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EXHIBIT 10.9
DATE OF GRANT: July 15, 1997
WESTERN SIERRA BANCORP
INCENTIVE STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THE WESTERN SIERRA BANCORP 1997 STOCK OPTION PLAN (THE "PLAN"),
INCORPORATED HEREIN. A COPY OF THE PLAN CAN BE OBTAINED FROM THE COMPANY UPON
REQUEST OF THE HOLDER HEREUNDER. THE GRANT OF THIS OPTION SHALL NOT IMPOSE AN
OBLIGATION UPON THE OPTIONEE TO EXERCISE THIS OPTION.
THIS AGREEMENT is made by and between Western Sierra Bancorp (the
"Company") and Xxxxxxxxx Xxxxx ("Optionee"), as of July 15, 1997.
In consideration of the mutual covenants contained herein and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionee, in the manner
and subject to the conditions hereinafter provided, the right, privilege and
option to purchase (the "Option") an aggregate of three thousand ( 3,000)
shares of the Company's Common Stock,(the "Shares"). This Option is specifically
conditioned on compliance with the terms and conditions set forth herein and in
the Plan.
2. TERM OF OPTION. Subject to the terms, conditions, and restrictions set
forth herein, the term of this Option shall be ten ( 10 ) years from the date of
grant (the "Expiration Date"). Any portion of this Option not exercised prior to
the Expiration Date shall thereupon become null and void.
3. EXERCISE OF OPTION.
3.1. VESTING OF OPTION. This Option shall become exercisable as
follows:
NUMBER OF SHARES VESTING DATE
600 IMMEDIATELY
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600 7-15-98
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600 7-15-99
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600 7-15-00
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600 7-15-01
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Each of the foregoing dates shall be referred to as a "Vesting Date" for that
portion of this Option vested on such date ("Vested Portion"). In the event of a
"Change in Control" as defined in the Plan, all outstanding Options shall fully
vest immediately upon the Company's public announcement of such change.
All or any portion of the shares underlying a Vested Portion of this
Option may be purchased during the term of this Option, but not as to less than
100 shares (unless the remaining shares then constituting the Vested Portion of
this Option is less than 100 shares) at any time.
3.2. MANNER OF EXERCISE. The Vested Portion of this Option may be
exercised from time to time, in whole or in part, by presentation of a Request
to Exercise Form, substantially in the form attached hereto, to the Company at
its principal office, which Form must be duly executed by Optionee and
accompanied by payment, in cash, to the Company, in the aggregate amount of the
Exercise Price (as defined below), multiplied by the number of Shares the
Optionee is purchasing at such time, subject to reduction for withholding for
tax obligations as provided in Section 13.
Upon receipt and acceptance by the Company of such Form accompanied by
the payment specified, the Optionee shall be deemed to be the record owner of
the Shares purchased, notwithstanding that the stock transfer books of the
Company may then be closed or that certificates representing the Shares
purchased under this Option may not then be actually delivered to the Optionee.
3.3. EXERCISE PRICE. The exercise price (the "Exercise Price")
payable upon exercise of this Option shall be $12.50 per Share.
4. EXERCISE AFTER CERTAIN EVENTS.
4.1. TERMINATION OF EMPLOYMENT OR DIRECTORSHIP. If for any reason
other than permanent and total disability (as defined below) or death an
Optionee ceases to be employed by or to be a director of the Company Options
held at the date of such termination (to the extent then exercisable) may be
exercised, in whole or in part, at any time within three (3) months after the
date of such termination or such lesser period specified in the Option Agreement
(but in no event after the expiration date of the Option).
4.2. PERMANENT DISABILITY AND DEATH. If an Optionee becomes
permanently and totally disabled (within the meaning of Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended), or dies while employed by the
Company, or while acting as an officer or director of the Company (or, if the
Optionee dies within the period that the Option remains exercisable after
termination of employment or affiliation), Options then held (to the extent then
exercisable) may be exercised by the Optionee, the Optionee's personal
representative, or by the person to whom the Option is transferred by will or
the laws of descent and distribution, in whole or in part, at any time within
one (1) year after the disability or death (but in no event after the expiration
date of the Option).
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5. RESTRICTIONS ON TRANSFER OF OPTION. This Option is not transferable by
Optionee other than by will or the laws of descent and distribution and is
exercisable only by the Optionee during his lifetime except as provided in
Section 4.2. above. In accordance with the Plan, the Option and the Shares
underlying the Option shall not be available for the debts or obligations of the
Optionee, nor shall it be subject to disposition by transfer, alienation,
pledge, or other means of disposition, whether voluntary or involuntary or by
operation of law through judgment, levy, attachment, garnishment, or other legal
proceeding (including bankruptcy).
6. ADJUSTMENT FOR CHANGES IN CAPITALIZATION. The existence of this Option
shall not affect the Company's right to effect adjustments, recapitalizations,
reorganizations, or other changes in its or any other corporation's capital
structure or business, any merger or consolidation, any issuance of bonds,
debentures, preferred or prior preference stock ahead of or affecting the
Shares, the dissolution or liquidation of the Company's or any other
corporation's assets or business or any other corporate act whether similar to
the events described above or otherwise. If the outstanding shares of the
Company's Common Stock are increased or decreased in number or changed into or
exchanged for a different number or kind of securities of the Company or any
other corporation by reason of a recapitalization, reclassification, stock
split, reverse stock split, combination of shares, stock dividend, or other
similar event, an appropriate adjustment of the number and kind of securities
with respect to which this Option may be exercised and the exercise price at
which this Option may be exercised will be made.
7. DISSOLUTION, LIQUIDATION, MERGER.
7.1. COMPANY NOT THE SURVIVOR. In the event of a dissolution or
liquidation of the Company, a merger, consolidation, combination, or
reorganization in which the Company is not the surviving, corporation, or a sale
of substantially all of the assets of the Company (as determined in the sole
discretion of the Administrator), and if the Optionee does not exercise the
entire Option within 90 days of such event, the Administrator and Optionee may
agree to (i) cancel each outstanding Option upon payment in cash to the Optionee
of the amount by which any cash and the fair market value of any other property
which the Optionee would have received as consideration for the shares of Stock
covered by the Option if the Option had been exercised before such liquidation,
dissolution, merger, consolidation, or sale exceeds the exercise price of the
Option, or (ii) assign the Option and all rights and Obligations under it to the
successor entity, with all such rights and obligations being assumed by the
successor entity.
7.2. COMPANY IS THE SURVIVOR. In the event of a merger,
consolidation, combination, or reorganization in which the Company is the
surviving corporation, the Administrator shall determine the appropriate
adjustment of the number and kind of securities with respect to which
outstanding Options may be exercised, and the exercise price at which
outstanding Options may be exercised. The Administrator shall determine, in its
sole and absolute discretion, when the Company shall be deemed to survive for
purposes of this Plan.
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8. RESERVATION OF SHARES. The Company agrees that prior to the earlier of
the expiration of this Option or the exercise and purchase of the total number
of Shares represented by this Option, there shall be reserved for issuance and
delivery upon exercise of this Option such number of the Company's authorized
and unissued Shares as shall be necessary to satisfy the terms and conditions of
this Agreement.
9. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any Shares covered by this Option unless the
Optionee shall have exercised this Option, and then only with respect to the
Shares underlying the portion of the Option exercised. The Optionee shall have
no right to vote any Shares, or to receive distributions of dividends or any
assets or proceeds from the sale of Company assets upon liquidation until
Optionee has effectively exercised this Option and fully paid for such Shares.
Subject to Section 6, no adjustment shall be made for dividends or other rights
for which the record date is prior to the date title to the Shares has been
acquired by the Optionee.
10. NO RIGHTS TO EMPLOYMENT OR CONTINUED EMPLOYMENT. The grant of this
Option shall in no way be construed so as to confer on Optionee the rights to
employment or continued employment by the Company. Nothing in the Plan or
hereunder shall confer upon any Optionee any right to employment or to continue
in the employ of the Company, or to interfere with or restrict in any way the
rights of the Company, which are hereby expressly reserved, to terminate or
discharge any Optionee at any time for any reason whatsoever, with or without
cause.
11. SUSPENSION AND TERMINATION. In the event the Board or the Administrator
reasonably believes that the Optionee has committed an act of misconduct
specified below, the Administrator may suspend the Optionee's right to exercise
any Option pending final determination by the Board or the Administrator, which
final determination shall be made within five (5) business days of such
suspension. If the Administrator determines that an Optionee has committed an
act of embezzlement, fraud, breach of fiduciary duty, or deliberate disregard of
the Company rules resulting in loss, damage, or injury to the Company, or if an
Optionee makes an unauthorized disclosure of any Company trade secret or
confidential information, engages in any conduct constituting unfair
competition, induces any Company customer to breach a contract with the Company,
or induces any principal for whom the Company acts as agent to terminate such
agency relationship, neither the Optionee nor his estate shall be entitled to
exercise any Option hereunder. In making such determination, the Board or the
Administrator shall act fairly and in good faith and shall give the Optionee an
opportunity to appear and present evidence on the Optionee's behalf.
12. PARTICIPATION IN OTHER OPTION PLANS. The grant of this Option shall not
prevent Optionee from participating or being granted other options in the same
or other plans provided that the Optionee meets the eligibility requirements,
and such participation or grant does not prevent the other plan from meeting the
requirements of the Internal Revenue Code of 1986, as amended.
13. PAYMENT OF TAXES. Unless the Administrator of the Plan permits
otherwise, the Optionee shall pay the Company in cash all local, state, and
federal withholding taxes applicable, in the
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Administrator's absolute discretion, to the grant or exercise of this Option, or
the transfer or other disposition of Shares acquired upon exercise of this
Option. Any such payment must be made promptly when the amount of such
obligation becomes determinable. The Administrator may, in lieu of such cash
payment, withhold that number of Shares sufficient to satisfy such withholding.
14. ISSUE AND TRANSFER TAX. The Company will pay all issuance taxes, if any,
attributable to the initial issuance of Shares upon the exercise of the Option;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue or
delivery of any certificates for Shares in a name other than that of the
Optionee.
15. ARBITRATION. Any controversy, dispute, or claim arising out of or
relating to this Option which cannot be amicably settled including, but not
limited to, the Suspension or termination of Optionee's right in accordance with
Section 11 above, shall be settled by arbitration. Said arbitration shall be
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association at a time and place within the above-referenced location
as selected by the arbitrator(s).
15.1. INITIATION OF ARBITRATION. After seven (7) days prior written
notice to the other, either party hereto may formally initiate arbitration under
this Agreement by filing a written request therefor, and paying the appropriate
filing fees, if any.
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15.2. HEARING AND DETERMINATION DATES. The hearing before the
arbitrator shall occur within thirty (30) days from the date the matter is
submitted to arbitration. Further, a determination by the arbitrator shall be
made within forty-five (45) days from the date the matter is submitted to
arbitration. Thereafter, the arbitrator shall have fifteen (15) days to provide
the parties with his or her decision in writing. However, any failure to meet
the deadlines in this section will not affect the validity of any decision or
award.
15.3. BINDING NATURE OF DECISION. The decision of the arbitrator shall
be binding on the parties. Judgment thereon shall be entered in a court of
competent jurisdiction.
15.4. INJUNCTIVE ACTIONS. Nothing herein contained shall bar the right
of either party to seek to obtain injunctive relief or other provisional
remedies against threatened or actual conduct that will cause loss or damages
under the usual equity rules including the applicable rules for obtaining
preliminary injunctions and other provisional remedies.
15.5. COSTS. The cost of arbitration, including the fees of the
arbitrator, shall initially be borne equally by the parties; provided, the
prevailing party shall be entitled to recover such costs, in addition to
attorneys' fees and other costs, in accordance with Section 18 of this
Agreement.
16. NOTICES. All notices to be given by either party to the other shall be
in writing and may be transmitted by personal delivery, facsimile transmission,
overnight courier or mail, registered or certified, postage prepaid with return
receipt requested; provided, however, that notices of change of address or telex
or facsimile number shall be effective only upon actual receipt by the other
party. Notices shall be delivered at the following addresses, unless changed as
provided for herein.
To the Optionee
Xxxxxxxxx Xxxxx
---------------------------------
0000 Xxxxxxxx Xx.
---------------------------------
Xxxxxxx Xxxx, XX 00000
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To the Company:
Western Sierra Bancorp
0000 Xxxxx Xxxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
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17. APPLICABLE LAW. This Option and the relationship of the parties in
connection with its subject matter shall be governed by, and construed under,
the laws of the state of California.
18. ATTORNEYS FEES. In the event of any litigation, arbitration, or other
proceeding arising out of this Option, the prevailing party shall be entitled to
an award of costs, including an award of reasonable attorneys' fees. Any
judgment, order, or award entered in any such proceeding shall designate a
specific sum as such an award of attorney's fees and costs incurred. This
attorneys' fee provision is intended to be severable from the other provisions
of this Agreement, shall survive any judgment or order entered in any
proceeding, and shall not be deemed merged into any such judgment or order, so
that such further fees and costs as may be incurred in the enforcement of an
award or judgment or in defending it on appeal shall likewise be recoverable by
further order of a court or panel or in a separate action as may be appropriate.
19. BINDING EFFECT. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, executors, and
successors.
20. TAX EFFECT. For the Options to receive possible treatment as incentive
stock options under the Internal Revenue Code, Internal Revenue Service Rules,
and Treasury Regulations governing incentive stock options, the Optionee must
meet certain holding period requirements as follows: the Optionee must (a) not
dispose of any Common Stock acquired upon exercise of this Option within two
years from the date of the grant hereby, and (b) not dispose of any Common Stock
acquired upon exercise of the Option within one year from the date of exercise.
The tax consequences to Optionee from the exercise of this Option and/or sale of
the underlying Common Stock is dependent on Optionee's circumstances, and the
applicable Internal Revenue Service Rules and Treasury Regulations then in
effect. The Company makes no representation with respect to tax consequences.
Each person should consult with his or her tax advisor before exercising any
Option or disposing of any Common Stock acquired upon the exercise of an Option.
21. COUNTERPARTS. This Option may be executed in one or more counterparts,
each of which when taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Option Agreement has been executed as of the
15th day of July, 1997, at Cameron Park, California.
THE COMPANY: WESTERN SIERRA BANCORP
By: /s/ XXXX X. XXXX
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Pres/CEO
OPTIONEE: /s/ XXXXXXXXX XXXXX
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REQUEST TO EXERCISE FORM
Dated:___________
The undersigned hereby irrevocably elects to exercise all or part, as
specified below, of the Vested Portion of the option ("Option") granted to him
pursuant to a certain stock option agreement ("Agreement") effective
________________________, between the undersigned and Western Sierra Bancorp
(the "Company") to purchase an aggregate of ________________________ (________)
shares of the Company's Common Stock, par value $_________ (the "Shares").
The undersigned hereby tenders cash in the amount of $__________ per
Share multiplied by _______________________ (___________) the number of Shares
he is purchasing at this time, for a total of which constitutes full payment of
the total Exercise Price thereof.
INSTRUCTIONS FOR REGISTRATION OF SHARES
IN THE COMPANY'S TRANSFER BOOKS
Name:______________________________________
(Please typewrite or print in block letters)
Address: ______________________________
______________________________
Signature: ______________________________
Accepted by Western Sierra Bancorp:
By: ______________________________
______________________________
Name
______________________________
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