As filed with the Securities and Exchange Commission on October 5, 1998.
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
HUMBOLDT BANCORP
(Exact name of registrant as specified in its charter)
California 68-0183160
(State or other jurisdiction of incorporation (IRS Employer
or organization) Identification No.)
701 Fifth Street, Eureka, California 95501
(Address of Principal Executive Office) (Zip Code)
Amended Humboldt Bancorp Stock Option Plan
(Full title of the plans)
THEODORE S. MASON
Humboldt Bancorp
701 Fifth Street
Eureka, California 95501
(Name and address of agent for service)
(707) 445-3233
(Telephone number, including area code, of agent for service)
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following: |X|
<PAGE>2
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering aggregate registration
registered registered price per share offering price fee
- --------------------------------------------------------------------------------
Common Stock,
No Par Value 78,427 $28.50(1) $2,235,169.50 $659.38(2)
- --------------------------------------------------------------------------------
(1) Represents the highest current exercise price for options.
(2) Fee calculated pursuant to Rule 457(h)(1).
<PAGE>3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed by Humboldt Bancorp (the
"Company") pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") are incorporated by reference in this registration
statement.
1. The Company's annual report on Form 10-KSB for the fiscal year ended
December 31, 1997, as amended;
2. The Company's proxy statement for its annual meeting held on May 21,
1998;
3. The Company's quarterly report on Form 10QSB for the quarter ended March
31, 1998;
4. The Company's quarterly report on Form 10QSB for the quarter ended June
30, 1998; and
5. Form 10 originally filed with the Federal Reserve Board.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code provides for the
indemnification of officers and directors against expenses and judgments if the
officers and directors acted in good faith and in a manner reasonably believed
to be in the best interest of the corporation. The Articles of Incorporation and
the Bylaws of the registrant provide for the indemnification of its officers and
directors to the fullest extent authorized by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>4
Item 8. Exhibits.
Exhibit No.
5.1 Opinion of Bartel Eng Linn & Schroder, counsel to Humboldt.
10.12 Amended Humboldt Bancorp Stock Option Plan.
23.1 Consent of Richardson & Company, independent accountants.
23.2 Consent of Bartel Eng Linn & Schroder is contained in Exhibit 5.1.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Eureka, State of California, on August 31, 1998.
HUMBOLDT BANCORP,
a California corporation
By: THEODORE S. MASON
---------------------
Theodore S. Mason
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Date
THEODORE S. MASON August 31, 1998
- -------------------------------------
Theodore S. Mason, President,
Chief Executive Officer
ALAN J. SMYTH August 28, 1998
- --------------------------------------
Alan J. Smyth, Chief Financial Officer
(Principal Accounting and Financial Officer)
RONALD F. ANGELL September 17, 1998
- --------------------------------------
Ronald F. Angell, Director
MARGUERITE DALIANES September 17, 1998
- --------------------------------------
Marguerite Dalianes, Director
GARY L. EVANS September 3, 1998
- --------------------------------------
Gary L. Evans, Director
<PAGE>6
LAWRENCE FRANCESCONI September 17, 1998
- --------------------------------------
Lawrence Francesconi, Director
CLAYTON R. JANSSEN September 2, 1998
- --------------------------------------
Clayton R. Janssen, Director
JAMES O. JOHNSON September 17, 1998
- --------------------------------------
James O. Johnson, Director
JOHN McBETH September 3, 1998
- --------------------------------------
John McBeth, Director
MICHAEL L. RENNER September 17, 1998
- --------------------------------------
Michael L. Renner, Director
JERRY L. THOMAS September 17, 1998
- --------------------------------------
Jerry L. Thomas, Director
EDYTHE E. VAISSADE September 17, 1998
- --------------------------------------
Edythe E. Vaissade
- --------------------------------------
John R. Winzler, Director
9-30-98
Board of Directors
Humboldt Bancorp
701 Fifth Street
Eureka, California 95501
RE: Humboldt Bancorp
Registration Statement on Form S-8
Gentlemen:
We act as counsel to Humboldt Bancorp (the "Company"), a California
corporation, in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), of 78,427 shares of the Company's
Common Stock (the "Shares") which will be issued by the Company pursuant to an
increase in the number of options available pursuant to the Amended Humboldt
Bancorp Stock Option Plan.
For the purpose of rendering this opinion, we examined originals or
photostatic copies of such documents as we deemed to be relevant. In conducting
our examination, we assumed, without investigation, the genuineness of all
signatures, the correctness of all certificates, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies, and the accuracy and completeness
of all records made available to us by the Company. In addition, in rendering
this opinion, we assumed that the Shares will be offered in the manner and on
the terms identified or referred to in the Registration Statement, including all
amendments thereto.
Our opinion is limited solely to matters set forth herein. Attorneys
practicing in this firm are admitted to practice in the State of California and
we express no opinion as to the laws of any other jurisdiction other than the
laws of the State of California and the laws of the United States.
<PAGE>2
9-30-98
Page 2
Based upon and subject to the foregoing, after giving due regard to such
issues of law as we deemed relevant, and assuming that (i) the Registration
Statement becomes and remains effective, and (ii) all offers and sales of the
Shares will be made in compliance with the securities laws of the states having
jurisdiction thereof, we are of the opinion that the Shares to be issued
pursuant to the Plan upon receipt of adequate consideration will be legally
issued, fully paid and nonassessable.
We hereby consent in writing to the use of our opinion as an exhibit to
the Registration Statement and any amendment thereto. By giving such consent, we
do not thereby admit that we come within the category of persons where consent
is required under Section 7 of the Securities Act or the rules and regulations
of the Securities and Exchange Commission.
Very truly yours,
BARTEL ENG LINN & SCHRODER,
a Law Corporation
BARTEL ENG LINN & SCHRODER
**Approved by Board of Directors on February 25, 1998
Approved by the Shareholders on May 21, 1998
AMENDED HUMBOLDT BANCORP
STOCK OPTION PLAN
1. PURPOSE
The purpose of this Amended Humboldt Bancorp Stock Option Plan
(the "Plan") is to secure for Humboldt Bancorp and its stockholders the benefits
of the incentive inherent in the ownership of common stock ("Common Stock") of
Humboldt Bancorp by those key full-time employees, officers and directors of
Humboldt Bancorp and its subsidiaries (hereinafter collectively referred to as
"the Bancorp") who will share responsibility with management of the Bancorp for
its future growth.
The word "subsidiaries", as used in this Plan, means any bank or
corporation in an unbroken chain of banks or corporations beginning with the
Bancorp, if at the time of the granting of an option, each such bank or
corporation other than the last in that chain owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other banks or corporations in the chain.
2. ADMINISTRATION
The following provisions shall govern the administration of the
Plan:
(a) The Plan shall be administered by the Board of Directors, except
that the selection of officers and directors for participation in the Plan and
decisions concerning the timing, pricing and amount of all grants or awards of
options to such persons under the Plan shall be made solely by a committee of
the Board of Directors appointed for such purposes by the Board of Directors
(the "Committee") and composed of not less than three (3) directors, who shall
be "Disinterested Persons" as defined in Paragraph (c)(2)(i) of Rule 16b-3 of
the Securities Exchange Act of 1934. No member of the Committee shall be
eligible to receive, or shall have received for one year prior to the time such
person becomes a member of the Committee, options pursuant to this Plan except
pursuant to subsection (h) of Section 5 of the Plan. The Board of Directors may
from time to time remove members from or add eligible members to the Committee.
Vacancies on the Committee, howsoever caused, shall be filled by the Board of
Directors. The Board of Directors shall designate a Chairman and Vice-Chairman
of the Committee from among the Committee members. Acts of the Committee (i) at
a meeting, held at a time and place and in accordance with rules adopted by the
Committee, at which a quorum of the Committee is present and acting, or (ii)
reduced to and approved in writing by a majority of the members of the
Committee, shall be the valid acts of the Committee.
<PAGE>2
(b) The Bancorp shall effect the grant of options under the Plan
by execution of instruments in writing in a form approved by the Board of
Directors. Subject to the express terms and conditions of the Plan and the terms
of any option outstanding under the Plan, the Board of Directors or, to the
extent required pursuant to subsection (a) above, the Committee, shall have full
power to construe the Plan and the terms of any option granted under the Plan,
to prescribe, amend and rescind rules and regulations relating to the Plan or
such options and to make all other determinations necessary or advisable for the
Plan's administration, including, without limitation, the power to (i) determine
which persons meet the requirements of Section 3 hereof for selection as
participants in the Plan; (ii) determine to whom of the eligible persons, if
any, options shall be granted under the Plan; (iii) establish the terms and
conditions required or permitted to be included in every option agreement or any
amendments thereto, including whether options to be granted thereunder shall be
incentive stock options ("Incentive Stock Options"), as defined in Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"), or nonstatutory
stock options ("Nonstatutory Stock Options"); (iv) specify the number of Shares
to be covered by each option; (v) in the event a particular option is to be an
Incentive Stock Option, determine and incorporate such terms and provisions, as
well as amendments thereto, as shall be required in the judgment of the Board of
Directors or the Committee, so as to provide for or conform such option to any
change in any law, regulation, ruling or interpretation applicable thereto; and
(vi) to make all other determinations deemed necessary or advisable for
administering the Plan. The Board of Directors' or the Committee's determination
on the foregoing matters shall be conclusive.
(c) At the time of the grant of an option, the Board of Directors
or the Committee shall cause to be delivered to the Participant a copy of the
Participant's stock option agreement and a copy of the Plan.
3. PARTICIPANTS
Participants in the Plan (hereinafter the "Participants") shall
be those key full-time salaried employees ("employees") and key full-time
salaried officers ("officers") of the Bancorp to whom options may be granted
from time to time by the Board of Directors or the Committee. Directors shall be
eligible to participate in the Plan, subject to the specific limitations
provided in subsection (h) of Section 5.
4. THE SHARES
The shares subject to options authorized to be granted under the
Plan shall consist of 165,911 authorized shares of the Bancorp's no par value
Common Stock (hereinafter the "Shares"), or the number and kind of shares of
stock or other securities which shall be substituted for such Shares or to which
such Shares shall be adjusted as provided in Section 6 of the Plan. The Shares
subject to the Plan may be set aside out of the authorized but unissued shares
of Common Stock of the Bancorp not reserved for any other purpose or out of
shares of Common Stock subject to an option which, for any reason, terminates
unexercised as to the Shares.
<PAGE>3
5. GRANT, TERMS AND CONDITIONS OF OPTIONS
Options may be granted at any time prior to the termination of
the Plan to those key full-time salaried employees ("employees") and key
full-time salaried officers ("officers") of the Bancorp who, in the judgment of
the Board of Directors or the Committee, contribute to the successful conduct of
the Bancorp's operation through their judgment, interest, ability and special
efforts; provided, however, that: (i) an eligible officer or employee shall not
participate in the granting of his or her own option; (ii) the aggregate fair
market value (determined with respect to each Incentive Stock Option as of the
time such Incentive Stock Option is granted) of the capital stock with respect
to which Incentive Stock Options are exercisable for the first time by an
optionee during any calendar year (under this Plan or any other plan of the
Bancorp or affiliate) shall not exceed $100,000; (iii) except in the case of
termination by death or disability, as set forth in Section 5 (c) below, the
granted option must be exercised by optionee no later than three (3) months
after any termination of employment with the Bancorp and said employment must
have been continuous since the granting of the option; and (iv) the total number
of Shares subject to options granted to any one optionee, at any one time, shall
not exceed ten percent (10%) of the then issued and outstanding shares of Common
Stock of the Bancorp. In addition, options granted pursuant to the Plan shall be
subject to the following terms and conditions:
(a) Option Price. In the event of an Incentive Stock Option, the
purchase price under each option shall be not less than one hundred percent
(100%) of the fair market value of the Shares subject thereto on the date the
option is granted, as such value is determined by the Board of Directors or the
Committee. The fair market value of such stock shall be determined in accordance
with any reasonable valuation method, including the valuation methods described
in Treasury Regulation Section 20.2031-2. If, however, an employee owns stock of
the Bancorp possessing more than 10 percent (10%) of the total combined voting
power of all classes of stock of the Bancorp, the option price of any Incentive
Stock Option granted to such optionee shall be not less than 110 percent (110%)
of such fair market value at the time such option is granted. In the event of a
Nonstatutory Stock Option, the purchase price under each option shall be
determined by the Board of Directors or, to the extent required pursuant to
Section 2(a) above, the Committee.
(b) "Restricted Shares" and Duration of Options. The Board of
Directors or the Committee shall determine in its sole discretion the manner and
time of vesting of Shares underlying options granted, including acceleration of
vesting. Shares that are nonvested ("Restricted Shares") may only be transferred
or disposed of by will or the law of descent and distribution and are subject to
right of repurchase by Bancorp at their fair market value. Unrestricted Shares
are disposable in conformity with applicable law. For purposes of repurchase of
Shares, fair market value of the Shares shall mean for each Share the average of
the bid and ask price of Bancorp's common stock as of the date Bancorp decides
to repurchase the Shares, or in the event of a merger or reorganization as
provided in Section 6, the price per Share offered by the acquiring corporation.
No option shall remain outstanding ten (10) years from the date
the option is granted; provided however, that if an Incentive Stock Option is
granted and the holder owns more than ten percent (10%) of the total combined
voting power of all classes of stock of Bancorp, the option shall not remain
outstanding for more than five (5) years from the date the option is granted.
Options may be exercised from time to time by delivering payment therefor in
cash, certified check, official bank
<PAGE>4
check, or the equivalent thereof acceptable to the Bancorp, together with
written notice to the Secretary of the Bancorp, identifying the option or part
thereof being exercised and specifying the number of Shares for which payment is
being tendered. The Bancorp shall deliver to the optionee, which delivery shall
be not less than fifteen (15) days and not more than thirty (30) days after the
giving of such notice, without transfer or issue tax to the optionee (or other
person entitled to exercise the option), at the principal office of the Bancorp,
or such other place as shall be mutually acceptable, a certificate or
certificates for such Shares dated the date the options were validly exercised;
provided, however, that the time of such delivery may be postponed by the
Bancorp for such period as may be required for it with reasonable diligence to
comply with any requirements of law. If an option covers both Incentive and
Nonstatutory Stock Options, separate stock certificates and option agreements
will be issued; one or more for Incentive Stock Options and one or more for the
Nonstatutory Stock Options.
(c) Termination of Employment or Officer Status. Upon the
termination of an optionee's status as an employee or officer of the Bancorp,
his or her rights to exercise an option then held shall be only as follows:
DEATH OR DISABILITY: If an optionee's employment or status as an
officer is terminated by death or disability, such optionee or such optionee's
qualified representative (in the event of the optionee's mental disability) or
the optionee's estate (in the event of optionee's death) shall have the right
for a period of twelve (12) months following the date of such death or
disability to exercise the option to the extent the optionee was entitled to
exercise such option on the date of the optionee's death or disability, provided
the actual date of exercise is in no event after the expiration of the term of
the option.
An optionee's "estate" shall mean the optionee's legal
representative or any person who acquires the right to exercise an option by
reason of the optionee's death.
CAUSE: If an employee or officer is determined by the Board of
Directors to have committed an act of embezzlement, fraud, dishonesty, breach of
fiduciary duty to the Bancorp, or to have deliberately disregarded the rules of
the Bancorp which resulted in loss, damage or injury to the Bancorp, or if an
optionee makes any unauthorized disclosure of any of the secrets or confidential
information of the Bancorp, induces any client or customer of the Bancorp to
break any contract with the Bancorp or induces any principal for whom the
Bancorp acts as agent to terminate such agency relations, or engages in any
substantial conduct which constitutes unfair competition with the Bancorp, or if
an optionee is removed from any office of the Bancorp by the Federal Reserve
Board or any other bank regulatory agency, such optionee or optionee's estate
shall have a right for a period of thirty (30) days only to exercise any option
to the extent the optionee was entitled to exercise such option on the date of
the optionee's suspension or termination of employment or officer status,
provided the actual date of exercise is in no event after the expiration of the
term of the option. Such option is exercisable within thirty (30) days whether
or not after suspension or termination of employment or officer status the
optionee may receive payment from the Bancorp for vacation pay, for services
rendered prior to suspension or termination, for services for the day on which
either occurred, for salary in lieu of notice, or for other benefits. In making
its determination with respect to suspension or termination of employment or
officer status, such determination, the Board of Directors shall act fairly and
shall give the optionee an opportunity to appear and be heard at a
<PAGE>5
hearing before the full Board of Directors and present evidence on the
optionee's behalf. For the purpose of this paragraph, suspension or termination
of employment or officer status shall be deemed to occur when the Bancorp
dispatches notice or advice to the optionee that the optionee's employment or
status as an officer is terminated or suspended, and not at the time of
optionee's receipt thereof.
OTHER REASONS: If an optionee's employment or status as an officer is
terminated for any reason other than those mentioned above under "Death or
Disability" and "Cause," the optionee may, within three (3) months following
such termination, exercise the option to the extent such option was exercisable
by the optionee on the date of termination of the optionee's employment or
status as an officer, provided the actual date of exercise is in no event after
the expiration of the term of the option.
(d) Transferability of Option. Each option shall be transferable
only by will or the laws of descent and distribution and shall be exercisable
during the optionee's lifetime only by the optionee.
(e) Other Terms and Conditions. Options may also contain such
other provisions, which shall not be inconsistent with any of the foregoing
terms, as the Board of Directors or the Committee shall deem appropriate. No
option, however, nor anything contained in the Plan, shall confer upon any
optionee any right to continue in the employ or in the status as an officer of
the Bancorp, nor limit in any way the right of the Bancorp to terminate an
optionee's employment of status as an officer at any time.
(f) Use of Proceeds from Stock. Proceeds from the sale of Shares
pursuant to the exercise of options granted under the Plan shall constitute
general funds of the Bancorp.
(g) Rights as a Shareholder. The optionee shall have no rights as
a shareholder with respect to any Shares until the date of issuance of a stock
certificate for such Shares. No adjustment shall be made for dividends or other
rights for which the record date is prior to the date of such issuance, except
as provided in Section 6 hereof.
(h) Directors' Options. Notwithstanding anything to the contrary
in other provisions of the Plan, each director of the Bancorp (excluding
emeritus directors) who is not a full-time salaried employee or full-time
salaried officer of the Bancorp, shall be eligible to participate in the Plan
only in accordance with this subsection. Options granted to such directors are
subject to the following additional terms and conditions: (i) of the number of
issued and outstanding shares of the Bancorp's common stock set forth in Section
4, no more than 98,654 Shares may be issued and sold under the Plan to directors
of the Bancorp pursuant to this subsection or the number and kind of shares of
stock or other securities which shall be substituted for such shares or to which
such shares shall be adjusted as provided in Section 6 of the Plan; (ii) all
grants to directors shall be Nonstatutory Stock Options; (iii) the expiration
date of the options granted to directors under the Plan shall not exceed 10
years from the date of grant; and (iv) each director, upon joining the Board of
Directors and upon completion of each full year of service on the Board of
Directors as of December 31 of each year, shall be granted an option to purchase
1,000 Shares at a price equal to 100% of the fair market value of the Shares at
the time of grant, or such number or kind of shares of stock or other securities
which
<PAGE>6
shall be substituted for such number of Shares or into which such number of
Shares shall be adjusted as provided in Section 6 of the Plan. A former Director
who resigns or retires from the Board may exercise his/her options at any time
during the option term. A Director's estate (in the event of a Director's death)
shall have the right for a period of twelve (12) months following the date of
such death to exercise the option to the extent the optionee was entitled to
exercise the option on the date of optionee's death, provided the actual date of
exercise is in no event after the expiration of the term of the option. No
additional formula options may be awarded to former Directors.
6. ADJUSTMENT OF AND CHANGES IN THE SHARES
In the event the shares of Common Stock of the Bancorp, as
presently constituted, shall be changed into or exchanged for a different number
or kind of shares of stock or other securities of the Bancorp or of another
corporation (whether by reason of reorganization , merger, consolidation,
recapitalization, reclassification, split-up or combination of shares), or if
the number of shares of Common Stock of the Bancorp shall be increased through
the payment of a stock dividend, the Board of Directors shall make an
appropriate adjustment to the shares of Common Stock of the Bancorp subject to
the Plan as to the number and kind of shares of stock or other securities into
which each share subject to the Plan shall be so changed, or for which each
share shall be exchanged, or to which each such share shall be entitled, as the
case may be. In addition, in the event of any of the above stated events, the
Board of Directors shall make appropriate adjustment in the number and kind of
shares as to which outstanding options, or portions thereof then unexercised,
shall be exercisable. The adjustments shall not change the original expiration
date of the option.
In the event of a future stock issuance pursuant to a private or
public offering by the Bancorp of Common Stock, the Board of Directors shall
grant additional options to an optionee who is a current employee, officer or
director, pursuant to this Plan so that such an optionee's proportionate
interest in the Bancorp by reason of the optionee's rights under unexercised
portions of such option shall be maintained as before the occurrence of such
issuance. Additional options shall not be issued to employees, officers and
directors whose termination of employment or termination of status as an officer
or director occurs on or prior to the closing of such a stock offering. The
Bancorp shall provide an optionee who is an employee or officer with the choice
of receiving Incentive Stock Options or Non-Statutory Stock Options with respect
to such additional options. If optionee chooses to receive Incentive Stock
Options, the option price for any additional options shall be equal to or exceed
the fair market value (or 110% of fair market value if required by Section 5(a))
of the Bancorp's Common Stock on the date of the grant of the additional
options. The expiration date of the additional options shall not exceed 10 years
from the date of grant of the additional option (or 5 years in the event of an
Incentive Stock Option for a holder of more than 10% of the combined voting
power of the Bancorp). No adjustment shall be made to the option price of the
outstanding options held by the optionee before the grant of any additional
options pursuant to this provision. In no event shall the granting of additional
options as a result of such future stock issuance cause the number of shares of
Common Stock subject to this Plan to exceed the maximum number of shares of
Common Stock set forth in Section 4 herein.
<PAGE>7
In the event of a sale, dissolution or liquidation of the Bancorp
or a merger or reorganization in which the Bancorp is not the surviving or
resulting corporation, the Board of Directors shall have the power to cause the
termination of every option outstanding at the time of consummation of the
merger or reorganization, except that the surviving or resulting corporation
may, in its absolute and uncontrolled discretion, tender an option or options to
purchase its shares on its terms and conditions, both as to the number of shares
and otherwise. Bancorp may repurchase any outstanding Restricted Shares from the
date of execution of a reorganization agreement until consummation of the
reorganization, at their fair market value. Fair market value of the shares for
purposes of repurchase shall mean for each share the average of the bid and ask
price of Bancorp's Common Stock as of the date Bancorp decides to repurchase the
shares, or in an event of a merger or reorganization as provided in this Section
6, the price per share offered by the acquiring corporation. Any Restricted
Shares not repurchased shall become unrestricted immediately prior to the
reorganization.
No right to purchase fractional shares shall result from any
adjustment in options pursuant to this Section 6. In case of any such
adjustment, the shares subject to the option shall be rounded down to the
nearest whole share. Notice of any adjustment shall be given by the Bancorp to
each holder of an option which was in fact so adjusted and such adjustment
(whether or not such notice is given) shall be effective and binding for all
purposes of the Plan.
To the extent the foregoing adjustments relate to stock or
securities of the Bancorp, such adjustments shall be made by the Board of
Directors or the Committee, whose determination in that respect shall be final,
binding and conclusive.
Except as expressly provided in this Section 6, an optionee shall
have no rights by reason of any of the following events: (1) subdivision or
consolidation of shares of stock of any class; (2) payment of any stock
dividend; (3) any other increase or decrease in the number of shares of stock of
any class; (4) any dissolution, liquidation, merger, consolidation, spin-off of
assets or stock of another corporation.
The grant of an option pursuant to the Plan shall not affect in
any way the right or power of the Bancorp to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell, or
transfer all or any part of its business or assets.
7. LISTING OR QUALIFICATION OF SHARES
All options granted under the Plan are subject to the requirement
that if at any time the Board of Directors or the Committee shall determine in
its discretion that the listing or qualification of the Shares subject thereto
on any securities exchange or under any applicable law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of or in connection with the issuance of shares under the option, the
option may not be exercised in whole or in part unless such listing,
qualification, consent or approval shall have been effected or obtained free of
any condition not acceptable to the Board of Directors or the Committee.
<PAGE>8
8. BINDING EFFECT OF CONDITIONS
The conditions and stipulations herein contained, or in any
option granted pursuant to the Plan shall be, and constitute, a covenant running
with all of the Shares acquired by the optionee pursuant to this Plan, directly
or indirectly, whether the same have been issued or not, and those Shares owned
by the optionee shall not be sold, assigned or transferred by any person save
and except in accordance with the terms and conditions herein provided, and the
optionee shall agree to use the optionee's best efforts to cause the officers of
the Bancorp to refuse to record on the books of the Bancorp any assignment or
transfer made or attempted to be made, except as provided in the Plan, and to
cause said officers to refuse to cancel old certificates or to issue or deliver
new certificates therefor, where the purchaser or assignee has acquired
certificates or the Shares represented thereby, except strictly in accordance
with the provisions of the Plan.
9. AMENDMENT AND TERMINATION OF THE PLAN
The Board of Directors shall have complete power and authority to
terminate or amend the Plan; provided, however, that the Board of Directors
shall not, without the approval of the shareholders of the Bancorp and the
approval of the Department of Corporations, State of California, (i) increase
the maximum number of shares for which options may be granted under the Plan;
(ii) change the computation as to minimum option prices set forth in subsection
(a) of Section 5; (iii) extend the period during which options may be granted or
exercised; or (iv) amend the requirements as to the class of employees or
officers eligible to receive options; (v) amend the provisions of subsection (h)
of Section 5 of the Plan more than once every six months, other than to comport
with changes in the Internal Revenue Code or the Employee Retirement Income
Security Act or rules promulgated under either of them. Except as provided in
Section 6, no termination, modification or amendment of the Plan may, without
the consent of any employee or officer or director to whom an option shall
theretofore have been granted, adversely affect the rights of such employee or
officer or director under such option. Unless the Plan shall have been
terminated by action of the Board of Directors prior thereto, it shall terminate
ten (10) years after the earlier of its adoption by the Board of Directors or
approval by the shareholders of the Bancorp.
10. EFFECTIVENESS OF THE PLAN
The Plan shall become effective only upon approval by the Board
of Directors. The exercise of any options granted pursuant to the Plan shall be
conditioned upon the approval of the Plan within 12 months before or after the
date such Plan is adopted by the holders of a majority of the outstanding shares
of Common Stock of the Bancorp entitled to vote, represented in person or by
proxy at a meeting of the shareholders.
<PAGE>9
11. PRIVILEGES OF STOCK OWNERSHIP/SECURITIES LAW
COMPLIANCE/NOTICE OF SALE
No optionee shall be entitled to the privileges of stock
ownership as to any Shares not actually issued and delivered to the optionee. No
Shares shall be purchased upon the exercise of any option unless and until any
then applicable requirements of any regulatory agencies having jurisdiction and
of any exchanges upon which the Common Stock of the Bancorp may be listed shall
have been fully complied with. The Bancorp shall diligently endeavor to comply
with all applicable securities laws before any options are granted under the
Plan and before any Shares are issued pursuant to the exercise of such options.
The optionee shall give the Bancorp notice of any sale or other disposition of
any such Shares not more than five (5) days after such sale or disposition.
12. INDEMNIFICATION
To the extent permitted by applicable law in effect from time to
time, no member of the Board of Directors or the Committee shall be liable for
any action or omission of any other member of the Board of Directors or
Committee nor for any act or omission on the member's own part, excepting only
the member's own willful misconduct or gross negligence. The Bancorp shall pay
expenses incurred by, and satisfy a judgment or fine rendered or levied against,
a present or former director or member of the Committee in any action against
such person (whether or not the Bancorp is joined as a party defendant) to
impose liability or a penalty on such person for an act alleged to have been
committed by such person while a director or member of the Committee arising
with respect to the Plan or administration thereof or out of membership on the
Committee or by the Bancorp, or all or any combination of the preceding;
provided, the director or Committee member was acting in good faith, within what
such director or Committee member reasonably believed to have been within the
scope of his or her employment or authority and for a purpose which he or she
reasonably believed to be in the best interests of the Bancorp or its
shareholders. Payments authorized hereunder include amounts paid and expenses
incurred in settling any such action or threatened action. This section does not
apply to any action instituted or maintained in the right of the Bancorp by a
shareholder or holder of a voting trust certificate representing shares of the
Bancorp. The provisions of this section shall apply to the estate, executor,
administrator, heirs, legatees or devisees of a director or Committee member,
and the term "person" as used in this section shall include the estate,
executor, administrator, heirs, legatees, or devisees of such person.
13. WITHHOLDING TAXES
Upon the exercise of any stock option, the Bancorp shall have the
right to require the optionee to remit to the Bancorp an amount sufficient to
satisfy all federal, state and local withholding tax requirements prior to the
delivery of any certificate or certificates for shares of Common Stock.
Upon the disposition of any Common Stock acquired by the exercise
of a stock option, the Bancorp shall have the right to require the optionee to
remit to the Bancorp an amount sufficient to satisfy all federal, state and
local withholding tax requirements as a condition to the registration of the
transfer of such Common Stock on its books. Whenever under the Plan payments are
to be made by the Bancorp in cash or by check, such payments shall be net of any
amounts sufficient to satisfy all federal, state and local withholding tax
requirements.
RICHARDSON & COMPANY 550 Howe Avenue, Suite 210
Sacramento, California 95825
Telephone: (916) 564-8727
FAX: (916) 564-8728
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference inn this Registration Statement of
Humboldt Bancorp on Form S-8 of our report dated January 23, 1998 on our audit
of the consolidated financial statements of Humboldt Bancorp and subsidiary as
of December 31, 1997 and 1996 and for each of the three years in the period
ended December 31, 1997.
RICHARDSON & COMPANY
Sacramento, California
September 4, 1998
