of either
party) may be withheld for any reason.
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20. Tax Information and Notice of Disqualifying Disposition.
This Option is intended to be eligible for treatment as an Incentive Stock
Option under Section 422 of the Code. Whether this Option will receive such tax
treatment will depend, in part, on the actions by Optionee after exercise of
this Option. For example, if Optionee disposes of any of the Stock acquired
under this Option within two years after the Date of Grant or within one year of
the date of exercise of this Option, Optionee may lose the benefits of Code
Section 422. Accordingly, Bancorp makes no representations by way of the Plan,
this Agreement, or otherwise, with respect to the actual tax consequences of the
grant or exercise of this Option or the subsequent disposition of the Stock
acquired under this Option.
If Optionee sells or makes a disposition (within the meaning
of Section 422 of the Code) of any of the Stock acquired under this Option prior
to the later of (i) one year from the date of exercise of such Stock, or (ii)
two years from the Date of Grant, Optionee agrees to give written notice to
Bancorp of such disposition. The notice shall include Optionee's name, the
number, exercise price and exercise date of the shares of Stock disposed of, and
the date of disposition.
[Intentionally Blank]
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IN WITNESS WHEREOF, Bancorp has caused this Option Agreement
to be duly executed by a duly authorized director or officer and Optionee has
hereunto set his or her hand as of the date first written above.
TEMECULA VALLEY BANCORP INC.
By: ____________________________
OPTIONEE
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