EXHIBIT 10.17(b)
TEMECULA VALLEY BANCORP INC.
2004 STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
This Option Agreement ("Option Agreement") is made and entered
into by and between Temecula Valley Bancorp Inc. ("Company") and _____________
("Optionee"), as of the ___ day of ______________ ("Date of Grant").
RECITALS
A. The Plan is intended to act as an incentive to retain directors,
officers, employees and consultants of the Company and its Affiliates and to
enhance the ability of the Company and its Affiliates to attract such people
whose services are considered unusually valuable by providing an opportunity to
have a proprietary interest in the success of the Company.
B. The Administrator under the Plan has approved the granting of
options to the Optionee pursuant to the Plan to provide an incentive to the
Optionee to focus on the long-term growth of the Company.
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, the Company and the Optionee
agree as follows:
1. Grant of Option. The Company hereby grants to the 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 8 of the Plan) of the Common Stock of the Company 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
Option Agreement is not intended to be an "incentive stock option" as set forth
in Section 422 of the Internal Revenue Code of 1986, as amended.
2. Vesting of Option. The Option shall vest and become
exercisable in accordance with the following schedule: The Option shall vest and
become exercisable in full on _____________.
3. Purchase Price. The price at which the Optionee shall be
entitled to purchase the Shares covered by the Option shall be $________ per
share.
4. Term of Option. The Option granted under this Option
Agreement shall expire, unless otherwise exercised, ten (10) years from the Date
of Grant, through and including the normal close of business of the Company on
_________ ("Expiration Date"), subject to earlier termination as provided in
paragraph 8 hereof.
1
5. Exercise of Option. The Option may be exercised by the
Optionee as to all or any part of the Shares then vested by delivery to the
Company 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 the Company of written notice, which notice shall be effective on
the date received by the Company. The notice shall state the 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 the Optionee. Such notice shall be signed by the 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,
such notice shall be signed by such other person or persons and shall be
accompanied by proof acceptable to the Company of the legal right of such person
or persons to exercise the Option. All Shares delivered by the Company 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 the Optionee in cash or such
other method permitted by the Administrator and communicated to the Optionee in
writing prior to the date the Optionee exercises all or any portion of the
Option.
8. Term of Options Upon Resignation or Termination.
(i) Termination of Service. Upon
termination of an Optionee's
Service, other than due to death, Disability, or Cause, the Optionee may
exercise his/her Option, but only on or prior to the date that is three months
following the Optionee's Termination Date, and only to the extent that the
Optionee was entitled to exercise such Option on the Termination Date (but in no
event later than the expiration of the term of such Option, as set forth in the
Notice of Stock Option Grant to the Option Agreement). If, after termination of
Service, the Optionee does not exercise his/her Option within the time specified
herein, the Option shall terminate.
(ii) Disability of Optionee. In the
event of termination of the
Optionee's Service due to his/her Disability, the Optionee may exercise his/her
Option, but only on or prior to the date that is twelve months following the
Termination Date, and only to the extent that the Optionee was entitled to
exercise such Option on the Termination Date (but in no event later than the
expiration date of the term of the Option, as set forth in Section 4 hereof).
If, after Termination of Service due to Disability, the Optionee does not
exercise the Option to the extent so entitled within the time specified herein,
the Option shall terminate.
2
(iii) Death of Optionee. In the
event that the Optionee should
die while in Service, the Optionee's Option may be exercised by the Optionee's
estate or by a person who has acquired the right to exercise the Option by
bequest or inheritance, but only on or prior to the date that is twelve months
following the date of death, and only to the extent that the Optionee was
entitled to exercise the Option at the date of death (but in no event later than
the expiration date of the term of his/her Option, as set forth in Section 4
hereof. If, after death, the Optionee's estate or a person who acquires the
right to exercise the Option by bequest or inheritance does not exercise the
Option within the time specified herein, the Option shall terminate.
(iv) Cause. In the event of
termination of Optionee's Service
due to Cause, the Optionee's Options shall terminate on the Termination Date.
Cause, as defined in the Plan, means the definition given under the Optionee's
employment agreement with the Company or Affiliate, or a policy of the Company
or an Affiliate. If the Optionee does not have an employment agreement or the
employment agreement does not define this term, or if the Company or an
Affiliate does not have a policy that defines this term, then Cause shall
include malfeasance or gross misfeasance in the performance of duties or
conviction of illegal activity in connection therewith or any conduct
detrimental to the interests of the Company or an Affiliate which results in
termination of the Optionee's Service with the Company or an Affiliate, as
determined by the Administrator.
9. Transferability. Options may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner other than by
will, by the laws of descent and distribution, by instrument to an inter vivos
or testamentary trust in which Options are to be passed to beneficiaries upon
the death of the trustor (settler) or by gift to Immediate Family.
10. Adjustments in Number of Shares and Option Price. In the
event of a stock dividend or in the event the Shares shall be changed into or
exchanged for a different number or class of shares of stock of the Company or
of another corporation, whether through reorganization, recapitalization, stock
split-up, combination of shares, merger or consolidation, there shall be
substituted for each such remaining Share then subject to this Option the number
and class of shares of stock into which each outstanding Share shall be so
exchanged, all without any change in the aggregate purchase price for the Shares
then subject to the Option, all as set forth in Section 8 of the Plan.
11. Delivery of Shares. No Shares 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 the Company; and (iv) if required by the Administrator, the
Optionee has delivered to the Administrator an Investment Letter in form and
content satisfactory to the Company as provided in paragraph 12 hereof.
3
12. Securities Act. The Company shall not be required to
deliver any Shares pursuant to the exercise of all or any part of the Option if,
in the opinion of counsel for the Company, such issuance would violate the
Securities Act of 1933 or any other applicable federal or state securities laws
or regulations. The Administrator may require that the Optionee, prior to the
issuance of any such Shares pursuant to exercise of the Option, sign and deliver
to the Company a written statement ("Investment Letter") stating (i) that the
Optionee is purchasing the Shares for investment and not with a view to the sale
or distribution thereof; (ii) that the Optionee will not sell any Shares
received upon exercise of the Option or any other shares of the Company that the
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 the
Company; and (iii) containing such other terms and conditions as counsel for the
Company 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 Administrator
in its sole discretion.
13. Federal and State Taxes. Upon exercise of the Option, or
any part thereof, the Optionee may incur certain liabilities for federal, state
or local taxes and the Company may be required by law to withhold such taxes for
payment to taxing authorities. Upon determination by the Company 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, the Optionee shall pay all
Federal state and local tax withholding requirements to the Company.
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 Option
Agreement, the Optionee acknowledges receipt of a copy of the Plan.
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 Administrator in accordance with the terms of
and as provided in the Plan. The Administrator shall have the sole and complete
discretion with respect to all matters reserved to it by the Plan and decisions
of the majority of the Administrator with respect thereto and to this Option
Agreement shall be final and binding upon the Optionee and the Company. 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 Directorship. This Option Agreement shall
not be construed to confer upon the Optionee any right to continue as a
director, officer, employee or consultant of the Company or any Affiliate.
17. Obligation to Exercise. The Optionee shall have no
obligation to exercise any Option granted by this Option Agreement.
18. Governing Law. This Option Agreement shall be interpreted
and administered under the laws of the State of California, applied without
regard to conflict of law principals.
19. Amendments. This Option Agreement may be amended only by a
written agreement executed by the Company and the Optionee. The Company and the
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
the Company or the Optionee. In any such event, the Company and the Optionee
agree that this Option Agreement may be amended as necessary to secure for the
Company and the Optionee any benefits that may result from such legislation. Any
such amendment shall be made only upon the mutual consent of the parties, which
consent (of either party) may be withheld for any reason.
4
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
duly executed by its officer thereunto duly authorized and the Optionee has
hereunto set his or her hand as of the date first written above.
TEMECULA VALLEY BANCORP INC.
By: _______________________________ ____________________________________
5
