REVISED ASSUMPTION AGREEMENT BY AND BETWEEN CALIFORNIA
COMMUNITY BANCSHARES, INC. AND PLACER CAPITAL CO.
WHEREAS, California Community Bancshares, Inc. ("CCBI") desires to grant options
to directors, officers and employees of CCBI and of its subsidiaries Placer
Capital Co. ("PCC") and Placer Sierra Bank ("PSB") and of other affiliated
companies of CCBI and PCC; and
WHEREAS, CCBI has filed a registration statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission registering the grant of
options and the issuance of shares of CCBI common stock upon exercise of options
with the Securities and Exchange Commission which registration statement became
effective on December 9, 1999; and
WHEREAS, in addition to the Registration Statement it was also necessary for
CCBI to obtain a stock permit from the California Department of Corporations
(the "DOC"); and
WHEREAS, as it is presently the policy of the DOC that stock option plans cannot
contain a provision which allows for the acceleration of unvested options in the
event of a merger, acquisition or other change of control of the issuer as
defined by this agreement (a "Change of Control") to obtain a stock permit, it
is necessary to amend the CCBI stock option plan to eliminate the acceleration
of options upon a Change of Control;
WHEREAS, the DOC has indicated that they are in the process of re-evaluating
this policy; and
WHEREAS, CCBI has determined that in order to attract and retain qualified
directors, officers, and employees for CCBI and for its affiliates, it is in the
best interest of CCBI and its shareholders that the vesting of stock options
accelerate in the event of a Change of Control; and
WHEREAS, the stock option plan of PCC allows the grant of options to its
directors, officers and employees, as well as to the directors, officers and
employees of its affiliates; and
WHEREAS, the grant of stock options by PCC qualifies for the exemption from the
registration requirements of the SECURITIES EXCHANGE ACT OF 1933 and from the
qualification requirements of the DOC pursuant to SEC Rule 701 and Section
25102(o) of the CALIFORNIA CORPORATIONS CODE, respectively; and
WHEREAS, the PCC stock option plan allows for the acceleration of options in the
event of a Change of Control; and
WHEREAS, PCC has previously granted options to the directors, officers and
employees of PCC, PSB, and of other affiliates of CCBI; and
WHEREAS, CCBI and PCC have determined that it is in their respective best
interests and in the best interests and to the advantage of their respective
shareholders, for PCC to grant options to the directors, officers and employees
of CCBI and of PCC, PSB, of other affiliates of CCBI and PCC in consideration of
CCBI agreeing to assume such options upon the occurrence of such certain events
as set forth in this agreement.
NOW THEREFORE, in consideration of the mutual promises contained in this
agreement, CCBI and PCC hereby agree as follows:
1. PCC hereby agrees to grant options to directors, officers and employees
of CCBI and of PCC, PSB and other affiliates of PCC and CCBI and to take such
steps as are necessary to qualify such grants for the exemptions provided by SEC
Rule 701 and Section 25102(o) of the CALIFORNIA CORPORATIONS CODE;
2. CCBI hereby agrees as follows:
a) CCBI will, in the event the CCBI stock option plan does not at
that time contain such a provision, amend its stock option plan to provide for
the acceleration of stock options upon the Change of Control on the earlier of:
i) The reversal by the DOC of its nonacceleration policy; or
ii) CCBI becoming exempt from the qualification requirements
of the CALIFORNIA CORPORATIONS CODE by having registered its common stock on
NASDAQ's national market system.
b) Immediately after the occurrence of the earliest of the events
described in Section 2 (a) to this Agreement, CCBI will assume the stock options
previously granted by PCC as well as the options granted by PCC pursuant to this
agreement and provide new option agreements to the PCC optionees to purchase
shares of CCBI common stock pursuant to an appropriate conversion ratio.
c) In the event a proposed transaction constituting a Change of
Control of CCBI is presented to CCBI prior to the occurrence of the events
described Section 2 (a) and (b) of this Agreement, CCBI shall assure that such
transaction shall be expressly conditioned upon the acquiring party assuming all
of PCC'S outstanding options, including the acceleration of vesting.
3. For purposes of this agreement, a "Change of Control" shall mean:
a) the consummation of a plan of dissolution or liquidation of CCBI;
b) the consummation of a plan of reorganization, merger or
consolidation involving CCBI, except for a reorganization, merger or
consolidation where (A) the shareholders of CCBI immediately prior to such
reorganization, merger or consolidation own directly or indirectly at least 50%
of the combined voting power of the outstanding voting securities of the
corporation resulting from such reorganization, merger or consolidation (the
"Surviving Corporation") in substantially the same proportion as their ownership
of voting securities of CCBI immediately prior to such reorganization, merger or
consolidation and the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such
reorganization, merger or consolidation constitute at least 50% of the members
of the board of directors of the Surviving Corporation, or a corporation
beneficially directly or indirectly owning a majority of the voting securities
of the Surviving Corporation, or (C) CCBI is reorganized, merged or consolidated
with a corporation in which any shareholder
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owning at least 50% of the combined voting power of the outstanding voting
securities of CCBI immediately prior to such reorganization, merger or
consolidation, owns at least 50% of the combined voting power of the outstanding
voting securities of the corporation resulting from such reorganization, merger
or consolidation;
c) the sale of all or substantially all of the assets of CCBI to
another Person;
d) the acquisition of beneficial ownership of stock representing more
than fifty percent (50%) of the voting power of CCBI then outstanding by another
Person.
4. Further Actions. Each party agrees to perform any further acts and
execute and deliver any further documents reasonably necessary to carry out the
provisions of this Agreement.
5. Successors and Assigns. Except as explicitly provided herein to the
contrary, this Agreement shall be binding upon and inure to the benefit of the
parties, their respective successors and permitted assigns.
6. Severability. If any portion of this Agreement shall be held by a court
of competent jurisdiction to be invalid, void or otherwise unenforceable, the
remaining provisions shall remain enforceable to the fullest extent permitted by
law if enforcement would not frustrate the overall intent of the parties (as
such intent is manifested by all provisions of the Agreement, including such
invalid, void or otherwise unenforceable portion).
7. Time of Essence. Time is of the essence of each and every term,
condition, obligation and provision hereof.
8. Attorneys' Fees. If any legal action or any arbitration upon mutual
agreement is brought for the enforcement of this Agreement or because of an
alleged dispute, breach or default in connection with this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees and
other costs and expenses incurred in that action or proceeding, in addition to
any other relief to which it may be entitled.
9. Headings. The headings in this Agreement are inserted only as a matter
of convenience, and in no way define, limit, extend or interpret the scope of
this Agreement or of any particular provision hereof.
10. References. A reference to a particular Section of this Agreement shall
be deemed to include references to all subordinate sections, if any.
11. Counterparts. This Agreement may be signed in multiple counterparts
with the same force and effect as if all original signatures appeared on one
copy; and in the event this Agreement is signed in counterparts, each
counterpart shall be deemed an original and all of the counterparts shall be
deemed to be one agreement.
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12. Applicable Law. This Agreement shall be construed in accordance with,
and governed by, the laws of the State of California, except to the extent
preempted by the laws of the United States.
IN WITNESS WHEREOF, the parties hereto have caused this Revised Agreement
of Merger to be executed by their duly authorized officers this 4th day of
April, 2000.
CALIFORNIA COMMUNITY BANCSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
By: /s/ J. Xxxxxx Xxxxx
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J. Xxxxxx Xxxxx, Secretary
PLACER CAPITAL CO.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Xxxxxxx X. Xxxxxx, Xx.,
Chairman of the Board
By: /s/ J. Xxxxxx Xxxxx
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J. Xxxxxx Xxxxx, Assistant Secretary
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