<PAGE>
As filed with the Securities and Exchange Commission on January 26, 2000
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________
GBC BANCORP
(Exact name of registrant as specified in its charter)
California 95-3586596
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
800 West 6th Street 90017
Los Angeles, California (Zip code)
(Address of principal executive offices)
__________
1999 EMPLOYEE STOCK INCENTIVE PLAN
(Full title of the plan)
__________
LI-PEI WU
Chairman of the Board
Chief Executive Officer
GBC Bancorp
800 West 6th Street
Los Angeles, California 90017
(Name and address of agent for service)
(213) 972-4118
(Telephone number, including area code, of agent for service)
Copy to:
PETER M. MENARD, ESQ.
Sheppard, Mullin, Richter & Hampton, LLP
333 South Hope Street, 48th Floor
Los Angeles, California 90071
(213) 617-5483
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering price aggregate registration
to be registered registered (1) per share (2) offering price fee (3)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 2,484,120 $19.50 $48,440,340 $5,148
==================================================================================================================================
</TABLE>
(1) This Registration Statement covers, in addition to the number of shares of
Common Stock stated above, such indeterminate number of shares of Common
Stock as may be issued upon exercise of awards granted under the 1999
Employee Stock Incentive Plan as a result of the adjustment provisions
thereof.
(2) Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457 based upon the average of the high and low prices
of the Common Stock as reported on the Nasdaq National Market on
January 20, 2000.
(3) Pursuant to Instruction E to Form S-8, the registration fee does not
include $7,640.25 with respect to 1,484,120 shares previously registered
pursuant to the predecessor plan (Registration No. 33-47452) for which a
registration fee previously has been paid.
===============================================================================
This Registration Statement Includes a Total of 9 pages.
Exhibit Index Appears on Page II-3.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of
Form of S-8 will be sent or given to participants in the 1999 Employee Stock
Incentive Plan (the "Plan") of GBC Bancorp, a California corporation (the
"Registrant"), as specified in Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"). Such document(s) are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 in accordance with the Note to Part
I of Form S-8. These documents and the documents incorporated by reference into
this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
GBC Bancorp (the "Registrant") hereby files this Registration
Statement on Form S-8 with the Securities and Exchange Commission (the
"Commission") to register 2,484,120 shares (the "Shares") of the Registrant's
Common Stock for issuance pursuant to the Registrant's 1999 Employee Stock
Incentive Plan (the "Plan), and such indeterminate number of shares as may
become available under the Plan as a result of the adjustment provisions
thereof. The Shares include (i) 1,000,000 shares, including any shares issuable
pursuant to that certain Employment Agreement dated as of January 1, 1998,
between the Registrant and Li-Pei Wu, as amended, (ii) 343,020 shares currently
available for future awards under the Registrant's Amended and Restated 1988
Stock Option Plan (the "Prior Plan") and (iii) up to 1,141,100 shares subject to
awards currently outstanding under the Prior Plan and which subsequently may be
forfeited, canceled, or expire without delivery of shares.
Item 1. Incorporation of Documents by Reference.
---------------------------------------
The following documents previously filed by the Registrant with
the Commission are incorporated in this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998;
(b) All other reports filed by the Registrant pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year ended December 31, 1998; and
(c) The description of the Common Stock of the Registrant
contained in the Registrant's Registration Statement on Form 8-A, including any
amendment or report filed for the purpose of updating such information.
All documents filed by the Registrant pursuant to Section 13(a),
13(c) 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement made in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which is also
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 2. Description of Securities.
-------------------------
Not applicable.
Item 3. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 4. Indemnification of Directors and Officers.
-----------------------------------------
Section 204 of the General Corporation Law of the State of
California (the "California Law") permits the limitation of the personal
liability of a director for monetary damages in an action brought by or in the
right of the corporation for breach of a director's duties to the corporation
and its shareholders under certain conditions and subject to certain
limitations.
II-1
<PAGE>
Section 317 of the California Law (i) permits indemnification of
directors, officers, employees and other agents of the corporation under certain
conditions and subject to certain limitations and (ii) provides that the
corporation has the power to purchase and maintain insurance on behalf of its
directors, officers, employees and other agents against any liability asserted
against or incurred by them in such capacity or arising out of their status as
such.
Article Six of the Articles of Incorporation of the Registrant
provides as follows:
Six: Director Liability
The liability of the directors of the corporation for
monetary damages shall be eliminated to the fullest extent permissible
under California law.
Article Seven of the Articles of Incorporation of the Registrant
provides as follows:
Seven: Indemnification
The corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the Corporations Code) for breach
of duty to the corporation and its stockholders through bylaw
provisions or through agreements with the agents, or both, in excess
of the indemnification otherwise permitted by Section 317 of the
Corporations Code, subject to the limits on such excess
indemnification set forth in Section 204 of the Corporations Code.
Article VI of the Bylaws of the Registrant provides as follows:
Section 1. Definitions. For the purposes of this Article,
--------- -----------
"agent", includes any person who is or was a Director, officer,
employee, or other agent of the corporation, or is or was serving at
the request of the corporation as a Director, officer, employee, or
agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, or was a Director, officer,
employee, or agent of a foreign or domestic corporation which was a
predecessor corporation of the corporation or of another enterprise at
the request of such predecessor corporation; "proceeding" includes any
threatened, pending, or completed action or proceeding, whether civil,
criminal, administrative or investigative; and "expenses" includes
without limitation attorneys' fees and any expenses of establishing a
right to indemnification pursuant to law.
Section 2. Extent of Indemnification. The corporation shall,
--------- -------------------------
to the maximum extent permitted by the California General Corporation
Law, advance expenses to and indemnify each of its agents against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding arising by
reason of the fact any such person is or was an agent of the
corporation.
Section 3. Insurance. The corporation shall have power to
--------- ---------
purchase and maintain insurance on behalf of any agent of the
corporation against any liability asserted against or incurred by the
agent in such capacity or arising out of the agent's status as such
whether or not the corporation would have the power to indemnify the
agent against such liability under the provisions of this Article.
The Registrant has entered into indemnification agreements with
certain of its directors and executive officers which require the Registrant to
indemnify such persons to the fullest extent permitted by applicable law.
The Registrant maintains an insurance policy pursuant to which the
directors and officers of the Registrant are insured, within the limits and
subject to the limitations of the policy, against certain expenses in connection
with the defense of certain claims, actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such claims, actions, suits or
proceedings, which may be brought against them by reason of their being or
having been such directors and officers.
II-2
<PAGE>
Item 5. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 6. Exhibits.
--------
Exhibit
Number Description
------ -----------
3.1 Articles of Incorporation of the Registrant, as amended
3.2 Bylaws of the Registrant, as amended
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP
23.1 Consent of Sheppard, Mullin, Richter & Hampton LLP (see
Exhibit 5.1)
23.2 Consent of Independent Auditors (Deloitte & Touche LLP)
24.1 Power of Attorney (See page II-6)
99.1 1999 Employee Stock Incentive Plan
99.2 Form of Incentive Stock Option Agreement
99.3 Form of Non-Qualified Stock Option Agreement
99.4 Form of Restricted Stock Agreement
99.5 Employment Agreement dated as of January 1, 1998, between
the Registrant and Li-Pei Wu, as amended/1/
Item 7. Undertakings.
------------
(a) 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:
(ii) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; To reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if this Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That for the purpose of determining any liability
under the Securities Act of 1933, 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.
___________________________
/1/ Filed as Exhibit 10 to the Registrant's Current Report on Form 8-K filed
with the Securities and Exchange Commission on February 24, 1998.
II-3
<PAGE>
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or 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 of 1933 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 whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
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 Los Angeles, State of California, on this 20th day of
January, 2000.
GBC BANCORP
By /s/ Li-Pei Wu
------------------------------------
Li-Pei Wu, Chairman of the Board
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Li-Pei Wu and Peter E. Lowe his
true and lawful attorney-in-fact and agent, each with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent with full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- -----
<S> <C> <C>
/s/ Li-Pei Wu Chairman of the Board, Chief Executive January 20, 2000
- ----------------------------------------------- Officer and Director (Principal Executive
Li-Pei Wu Officer)
/s/ Peter Wu President, Chief Operating Officer, January 20, 2000
- ----------------------------------------------- Secretary and Director
Peter Wu
/s/ Peter E. Lowe Executive Vice President and Chief Financial January 20, 2000
- ----------------------------------------------- Officer (Principal Financial and Accounting
Peter E. Lowe Officer)
/s/ Thomas C.T. Chiu Director January 20, 2000
- ----------------------------------------------
Thomas C.T. Chiu
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Chuang-I Lin Director January 20, 2000
- --------------------------------------
Chuang-I Lin
/s/ Ko-Yen Lin Director January 20, 2000
- --------------------------------------
Ko-Yen Lin
/s/ Ting Y. Liu Director January 20, 2000
- --------------------------------------
Ting Y. Liu
/s/ John C. Wang
- -------------------------------------- Director January 20, 2000
John C. Wang
/s/ Kenneth C. Wang Director January 20, 2000
- --------------------------------------
Kenneth C. Wan
/s/ Chien-Te Wu Director January 20, 2000
- -------------------------------------
Chien-Te Wu
/s/ Julian Wu Director January 20, 2000
- --------------------------------------
Julian Wu
/s/ Ping C. Wu Director January 20, 2000
- --------------------------------------
Ping C. Wu
/s/ Walter Wu Director January 20, 2000
- --------------------------------------
Walter Wu
/s/ Chin-Liang Yen Director January 20, 2000
- --------------------------------------
Chin-Liang Yen
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
------ ----------- -----------
<S> <C> <C>
3.1 Articles of Incorporation of the Registrant __
3.2 Bylaws of the Registrant __
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP __
23.1 Consent of Sheppard, Mullin, Richter & Hampton LLP (see Exhibit 5.1)
23.2 Consent of Independent Auditors (Deloitte & Touche LLP) __
24.1 Power of Attorney (See page II-6)
99.1 1999 Employee Stock Incentive Plan __
99.2 Form of Incentive Stock Option Agreement __
99.3 Form of Non-Qualified Stock Option Agreement __
99.4 Form of Restricted Stock Agreement __
99.5 Employment Agreement dated as of January 1, 1998, between the
Registrant and Li-Pei Wu, as amended/1/
</TABLE>
_________________________
/1/ Filed as Exhibit 10 to the Registrant's Current Report on Form 8-K filed
with the Securities and Exchange Commission on February 24, 1998.
<PAGE>
EXHIBIT 3.1
[LOGO OF STATE OF CALIFORNIA]
[SEAL]
SECRETARY OF STATE
I, BILL JONES, Secretary of State of the State of California, hereby
certify:
That the attached transcript of 6 page(s) was prepared by and in this
office from the record on file, of which it purports to be a copy, and that it
is full, true and correct.
[SEAL]
IN WITNESS WHEREOF, I execute this
certificate and affix the Great Seal of
the State of California this day of
JAN 11 2000
----------------------------------------
/s/ Bill Jones
Secretary of State
<PAGE>
1030774
F I L E D
In the office of the Secretary of State
of the State of California
NOV 25 1980
MARCH FONG EU, Secretary of State
By /s/ Bill Holder
------------------------------
Deputy
ARTICLES OF INCORPORATION
OF
G B C BANCORP
ONE: The name of this corporation is:
G B C BANCORP
TWO: PURPOSES
--------
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California, other than the banking business, the trust company business,
or the practice of a profession permitted to be incorporated by the California
Corporations Code.
THREE: AGENT FOR SERVICE OF PROCESS
----------------------------
The name and address in the State of California of the corporation's
initial agent for service of process is:
MARTIN GODIN
Attorney at law
201 South Figueroa Street
Suite 270
Los Angeles, Ca 90012.
FOUR: TOTAL NUMBER OF SHARES AUTHORIZED
---------------------------------
This corporation is authorized to issue two classes of shares,
designated respectively "Common Stock" and "Preferred Stock" and referred to
herein either as
<PAGE>
Common Stock or Common shares and Preferred Stock or Preferred shares,
respectively. The number of shares of Common Stock is Twenty Million
(20,000,000) and the number of shares of Preferred Stock is Ten Million
(10,000,000).
FIVE: RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS
------------------------------------------------
The Preferred shares may be issued from time to time in one or more
series. The Board of Directors is authorized to fix the number of shares of any
series of Preferred shares and to determine the designation of any such series.
The Board of Directors is also authorized to determine or alter the rights,
preferences, privileges, and restrictions granted to or imposed upon any wholly
unissued series of Preferred shares and, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series, to increase or decrease
(but not below the number of shares of any such series subsequent to the issue
of shares of that series.
DATED: November 18, 1980
/s/ Martin Godin
-----------------------------
MARTIN GODIN, Incorporator
I declare that I am the person
who executed the above Articles
of Incorporation as the incorporator
of this corporation, and such instrument
is my act and deed.
/s/ Martin Godin
- ----------------------------
MARTIN GODIN
-2-
<PAGE>
F I L E D
In the office of the Secretary of State
of the State of California
APR 1 1981
MARCH FONG EU, Secretary of State
By /s/ [ILLEGIBLE]
-----------------------------
Deputy
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF
GBC BANCORP
R. Gene Thurman and Peter Wu certify that:
1. They are the President and the Secretary, respectively of GBC
Bancorp, a California Corporation.
2. The following Amendment to the Articles of Incorporation of the
corporation has been approved by the Board of Directors of the Corporation, and
Article "FOUR" of the Articles of Incorporation of this corporation are hereby
amended to read, in full, as follows:
FOUR: Total Number of Shares Authorized.
---------------------------------
This corporation is authorized to issue only one class of shares,
which shall be designated as "common shares." The total authorized number of
such shares which may be issued is Twenty Million (20,000,000).
3. The following amendment to Articles of Incorporation of the
corporation has also been approved by the Board of Directors of the
corporation, and Article "FIVE" of the Articles of Incorporation is hereby
amended so as to be deleted in its entirety, including any caption or headings.
4. The Amendments were approved by the required vote of shareholders in
accordance with Section 903 of the California Corporations Code. The total
number of shares outstanding of each class entitled to vote on the Amendments
was 100 shares of common stock and 0 shares of preferred stock since there are
no shares of preferred stock outstanding; the favorable vote of more than 50% of
such shares of common stock and therefore of greater than 50% of all shares of
stock outstanding is required to approve
<PAGE>
the amendments; and the number of such shares of stock outstanding voting in
favor of the amendments exceeded the vote required, and 100% of all shares
outstanding were voted in favor of the Amendments.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Amendment of Articles of Incorporation this 31st day of March, 1981.
/s/ R. Gene Thurman
------------------------------
R. Gene Thurman, President
/s/ Peter Wu
------------------------------
Peter Wu, Secretary
STATE OF CALIFORNIA )
ss.
COUNTY OF LOS ANGELES )
R. Gene Thurman and Peter Wu, being first duly sworn, each for himself,
deposes and says:
That they are the President and Secretary, respectively, of GBC Bancorp, a
California corporation, and the persons named in and who executed the foregoing
Certificate of Amendment of Articles of Incorporation; that they have read the
same and know the contents thereof and that each of his own knowledge knows the
same to be true and correct.
/s/ R. Gene Thurman
------------------------------
R. Gene Thurman
/s/ Peter Wu
------------------------------
Peter Wu
Subscribed and sworn to before me this 31st day of March, 1981.
[OFFICIAL SEAL APPEARS HERE] /s/ Linda H. Peh
------------------------------
Notary Public in and for said
County and State
<PAGE>
A352306
F I L E D
In the office of the Secretary of State
of the State of California
MAY 25 1988
/s/ March Fong Eu
MARCH FONG EU, Secretary of State
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
GBC BANCORP, A California Corporation
LI PEI WU and PETER WU, do hereby certify as follows:
1. They are the duly elected and acting President and Secretary, respectively,
of GBC Bancorp.
2. The Articles of Incorporation of GBC Bancorp shall be amended to add the
following provisions:
SIX: DIRECTOR LIABILITY
The liability of the directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under
California law.
SEVEN: INDEMNIFICATION
The corporation is authorized to provide indemnification of agents
(as defined in Section 317 of the Corporations Code) for breach of duty to
the corporation and its stockholders through bylaw provisions or through
agreements with the agents, or both, in excess of the indemnification
otherwise permitted by Section 317 of the Corporations Code, subject to the
limits on such excess indemnification set forth in Section 204 of the
Corporations Code.
3. The foregoing amendments have been approved by the Board of Directors of
GBC Bancorp.
4. The foregoing amendments were approved by the required vote of the
shareholders of GBC Bancorp in accordance with Section 902 of the California
General Corporation Law: the total number of outstanding shares of each class
entitled to vote with respect to the foregoing amendment was 4,174,334 common
shares; and the number of shares of each class voting in favor of the foregoing
amendment equaled or exceeded the vote required, such required vote being a
majority of the outstanding shares of common stock.
/s/ Li Pei Wu
-------------------------
LI PEI WU, President
/s/ Peter Wu
-------------------------
PETER WU, Secretary
<PAGE>
VERIFICATION
The undersigned, LI PEI WU and PETER WU, respectively, of GBC Bancorp, each
declares under penalty of perjury that the matters set out in the foregoing
Certificate are true of his knowledge.
Executed at Los Angeles, California on April 29, 1998.
/s/ Li Pei Wu
-------------------
LI PEI WU
/s/ Peter Wu
-------------------
PETER WU
-2-
<PAGE>
EXHIBIT 3.2
BY-LAWS
OF
GBC BANCORP
ARTICLE I
Offices
-------
Section 1. Principal Office. The Board of Directors shall fix the
---------- -----------------
location of the principal executive office of the corporation at any place
within or outside the State of California. If the principal executive office is
located outside this state, and the corporation has one or more business offices
in this state, the Board of Directors shall fix and designate a principal
business office in the State of California.
Section 2. Other Offices. Branch or other Subordinate offices may at
---------- --------------
any time be established by the Board at such other places as it deems
appropriate.
Article II
Meetings of Shareholders
------------------------
Section 1. Place of Meetings. Meetings of shareholders shall be held
---------- ------------------
at any place within or outside the State of California designated by the Board
of Directors. In the absence of any such designation, Shareholders' meetings
shall be held at the principal executive office of the corporation.
Section 2. Annual Meeting. The annual meeting of shareholders shall be
---------- ---------------
held on the fourth Tuesday in March of each year at 1.30 p.m., or such other
date or such other time as may be fixed by the Board of Directors. However, if
this day falls on a legal holiday, then the meeting shall be held at the same
time and place on the next succeeding full business day. At this meeting,
Directors shall be elected, and any other proper business within the power of
the shareholders may be transacted.
<PAGE>
Section 3. Special Meetings. Special meetings of the shareholders may
--------- ----------------
be called at any time by the Board, the Chairman of the Board, the President, or
by the holders of shares entitled to cast not less than ten percent (10%) of the
votes at such meeting. If a special meeting is called by any person or persons
other than the Board of Directors, the request shall be in writing, specifying
the time of such meeting and the general nature of the business proposed to be
transacted, and shall be delivered personally or by registered mail to the
Chairman of the Board, the President, any Vice President or the Secretary of the
corporation. The officer receiving the request shall cause notice to be promptly
given to the shareholders entitled to vote that a meeting will be held at a time
requested by the person or persons calling the meeting, not less than 35 nor
more than 60 days after receipt of the request. If the notice is not given
within 20 days after receipt of the request, the person or persons requesting
the meeting may give the notice. Nothing in this paragraph shall be construed as
limiting, fixing or affecting the time when a meeting of shareholders called by
action of the Board of Directors may be held.
Section 4. Notice of Meetings. Written notice, in accordance with
--------- ------------------
Section 5 of this Article II, of each annual or special meeting of shareholders
shall be given not less than 10 nor more than 60 days before the date of the
meeting to each shareholder entitled to vote thereat. Such notice shall state
the place, date, and hour of the meeting and (a) in the case of a special
meeting, the general nature of the business to be transacted, and no other
business may be transacted, or (b) in the case of the annual meeting, those
matters which the Board, at the time of the mailing of the notice, intends to
present for action by the shareholders, but, subject to the provisions of
applicable law, any proper matter may be presented at the meeting for such
action. The notice of any meeting at which Directors are to be elected shall
include the names of nominees intended at the time of the notice to be presented
by management for election.
If action is proposed to be taken at any meeting for approval of (a) a
contract or transaction in which a Director has a direct or indirect financial
interest, pursuant to Section 310 of the Corporations Code of California, (b) an
amendment of the Articles of Incorporation, pursuant to Section 902 of that
Code, (c) a reorganization of the corporation, pursuant to Section 1201 of that
Code, (d) a voluntary dissolution of the corporation, pursuant to Section 1900
of that Code, or (e) a distribution in dissolution other than in accordance with
the rights of outstanding preferred shares, pursuant to Section 2007 of that
Code, the notice shall also state the general nature of that proposal.
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Section 5. Manner of Giving Notice. Notice of a shareholders' meeting
--------- -----------------------
shall be given either personally or by first-class mail or telegraphic or other
written communication, charges prepaid, addressed to the shareholder at the
address of that shareholder appearing on the books of the corporation or given
by the shareholder to the corporation for the purpose of notice. If no such
address appears on the corporation's books or is given, notice shall be deemed
to have been given if sent to that shareholder by first-class mail or
telegraphic or other written communication to the corporation's principal office
or if published at least once in a newspaper of general circulation in the
county in which that office is located. Notice shall be deemed to have been
given at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication. An affidavit of mailing or
other means of giving any notice in accordance with the above provisions,
executed by the Secretary, Assistant Secretary or other transfer agent shall be
prima facie evidence of the giving of the notice or report.
Section 6. Quorum. The presence in person or by proxy of the holders
--------- ------
of a majority of the shares entitled to vote at any meeting shall constitute a
quorum for the transaction of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
Section 7. Adjourned Meeting and Notice Thereof. Any shareholders'
--------- ------------------------------------
meeting, whether or not a quorum is present, may be adjourned from time to time
by the vote of a majority of the shares, the holders of which are either present
in person or represented by proxy thereat, but in the absence of a quorum
(except as provided in Section 6 of this Article) no other business may be
transacted at such meeting.
When any meeting of shareholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place are announced at the meeting at which the
adjournment is taken. However, when any shareholders' meeting is adjourned for
more than 45 days from the date set for the original meeting, or, if after
adjournment a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given as in the case of an original meeting. At any
adjourned meeting the corporation may transact any business which may have been
transacted at the original meeting.
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Section 8. Voting. The shareholders entitled to notice of any
---------- -------
meeting or to vote at any such meeting shall be only persons, in whose name
shares stand on the stock records of the corporation on the record date
determined in accordance with Section 9 of this Article.
Voting shall in all cases be subject to the provisions of Sections
702 through 704, inclusive, of the California General Corporation Law
(relating to voting shares held by a fiduciary, in the name of a corporation,
or in joint ownership).
The shareholders' vote may be by voice or ballot; provided, however,
that any election for Directors must be by ballot if demanded by any shareholder
before the voting has begun. On any matter other than elections of Directors,
any shareholder may vote part of the shares in favour of the proposal and
refrain from voting the remaining shares or vote them against the proposal
(other than the election of Directors), but, if the shareholder fails to specify
the number of shares which the shareholder is voting affirmatively, it will be
conclusively presumed that the shareholder's approving vote is with respect to
all shares that the shareholder is entitled to vote. If a quorum is present, the
affirmative vote of the majority of the shares represented at the meeting and
entitled to vote on any matter (other than the election of directors) shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by the California Corporation Law or by the Articles of
Incorporation.
Subject to the following sentence and to the provisions of Section 708
of the California General Corporation Law, every shareholder entitled to vote at
any election of Directors may cumulate such shareholder's votes and give one
candidate a number of votes equal to the number of Directors to be elected
multiplied by the number of votes to which the shareholder's share are entitled,
or distribute the shareholder's votes on the same principle among as many
candidates as the shareholder thinks fit. No shareholder shall be entitled to
cumulate votes for any candidate or candidates pursuant to the preceding
sentence unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice, at the
meeting and before the voting begins, of the shareholder's intention to cumulate
the shareholder's votes. If any one shareholder has given such notice, all
shareholders may cumulate their votes for candidates in nomination.
In any election of Directors, the candidates receiving the highest
number of votes of the shares entitled to be voted for them up
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to the number of Directors to be elected, shall be elected.
Section 9. Record Date. The Board may fix, in advance, a record
---------- ------------
date for the determination of the shareholders entitled to notice of any meeting
or to vote or entitled to receive payment of any dividend or other distribution,
or any allotment of rights, or to exercise rights in respect of any other lawful
action. The record date so fixed shall be not more than 60 days nor less than 10
days prior to the date of the meeting nor more than 60 days prior to any other
action. When a record date is so fixed, only shareholders of record on that date
are entitled to notice of and to vote at the meeting or to receive the
dividend, distribution, or allotment of rights, or to exercise of the rights, as
the case may be, notwithstanding any transfer of shares on the books of the
corporation after the record date. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting unless the Board fixes a new record date for the
adjourned meeting. The Board shall fix a new record date if the meeting is
adjourned for more than 45 days.
If no record date is fixed by the Board, the record date for
determining shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business on the business day next
preceeding the day on which the meeting is held. The record date for determining
shareholders for any purpose other than set forth in this Section 9 or Section
11 of this Article shall be at the close of business on the day on which the
Board adopts the resolution relating thereto, on the sixtieth day prior to the
date of such other action, whichever is later.
Section 10. Consent of Absentees. The transactions of any meeting
----------- ---------------------
of shareholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a waiver of notice, or a consent to the holding of the meeting or
an approval of the minutes thereof. All such waivers, consents, or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting. Neither the business to be transacted at nor the purpose of any regular
or special meeting of shareholders need be specified in any written waiver of
notice, except that if action is taken or proposed to be taken for approval of
any of those matters specified in the second paragraph of Section 4 of this
Article II, the waiver of notice or consent shall state the general nature of
the proposal.
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Section 11. Action by Written Consent Without a Meeting. Subject
----------- --------------------------------------------
to Section 603 of the California General Corporation Law, any action which may
be taken at any annual or special meeting of shareholders may be taken without a
meeting and without prior notice if a consent in writing, setting forth the
action so taken, is signed by the holders of the outstanding shares having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted, or their proxies. All such consents shall be filed with the
Secretary of the corporation and shall be maintained in the corporate records.
provided, however, that (1) unless the consents of all shareholders entitled to
vote have been solicited in writing, notice of any shareholder approval without
a meeting by less than unanimous consent shall be given, as provided by Section
603(b) of the California Corporations Code, and (2) in the case of election of
directors, such a consent shall be effective only if signed by the holders of
all outstanding shares entitled to vote for the election of Directors; provided,
however, that subject to applicable law, a Director may be elected at any time
to fill a vacancy on the Board of Directors that has not been filled by the
Directors, by the written consent of the holders of a majority of the
outstanding shares entitled to vote for the election of Directors. Any written
consent may be revoked by a writing received by the Secretary of the corporation
prior to the time that written consents of the number of shares required to
authorize the proposed action have been filed with the Secretary.
Unless a record date for voting purposes be fixed as provided in
Section 9 of this Article, the record date for determining shareholders entitled
to give consent pursuant to this Section 11, when no prior action by the Board
has been taken, shall be the day on which the first written consent is given.
Section 12. Proxies. Every person entitled to vote shares or
----------- --------
execute written consents has the right to do so either in person or by one or
more persons authorized by a written proxy executed and dated by such
shareholder and filed with the Secretary of the corporation prior to the
convening of any meeting of the shareholders at which any such proxy is to be
used or prior to the use of such written consent. A validly executed proxy which
does not state that it is irrevocable continues in full force and effect unless
(1) revoked by the person executing it, before the vote pursuant thereto, by a
writing delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by, or by attendance at the meeting and voting in
person by, the person executing the proxy; or (2) written notice of the death or
incapacity of the maker of the proxy is received by the
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<PAGE>
corporation before the vote pursuant thereto is counted; provided, however, that
no proxy shall be valid after the expiration of 11 months from the date of its
execution unless otherwise provided in the proxy.
Section 13. Inspectors of Election. In advance of any meeting of
----------- -----------------------
shareholders, the Board may appoint any persons other than nominees for office
as inspectors of election to act at such meeting and any adjournment thereof. If
no inspectors of election are so appointed, or if any persons so appointed fail
to appear or fail or refuse to act, the Chairman of any such meeting may, and on
the request of any shareholder or shareholder's proxy shall, appoint inspectors
of election at the meeting. The number of inspectors shall be either one (1) or
three (3). If inspectors are appointed at a meeting on the request of one or
more shareholders or proxies, the holders of a majority of share or their
proxies present shall determine whether one (1) or three (3) inspectors are to
be appointed.
The duties of such inspectors shall be as prescribed by Section 707(b)
of the California General Corporation Law and shall include: determining the
number of shares outstanding and the voting power of each; the shares
represented at the meeting; the existence of a quorum; the authenticity,
validity and the effect of proxies; receiving votes, ballots or consents;
hearing and determining all challenges and questions in any way arising in
connection with the right to vote; counting and tabulating all votes or
consents, determining when the polls shall close; determining the result; and
doing such acts as may be proper to conduct the election or vote with fairness
to all shareholders. If there are three inspectors of election, the decision,
act, or certificate of a majority is effective in all respects as the decision,
act or certificate of all.
ARTICLE III
Directors
---------
Section 1. Powers. Subject to the provisions of the California
---------- -------
General Corporation Law and any limitations in the Articles of Incorporation and
these By-Laws relating to action required to be approved by the shareholders or
by the outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
the Board of Directors. The Board may delegate the management of the day-to-day
operation of the business of the corporation to a management company or other
person
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<PAGE>
provided that the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised under the ultimate direction of the
Board. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the Board shall have the
following powers in addition to the other powers enumerated in these By-Laws:
(a) To select and remove all the other officers, agents, and
employees of the corporation, prescribe any powers and duties for them that are
consistent with law, or with the Articles or these By-Laws, fix their
compensation, and require from them security for faithful service.
(b) To conduct, manage, and control the affairs and business of the
corporation and to make such rules and regulations therefor not inconsistent
with law, or with the Articles or these By-Laws, as they may deem best.
(c) To adopt, make, and use a corporate seal, and to prescribe the
forms of certificates of stock, and to alter the form of such seal and of such
certificates from time to time as in their judgment they may deem best.
(d) To authorize the issuance of shares of stock of the corporation
from time to time, upon such terms and for such consideration as may be lawful.
(e) To borrow money and incur indebtedness for the purposes of the
corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory and capital notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations, or other evidences of debt and
securities therefor and any agreements pertaining thereto.
(f) To prescribe the manner in which and the person or persons by
whom any or all of the checks, drafts, notes, contracts and other corporate
instruments shall be executed.
(g) To appoint and designate, by resolution adopted by a majority of
the authorized number of Directors, one or more committees, each consisting of
two or more Directors, including the appointment of alternate members of any
committee who may replace any absent member at any meeting of the committee;
and
(h) Generally, to do and perform every act or thing what-
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<PAGE>
ever that may pertain to or be authorized by the Board of Directors of a
commercial bank under the laws of this state.
Section 2. Number and Qualification of Directors. The authorized
---------- --------------------------------------
number of Directors shall be not less than five (5) nor more than nine (9) until
changed by an amendment to this By-Law adopted by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote. The exact
number of Directors shall be seven (7), until changed, within the limits
specified above, by a By-Law amending this Section 2, duly adopted by the Board
of Directors or by the Shareholders.
Section 3. Election and Term of Office. The Directors shall be
---------- ----------------------------
elected at each annual meeting of shareholders but if any such annual meeting is
not held or the Directors are not elected thereat, the Directors may be elected
at any special meeting of shareholders held for that purpose. Each Director
shall hold office until the next annual meeting and until a successor has been
elected and qualified.
Section 4. Vacancies. Any Director may resign effective upon giving
---------- ----------
written notice to the Chairman of the Board, the President, Secretary, or the
Board, unless the notice specifies a later time for the effectiveness of such
resignation. If the resignation is effective at a future time, a successor may
be elected to take office when the resignation becomes effective.
Vacancies in the Board may be filled by a majority of the remaining
Directors, though less than a quorum, or by a sole remaining Director, and each
Director so elected shall hold office until the next annual meeting and until
such Director's successor has been elected and qualified. Provided, however,
that a vacancy in the Board existing as the result of a removal of a Director
may not be filled by the Directors, unless the Articles or a by-law adopted by
the shareholders so provides.
A vacancy or vacancies in the Board shall be deemed to exist in case
of the death, resignation, or removal of any Director, or if the authorized
number of Directors be increased, or if the shareholders fail, at any annual or
special meeting of shareholders at which any Director or Directors are elected,
to elect the full authorized number of Directors to be voted for at that
meeting.
The Board may declare vacant the office of a Director who has been
declared of unsound mind by an order of court or convicted of a felony.
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<PAGE>
The shareholders may elect a Director or Directors at any time to fill
any vacancy or vacancies not filled by the Directors. Any such election by
written consent other than to fill a vacancy created by removal requires the
consent of a majority of the outstanding shares entitled to vote. Any such
election by written consent to fill a vacancy created by removal requires the
unanimous consent of the outstanding shares entitled to vote. If the Board
accepts the resignation of a Director tendered to take effect at a future time,
the Board or the shareholders shall have power to elect a successor to take
office when the resignation is to become effective.
No reduction of the authorized number of directors shall have the
effect of removing any Director prior to the expiration of the Director's term
of office.
Section 5. Place of Meeting. Regular meetings of the Board shall
---------- -----------------
be held at any place within the State of California which has been designated in
the notice of meeting or if there is no notice, at the principal office of the
corporation, or at a place designated by resolution of the Board or by the
written consent of the Board. Any regular or special meeting is valid wherever
held if held upon written consent of all members of the Board given either
before or after the meeting and filed with the Secretary if the corporation.
Section 6. Regular Meetings. Immediately following each annual
---------- -----------------
meeting of shareholders and at the same place, the Board shall hold a regular
meeting for the purpose of organization, any desired election of officers, and
the transaction of other business. Notice of this meeting shall not be required.
Other regular meetings of the Board shall be held without notice
either on the third Thursday of each month at the hour of 4:00 p.m. or at such
different date and time as the Board may from time to time fix by resolution;
provided, however, should said day fall upon a legal holiday observed by the
corporation at its principal office, then said meeting shall be held at the same
time and place on the next succeeding full business day. Call and notice of all
regular meetings of the Board are hereby dispensed with.
Section 7. Special meetings. Special meetings of the Board for
---------- -----------------
any purpose or purposes may be called at any time by the Chairman of the
Board, the President, or the Secretary or by any two Directors.
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Special meetings of the Board shall be held upon four days written notice
by mail or 24 hours notice delivered personally or by telephone or telegraph.
Any such notice shall be addressed or delivered to each Director at such
Director's address as it is shown upon the records of the corporation or as may
have been given to the corporation by the Director for purposes of notice or, if
such address is not shown on such records or is not readily ascertainable, at
the place in which the meetings of the Directors are regularly held. Such notice
may, but need not, specify the purpose of the meeting, nor the place if the
meeting is to be held at the principal office of the corporation. Notice of any
meeting of the Board need not be given to any Director who attends the meeting
without protesting either prior thereto or at its commencement, the lack of
notice to such Director.
Notice by mail shall be deemed to have been given at the time a written
notice is deposited in the United States mails, postage prepaid. Any other
written notice shall be deemed to have been given at the time it is personally
delivered to the recipient or is delivered to a common carrier for transmission,
or actually transmitted by the person giving the notice by electronic means, to
the recipient. Oral notice shall be deemed to have been given at the time it is
communicated, in person or by telephone or wireless, to the recipient or to a
person at the office of the recipient who the person giving the notice has
reason to believe will promptly communicate it to the recipient.
Section 8. Quorum. A majority of the authorized number of Directors
---------- -------
constitutes a quorum of the Board for the transaction of business, except to
adjourn as hereinafter provided. Every act or decision done or made by a
majority of the Directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board, unless a greater number be
required by the Articles and subject to the provisions of Section 310 of the
California General Corporation Law (as to approval of contracts or transactions
in which a Director has a direct or indirect material financial interest),
Section 311 (as to appointment of committees), and Section 317 (e) (as to
indemnification of directors). A meeting at which a quorum is initially present
may continue to transact business notwithstanding the withdrawal of Directors,
if any action taken is approved by at least a majority of the required quorum
for such meeting.
Section 9. Participation in Meetings by Conference Telephone. Members of
--------------------------------------------------
the Board may participate in a meeting through use of a conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another.
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<PAGE>
Participation in a meeting pursuant to Section 9 constitutes "presence" in
person at such meeting.
Section 10. Waiver of Notice. The transactions of any meeting of
----------- -----------------
the Board, however called and noticed or wherever held, are as valid as though
had at a meeting duly held after regular call and notice if a quorum is present
and if, either before or after the meeting, each of the Directors not present
signs a written waiver of notice, a consent to holding such meeting or an
approval of the minutes thereof. All such waivers, consents, or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Section 11. Adjournment. A majority of the Directors present,
----------- ------------
whether or not a quorum is present, may adjourn any Directors' meeting to
another time and place. Notice of the time and place of holding an adjourned
meeting need not be given, unless the meeting is adjourned for more than twenty-
four hours, in which case notice of the time and place shall be given before the
time of the adjourned meeting, in the manner specified in Section 7 of this
Article III, to the Directors who were not present at the time of the
adjournment.
Section 12. Action Without Meeting. Any action required or permitted
----------- -----------------------
to be taken by the Board may be taken without a meeting if all members of the
Board shall individually or collectively consent in writing to such action. Such
action by written consent shall have the same effect as a unanimous vote of the
Board. Such consent or consents shall be filed with the minutes of the
proceedings of the Board.
Section 13. Fees and Compensation. Directors and members of
----------- ----------------------
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
Board. This Section shall not be construed to preclude any director from serving
the corporation in any other capacity as an officer, agent, employee, or
otherwise, and receiving compensation for those services.
Section 14. Rights of Inspection. Every Director of the corporation
----------- ---------------------
shall have the absolute right at any reasonable time to inspect and copy all
books, records, and documents of every kind and to inspect the physical
properties of the corporation and also of its subsidiary corporations, domestic
or foreign. Such inspection by a Director may be made in person or by agent or
attorney and includes the right to copy and obtain extracts.
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ARTICLE IV
Officers
--------
Section 1. Officers. The officers of the Corporation shall be a
---------- ---------
President, a Vice President, a Secretary, and a Chief Financial Officer. The
corporation may also have, at the discretion of the Board, a Chairman of the
Board, a Vice Chairman of the Board, one or more Assistant Vice Presidents, one
or more Assistant Financial Officers, one or more Assistant Secretaries and such
other officers as may be elected or appointed in accordance with provisions of
Section 3 of this Article. One person may hold two or more offices, except those
of President and Chief Financial Officer.
Section 2. Election. The officers of the corporation, except such
---------- ---------
officers as may be elected or appointed in accordance with the provisions of
Section 3 or Section 5 of this Article, shall be chosen by, and shall serve at
the pleasure of, the Board, and shall hold their respective offices until their
resignation, removal, or other disqualification from service, or until their
respective successors shall be elected, subject to the rights, if any, of an
officer under any contract or employment.
Section 3. Subordinate Officers. The Board may elect, and may
---------- ---------------------
empower the President to appoint, such other officers as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority, and perform such duties as are provided in these By-Laws or as
the Board may from time to time determine.
Section 4. Removal and Resignation. Subject to the rights, if any,
---------- ------------------------
of an officer under any contract of employment, any officer may be removed,
either with or without cause, by the Board at any time, or, except in the case
of an officer chosen by the Board, by any officer upon whom such power of
removal may be conferred by the Board.
Any officer may resign at any time by giving written notice to the
corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
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Section 5. Vacancies. A vacancy in any office because of death,
---------- ----------
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in these By-Laws for regular election or appointment to such
office.
Section 6. Chairman of the Board. The Chairman of the Board, if
---------- ----------------------
there shall be such an officer, shall, if present, preside at all meetings of
the Board and of the shareholders, and exercise and perform such other powers
and duties as may be from time to time assigned by the Board.
Section 7. Vice Chairman. The Vice Chairman of the Board, if there
---------- --------------
shall be such an officer, shall in the absence of the Chairman of the Board of
Directors, preside at all meetings of the Board and of the shareholders, and
exercise and perform such other powers and duties as may be from time to time
assigned by the Board.
Section 8. President. Subject to such powers, if any, as may be
---------- ----------
given by the Board to the Chairman of the Board, if there be such an officer,
the President is the General Manager and Chief Executive Officer of the
corporation and has, subject to the control of the Board, general supervision,
direction, and control of the business and officers of the corporation. In the
absence of both the Chairman of the Board and the Vice Chairman, or if there be
none, the President shall preside at all meetings of the shareholders and at all
meetings of the Board. The President has the general powers and duties of
management usually vested in the office of President and General Manager of a
corporation and such other powers and duties as may be prescribed by the Board.
Section 9. Vice Presidents. In the absence or disability of the
---------- ----------------
President, the Vice Presidents in order of their rank as fixed by the Board or,
if not ranked, the Vice President designated by the Board, shall perform all the
duties of the President, and when so acting shall have all the powers of, and
be subject to all the restrictions upon, the President. The Vice Presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the Board or the By-Laws, and the
President, or the Chairman of the Board.
Section 10. Secretary. The Secretary shall keep or cause to be
----------- ----------
kept, at the principal office and such other place as the Board may order, a
book of minutes of all meetings of shareholders, the Board, and its committees,
with the time and place of holding, whether regular or
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special, and, if special, how authorized, the notice thereof given, the names of
those present or represented at shareholders' meetings, and the proceedings
thereof.
The Secretary shall keep, or cause to be kept, a copy of the By-Laws
of the corporation at the principal office or business office in accordance with
Section 213 of the California General Corporation Law. The Secretary shall keep,
or cause to be kept, at the principal office or at the office of the
Corporation's transfer agent or registrar, if one be appointed, a share
register, or a duplicate share register, showing the names of the shareholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the
meetings of the shareholders, of the Board and of any committees thereof
required by these By-Laws or by law to be given, shall keep the seal of the
corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board.
Section 11. Assistant Secretary. The Assistant Secretary or the
----------- --------------------
Assistant Secretaries, in the order of their seniority, shall, in the absence or
disability of the Secretary, or in the event of such officer's refusal to act,
perform the duties and exercise the powers and discharge such duties as may be
assigned from time to time by the President or by the Board of Directors.
Section 12. Chief Financial Officer. The Chief Financial Officer
----------- ------------------------
shall keep and maintain, or cause to be kept and maintained, adequate and
correct books and records of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares, and shall
send or cause to be sent to the shareholders of the corporation such financial
statements and reports as are by law or these By-Laws required to be sent to
them. The books of account shall at all times be open to inspection by any
Director of the corporation.
The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the Board. The Chief Financial Officer
shall disburse the funds of the Corporation as may be ordered by the Board,
shall render to the President and Directors, whenever they request it, an
account of all transactions as Treasurer and of the financial condition of the
corporation, and shall have such other powers and perform such other duties as
may be prescribed by the Board.
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Section 13. Assistant Financial Officer. The Assistant Financial
----------- ----------------------------
Officer or the Assistant Financial Officers, in the order of their seniority,
shall, in the absence or disability of the Chief Financial Officer, or in the
event of such officer's refusal to act, perform the duties and exercise the
powers of the Chief Financial Officer, and shall have such additional powers and
discharge such duties as may be assigned from time to time by the President or
by the Board of Directors.
Section 14. Salaries. The salaries of the officers shall be fixed
----------- ---------
from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that such officer is also a
Director of the corporation.
Section 15. Officers Holding More Than One Office. Any two or more
----------- --------------------------------------
offices, except those of President and Chief Financial Officer, may be held by
the same person, but no officer shall execute, acknowledge or verify any
instrument in more than one capacity.
Section 16. Inability to Act. In the case of absence or inability to
----------- -----------------
act of any officer of the corporation and of any person herein authorized to act
in his place, the Board may from time to time delegate the powers or duties of
such officer to any other officer, or any Director or other person whom it may
select.
ARTICLE V
Other Provisions
----------------
Section 1. Inspection of Corporate Records. The corporation shall
---------- --------------------------------
keep at its principal executive office a record of its shareholders, giving the
names and addresses of all shareholders and the number and class of shares held
by each shareholder. A shareholder or shareholders of the corporation holding at
least five percent (5%) in the aggregate of the outstanding voting shares of the
corporation may:
(a) Inspect and copy the record of shareholders; names and addresses
and shareholdings during usual business hours upon five business days prior
notice demand upon the corporation; or
(b) Obtain from the transfer agent, if any, for the corporation, upon
five business days prior written demand and upon the tender of its usual charges
for such a list (the amount of which charges shall be stated to the shareholder
by the transfer agent upon request), a list of
-16-
<PAGE>
the shareholders' names and addresses who are entitled to vote for the election
of directors and their shareholdings, as of the most recent record date for
which it has been compiled, or as of a date specified by the shareholder
subsequent to the date of demand.
Section 2. Inspection of By-Laws. The corporation shall keep in
---------- ----------------------
its principal office the original or a copy of these By-Laws as amended to date
which shall be open to inspection by shareholders at all reasonable times during
office hours.
Section 3. Endorsement of Documents; Contracts. Subject to the
---------- ------------------------------------
provisions of applicable law, any note, mortgage, evidence of indebtedness,
contract, share certificate, conveyance, or other instrument in writing and any
assignment or endorsements thereof executed or entered into between this
corporation and any other person, when signed by President or any Vice President
and the Treasurer or any Assistant Treasurer of this corporation shall be valid
and binding upon this corporation in the absence of actual knowledge on the part
of the other person that the signing officers had not the authority to execute
the same. Any such instruments may be signed by any other person or persons and
in such manner as from time to time shall be determined by the Board, and unless
so authorized by the Board, no officer, agent, or employee shall have any power
or authority to bind the corporation by any contract or engagement or to pledge
its credit or to render it liable for any purpose or amount.
Section 4. Certificates of Stock. Every holder of shares of the
---------- ----------------------
corporation shall be entitled to have a certificate signed in the name of the
corporation by the President or Vice President and by the Chief Financial
Officer or Assistant Financial Officer or by the Secretary or Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. None of the signatures on the certificates may be
facsimile. If any officer, transfer agent, or registrar who has signed a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if such person were an officer, transfer agent, or registrar at
the date of issue.
Except as provided in this Section, no new certificates for shares
shall be issued in lieu of an old one unless the latter is surrendered and
cancelled at the same time. The Board may, however, in case any certificate for
shares is alleged to have been lost, stolen, or destroyed, authorize the
issuance of a new certificate in lieu thereof,
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<PAGE>
and the corporation may require that the corporation be given a bond or other
adequate security sufficient to indemnify it against any claim that may be made
against it (including expense or liability) on account of the alleged loss,
theft, or destruction of such certificate or the issuance of such new
certificate.
Prior to the due presentment for registration of transfer in the stock
transfer book of the corporation, the registered owner shall be treated as the
person exclusively entitled to vote, to receive notifications and otherwise to
exercise all the rights and powers of an owner, except as expressly provided
otherwise by the laws of the State of California.
Section 5. Representation of Shares of Other Corporations. The
---------- -----------------------------------------------
President or any other officer or officers authorized by the Board or the
President are each authorized to vote, represent, and exercise on behalf of the
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the corporation. The authority herein
granted may be exercised by any such officer in person or by any other person
authorized to do so by proxy or power of attorney duly executed by said officer.
Section 6. Annual Report to Shareholders. Until such time as this
---------- ------------------------------
corporation has 100 or more holders of record of its shares (determined as
provided in Section 605 of the Corporations Code), the annual report to
shareholders referred to in Section 1501 of the California General Corporation
Law is expressly waived, but nothing herein shall be interpreted as prohibiting
the Board from issuing annual or other periodic reports to shareholders.
Section 7. Seal. The corporate seal of the corporation shall consist
---------- -----
of two concentric circles, between which shall be the name of the corporation,
and in the center shall be inscribed the word "Incorporated" and the date of its
incorporation.
Section 8. Fiscal Year. The fiscal year of this corporation shall
---------- ------------
begin on the first day of January and end on the 31st day of December of each
year.
Section 9. Construction and Definitions. Unless the context
---------- -----------------------------
otherwise requires, the general provisions, rules of construction, and
definitions contained in the California General Corporation Law shall govern the
construction of these By-Laws. Without limiting the generality of this
provision, the singular number includes the plural,
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<PAGE>
the plural number includes the singular, and the term "person" includes both a
corporation and a natural person.
Section 10. By-Law Provisions Contrary to or Inconsistent with
----------- --------------------------------------------------
Provisions of Law. Any article, section, subsection, subdivision, sentence,
- ------------------
clause or phrase of these By-Laws which, upon being construed in the manner
provided in Section 9 of this Article, shall be contrary to or inconsistent with
any applicable provision of the Accountancy Corporation Board of the State of
California or other applicable law of the State of California or of the United
States shall not apply so long as said provisions of law shall remain in effect,
but such result shall not affect the validity of applicability of any other
portions of these By-Laws, it being hereby declared that these By-Laws would
have been adopted and each article, section, subsection, subdivision, sentence,
clause or phrase thereof, irrespective of the fact that any one or more
articles, sections, subsections, subdivisions, sentences, clauses or phrases is
or are illegal.
ARTICLE VI
Indemnification
---------------
Section 1. Definitions. For the purposes of this Article, "agent",
---------- ------------
includes any person who is or was a Director, officer, employee, or other agent
of the corporation, or is or was serving at the request of the corporation as a
Director, officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise, or was a
Director, officer, employee, or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" includes any threatened,
pending, or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes without limitation
attorneys' fees and any expenses of establishing a right to indemnification
pursuant to law.
Section 2. Extent of Indemnification. The corporation shall, to the
---------- --------------------------
maximum extent permitted by the California General Corporation Law, advance
expenses to and indemnify each of its agents against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding arising by reason of the fact any such person is or was an
agent of the corporation.
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<PAGE>
Section 3. Insurance. The corporation shall have power to
---------- ----------
purchase and maintain insurance on behalf of any agent of the corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such whether or not the corporation
would have the power to indemnify the agent against such liability under the
provisions of this Article.
ARTICLE VII
Amendments
----------
Section 1. Amendment by Shareholders. New By-Laws may be adopted
---------- --------------------------
or these By-Laws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the Articles of the corporation set forth the number of
authorized Directors of the corporation, the authorized number of Directors may
be changed only by an amendment of the Articles.
Section 2. Amendment by Directors. Subject to the rights of the
---------- -----------------------
shareholders as provided in Section 1 of this Article VII, By-Laws, other than
a by-law or an amendment of a by-law changing the authorized number of
Directors, may be adopted, amended, or repealed by the Board of Directors.
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<PAGE>
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting secretary of GBC
Bancorp, A California Corporation; and
2. That the foregoing By-Laws, comprising 20 pages, constitute
the By-Laws of said corporation as duly adopted by action of the
Board of Directors of the Corporation duly taken on December 17,
1980.
/s/ Peter Wu
------------------------
PETER WU, Secretary
<PAGE>
AMENDMENT TO BY-LAWS
OF
GBC BANCORP
A California Corporation
The undersigned, Peter Wu, does hereby certify as follows:
1. I am the Secretary of GBC Bancorp, A California Corporation.
2. Article III, Section 2 of the By-Laws of GBC Bancorp with the approval of
the majority of its shareholders on February 16, 1983, amended such Section to
provide as follows:
Section 2. Number and Qualification of Directors. The authorized
--------------------------------------
number of Directors shall be not less than eleven (11) nor more
than nineteen (19) until changed by an amendment to this By-Law
adopted by the vote or written consent of holders of a majority
of the outstanding shares entitled to vote. The exact number of
Directors shall be fixed by the Board of Directors, until
changed, within the limits specified above, by a By-Law amending
this Section 2, duly adopted by the Board of Directors or by the
shareholders.
/s/ Peter Wu
------------------------------
PETER WU, Secretary
<PAGE>
AMENDMENT TO BY-LAWS
OF
GBC BANCORP
Article II, Section 8 of the By-Laws of GBC Bancorp with the approval of its
Board of Directors on February 18, 1993 is amended to read in its entirety as
follows:
"Section 8. Voting. The shareholders entitled to notice of any
---------- -------
meeting or to vote at any such meeting shall be only persons in whose
name shares stand on the stock records of the corporation on the
record date determined in accordance with Section 9 of this Article.
Voting shall in all cases be subject to the provisions of
Sections 702 through 704, inclusive, of the California General
Corporation Law (relating to voting shares held by a fiduciary, in the
name of a corporation, or in joint ownership).
The shareholders' vote may be by voice or ballot; provided,
however, that any election for Directors must be by ballot if demanded
by any shareholder before the voting has begun. On any matter other
than elections of Directors, any shareholder may vote part of the
shares in favor of the proposal and refrain from voting the remaining
shares or vote them against the proposal (other than the election of
Directors), but, if the shareholder fails to specify the number of
shares which the shareholder is voting affirmatively, it will be
conclusively presumed that the shareholder's approving vote is with
respect to all shares that the shareholder is entitled to vote. If a
quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on any matter shall be
the act of the shareholders, unless the vote of a greater number or
voting by classes is required by the California Corporation Law or by
the Articles of Incorporation.
No shareholder will be permitted to cumulate votes at any
election of Directors.
In any election of Directors, the candidates receiving the
highest number of votes of the shares entitled to be voted for them up
to the number of Directors to be elected, shall be elected."
<PAGE>
EXHIBIT 5.1
-----------
January 24, 2000
GBC Bancorp
800 West 6th Street
Los Angeles, California 90017
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on
Form S-8 (the "Registration Statement") to be filed by GBC Bancorp, a California
corporation (the "Company"), with the Securities and Exchange Commission (the
"SEC") in connection with the registration under the Securities Act of 1933, as
amended (the "Securities Act"), of 2,484,120 shares of the Company's common
stock (the "Common Stock") that may be issued in the aggregate pursuant to
awards granted under the Company's 1999 Employee Stock Incentive Plan (the
"Plan").
In rendering this opinion, we have examined only the following
documents:
1. The Articles of Incorporation of the Company, as amended, as
certified by the California Secretary of State as of
January 11, 2000;
2. The Bylaws of the Company, as amended, as certified by the
Secretary of the Company as of January 14, 2000;
3. The Plan;
<PAGE>
GBC Bancorp
January 24, 2000
Page 2
4. The forms of Incentive Stock Option Agreement, Non-Qualified
Stock Option Agreement and Restricted Stock Agreement
(collectively the "Agreements") to be used in connection with the
Plan;
5. Resolutions adopted by the Company's Board of Directors as of
January 11, 1999 and December 17, 1999, and by the shareholders
of the Company as of April 22, 1999, pertaining to the adoption
of the Plan, the Agreements and the Registration Statement; and
6. The Registration Statement.
With respect to the foregoing documents, we have assumed the genuiness
of all signatures, the authenticity of all documents submitted to us as
originals and the conformity to originals of all documents submitted to us as
certified or reproduced copies. We also have obtained from the officers of the
Company certificates as to all factual matters necessary for the purpose of this
opinion and, insofar as this opinion is based on such matters of fact, we have
relied on such certificates without independent investigation.
Based solely upon the foregoing and assuming, without further inquiry,
that (i) all awards granted under the Plan to date have been, and all awards to
be granted under the Plan will be, duly and validly granted in accordance with
the terms of the Plan, (ii) the consideration for the shares of Common Stock to
be issued pursuant to such awards will be received prior to the issuance
thereof, (iii) the shares of Common Stock to be issued pursuant to such awards
will be issued in accordance with the terms of the Plan and the applicable
Agreements, (iv) the Registration Statement will become effective under the
Securities Act prior to the issuance of any shares of Common Stock under the
Plan and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or be pending before the SEC, (v) prospectuses will be updated
and delivered to participants in the Plan as required by the Securities Act and
the rules and regulations promulgated by the SEC thereunder, and (vi) the grant
of awards under the Plan and the issuance of shares of Common Stock pursuant to
such awards will comply with the securities laws of each state or jurisdiction
applicable thereto (other than the Securities Act), upon which assumptions
<PAGE>
GBC Bancorp
January 24, 2000
Page 3
the following opinion is expressly conditioned, it is the opinion of the
undersigned that the 2,484,120 shares of Common Stock issuable by the Company
pursuant to awards granted pursuant to the Plan will be, when issued and
delivered against payment therefor in accordance with the Plan, the applicable
Agreements and the Registration Statement, duly authorized, validly issued,
fully paid and non-assessable.
This opinion is limited to the General Corporation Law of the State of
California and the Securities Act and the rules and regulations promulgated by
the SEC thereunder, to present judicial interpretations thereof and to facts as
they presently exist. In rendering this opinion, we have no obligation to revise
or supplement it should the current laws of the State of California or the
Securities Act or such rules and regulations be changed by legislative action,
judicial decision or otherwise or if we become aware of any facts that change
the opinion expressed herein after the date hereof.
This opinion is issued to you solely for use in connection with the
Registration Statement and is not to be quoted or otherwise referred to in any
financial statements of the Company or related document, nor is it to be filed
with or furnished to any government agency or other person, without the prior
written consent of the undersigned in each instance.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
<PAGE>
Exhibit 23.2
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of GBC Bancorp of our report dated February 26, 1999 on the
consolidated balance sheet of GBC Bancorp and Subsidiaries as of December 31,
1998, and the related consolidated statements of income, changes in
stockholders' equity, and cash flows for the year then ended, appearing in and
incorporated by reference in the Annual Report on Form 10-K of GBC Bancorp for
the year ended December 31, 1998.
Deloitte & Touche LLP
Los Angeles, California
January 24, 2000
<PAGE>
Exhibit 99.1
GBC BANCORP
1999 EMPLOYEE STOCK INCENTIVE PLAN
______________________________
Adopted as of April 22, 1999
Section 1. PURPOSE OF PLAN
The purpose of this 1999 Employee Stock Incentive Plan ("Plan") of GBC
Bancorp, a California corporation (the "Company"), is to enable the Company and
its subsidiaries to attract, retain and motivate their employees, nonemployee
directors and consultants by providing for or increasing the proprietary
interests of such employees, nonemployee directors and consultants in the
Company and, thereby, further align their interests with those of the
shareholders of the Company.
Section 2. PERSONS ELIGIBLE UNDER PLAN
Each of the following persons (each, a "Participant") shall be
eligible to be considered for the grant of Awards (as hereinafter defined)
hereunder: (1) any employee of the Company or any of its subsidiaries or any
other entity in which the Company has a significant equity or other interest as
determined by the Committee (as hereinafter defined), including any director who
is also such an employee, (2) any director of the Company or any of its
subsidiaries who is not also an employee of the Company or any of its
subsidiaries (a "Nonemployee Director") and (3) any consultant of the Company or
any of its subsidiaries.
Section 3. AWARDS
(a) The Committee, on behalf of the Company, is authorized under this
Plan to enter into any type of arrangement with a Participant that is not
inconsistent with the provisions of this Plan and that, by its terms, involves
or might involve the issuance of (i) shares of common stock of the Company
("Common Shares") or (ii) a Derivative Security (as such term is defined in Rule
16a-1 promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as such rule may be amended from time to time) with an exercise
or conversion privilege at a price related to the Common Shares or with a value
derived from the value of the Common Shares. The entering into of any such
arrangement is referred to herein as the "grant" of an "Award."
-1-
<PAGE>
(b) Awards are not restricted to any specified form or structure and
may include, without limitation, sales or bonuses of stock, restricted stock,
stock options, reload stock options, stock purchase warrants, other rights to
acquire stock, securities convertible into or redeemable for stock, stock
appreciation rights, phantom stock, dividend equivalents, performance units or
performance shares, and an Award may consist of one such security or benefit, or
two or more of them in tandem or in the alternative.
(c) Awards may be issued, and Common Shares may be issued pursuant to
an Award, for any lawful consideration as determined by the Committee,
including, without limitation, services rendered by the recipient of such Award.
(d) Subject to the provisions of this Plan, the Committee, in its sole
and absolute discretion, shall determine all of the terms and conditions of each
Award granted under this Plan, which terms and conditions may include, among
other things:
(i) a provision permitting the recipient of such Award,
including any recipient who is a director or officer of the Company, to pay
the purchase price of the Common Shares or other property issuable pursuant
to such Award, or such recipient's tax withholding obligation with respect
to such issuance, in whole or in part, by any one or more of the following:
(A) the delivery of cash;
(B) the delivery of other property deemed acceptable by the
Committee;
(C) the delivery of previously owned shares of capital stock
of the Company (including "pyramiding") or other property;
(D) a reduction in the amount of Common Shares or other
property otherwise issuable pursuant to such Award;
(E) authorizing a third party to sell Common Shares or other
property otherwise issuable pursuant to such Award and to remit to the
Company a sufficient portion of the sale proceeds to pay for all the
Common Shares acquired through such exercise or any tax withholding
obligation resulting from such exercise; or
(F) crediting toward the purchase price a portion of the
recipient's deferred compensation account balance;
-2-
<PAGE>
(ii) a provision conditioning or accelerating the receipt of
benefits pursuant to such Award, either automatically or in the discretion
of the Committee, upon the occurrence of specified events, including,
without limitation, a change of control of the Company (as defined by the
Committee), an acquisition of a specified percentage of the voting power of
the Company, the dissolution or liquidation of the Company, a sale of
substantially all of the property and assets of the Company or an event of
the type described in Section 7 hereof; or
(iii) a provision required in order for such Award to qualify as
an incentive stock option (an "Incentive Stock Option") under Section 422
of the Internal Revenue Code of 1986, as amended (the "Code"); provided,
--------
however, that no Award issued to any consultant or any Nonemployee Director
-------
may qualify as an Incentive Stock Option.
(e) All certificates evidencing Awards or Common Shares issued
pursuant thereto shall bear any legend determined by the Committee to be
necessary or appropriate.
Section 4. STOCK SUBJECT TO PLAN
(a) Subject to adjustment as provided in Section 7, at any time, the
aggregate number of Common Shares issued and issuable pursuant to all Awards
granted under this Plan shall not exceed the sum of (i) 1,000,000, including any
Common Shares issuable pursuant to that certain Employment Agreement dated as of
January 1, 1998, between the Company and Li-Pei Wu, as the same may be amended
from time to time, (ii) any Common Shares available for future awards under any
prior plan of the Company as of the effective date of the Plan and (iii) any
Common Shares subject to awards granted under any prior plan of the Company
which are forfeited, expire or are canceled without delivery of Common Shares.
(b) For purposes of Section 4(a) hereof, the aggregate number of
Common Shares issued and issuable pursuant to Awards granted under this Plan
shall at any time be deemed to be equal to the sum of the following:
(i) the number of Common Shares that were issued prior to such
time pursuant to Awards granted under this Plan, other than Common Shares
that were subsequently reacquired by the Company pursuant to the terms and
conditions of such Awards and with respect to which the holder thereof
received no benefits of ownership such as dividends; plus
(ii) the number of Common Shares that were otherwise issuable
prior to such time pursuant to Awards granted under this Plan, but that
were
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<PAGE>
withheld by the Company as payment of the purchase price of the Common
Shares issued pursuant to such Awards or as payment of the recipient's tax
withholding obligation with respect to such issuance; plus
(iii) the maximum number of Common Shares that are or may be
issuable at or after such time pursuant to Awards granted under this Plan
prior to such time.
Section 5. DURATION OF PLAN
No Awards shall be made under this Plan after April 22, 2009.
Although Common Shares may be issued after April 22, 2009 pursuant to Awards
made prior to such date, no Common Shares shall be issued under this Plan after
April 22, 2019.
Section 6. ADMINISTRATION OF PLAN
(a) This Plan shall be administered by the Board of Directors of the
Company (the "Board") or, at the election for the Board, by a committee of the
Board consisting of two or more directors, each of whom is an "outside director"
within the meaning of Section 162(m) of the Code, and who otherwise comply with
the requirements of Rule 16b-3 promulgated under the Exchange Act. The term
"Committee" shall mean the Board or any such committee of the Board which shall
have been designated by the Board to administer this Plan.
(b) Subject to the provisions of this Plan, the Committee shall be
authorized and empowered to do all things necessary or desirable in connection
with the administration of this Plan, including, without limitation, the
following:
(i) adopt, amend and rescind rules and regulations relating to
this Plan;
(ii) determine which persons are Participants and to which of
such Participants, if any, Awards shall be granted hereunder;
(iii) grant Awards to Participants and determine the terms and
conditions thereof, including the number of Common Shares issuable pursuant
thereto, any performance or vesting contingencies and the terms of any
transferability of such Awards;
(iv) determine whether, and the extent to which adjustments are
required pursuant to Section 7 hereof;
-4-
<PAGE>
(v) interpret and construe this Plan and the terms and
conditions of any Award granted hereunder; and
(vi) certify in writing prior to payment of compensation that
the performance goals and any other material terms of an Award were in fact
satisfied. For this purpose, approved minutes of the Committee meeting in
which the certification is made are treated as a written certification.
Section 7. ADJUSTMENTS
If the outstanding securities of the class then subject to this Plan
are increased, decreased or exchanged for or converted into cash, property or a
different number or kind of securities, or if cash, property or securities are
distributed in respect of such outstanding securities, in either case as a
result of a reorganization, merger, consolidation, recapitalization,
restructuring, reclassification, dividend (other than a regular cash dividend)
or other distribution, stock split, reverse stock split or the like, or if
substantially all of the property and assets of the Company are sold, then,
unless the terms of such transaction shall do so, the Committee shall make
appropriate and proportionate adjustments in (i) the number and type of shares
or other securities or cash or other property that may be acquired pursuant to
Awards theretofore granted under this Plan and (ii) the maximum number and type
of shares or other securities that may be issued pursuant to Awards thereafter
granted under this Plan.
Section 8. AMENDMENT, SUSPENSION AND TERMINATION OF PLAN
The Board may amend, suspend or terminate this Plan at any time and in
any manner, provided that no such amendment, suspension or termination shall
impair, or deprive the recipient of, any Award theretofore granted under this
Plan, without the consent of such recipient, of any of his or her rights
thereunder or with respect thereto.
Section 9. EFFECTIVE DATE OF PLAN
This Plan shall be effective as of April 22, 1999, the date upon which
it was approved by the affirmative votes of the holders of a majority of the
securities of the Company present, or represented, and entitled to vote at a
meeting duly held in accordance with the laws of the State of California.
-5-
<PAGE>
Section 10. GOVERNING LAW
This Plan and any Award granted hereunder shall be governed by and
construed and enforced in accordance with the laws of the State of California
without reference to choice or conflict of law principles.
-6-
<PAGE>
Exhibit 99.2
GBC BANCORP
1999 EMPLOYEE STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between GBC Bancorp, a California
corporation (the "Company"), and the person named below ("Employee").
WHEREAS, Employee is an employee of the Company or one or more of its
subsidiaries; and
WHEREAS, pursuant to the Company's 1999 Employee Stock Incentive Plan
(the "Plan"), the Board of Directors of the Company, or the committee of the
Board of Directors administering the Plan (the "Committee"), has approved the
grant to Employee of an option to purchase shares of the common stock of the
Company (the "Common Stock"), on the terms and conditions set forth herein; and
WHEREAS, the amount of compensation the recipient of the Option (as
defined below) could receive hereunder is based solely on an increase in the
value of the stock of the Company after the date of the grant;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Grant of Option; Certain Terms and Conditions. The Company hereby
---------------------------------------------
grants to Employee, and Employee hereby accepts, as of the Date of Grant, an
option to purchase the number of shares of Common Stock indicated below (the
"Option Shares") at the Exercise Price per share indicated below, which option
shall expire at 5:00 p.m., California time, on the Expiration Date indicated
below and shall be subject to all of the terms and conditions set forth in this
Agreement (the "Option"). On each anniversary of the Date of Grant, the Option
shall become exercisable to purchase, and shall vest with respect to, that
number of Option Shares (rounded to the nearest whole
-1-
<PAGE>
share) equal to the total number of Option Shares multiplied by the Annual
Vesting Rate indicated below.
Employee: _____________________
Date of Grant: _____________________
Number of shares purchasable: _____________________
Exercise Price per share: _____________________
Expiration Date: _____________________
Annual Vesting Rate: ____________________%
The Option is intended to qualify as an incentive stock option under Section 422
of the Internal Revenue Code of 1986, as amended (an "Incentive Stock Option"),
and consequently:
(i) the Expiration Date shall not be more than ten years after
the Date of Grant and the Exercise Price per share shall not be less than
the Fair Market Value (as defined below) per share on the Date of Grant;
provided, however, that if, on the Date of Grant, Employee owns (after
application of the family and other attribution rules of Section 425(d) of
the Internal Revenue Code of 1986, as amended) more than 10% of the total
combined voting power of all classes of stock of the Company or of its
parent or subsidiary corporations, then the Expiration Date shall not be
more than five years after the Date of Grant and the Exercise Price per
share shall not be less than 110% of the Fair Market Value per share on the
Date of Grant; and
(ii) the aggregate Fair Market Value (determined as of the date
such options are granted) of the shares of Common Stock with respect to
which Incentive Stock Options are exercisable for the first time by
Employee during any calendar year (under the Plan and all other stock
option plans of the Company and its parent and subsidiary corporations)
shall not exceed $100,000.
2. Acceleration and Termination of Option.
--------------------------------------
(a) Termination of Employment.
(i) Termination Within One Year After Change of Control. In
-------------------------------------------------------
the event that Employee shall cease to be an employee of the Company or any
of
-2-
<PAGE>
its subsidiaries (such event shall be referred to herein as the
"Termination" of Employee's "Employment") for any reason, or for no reason
(other than if Employee's Employment is Terminated as the result of
malfeasance or gross misfeasance in the performance of duties, or
conviction of illegal activity in connection therewith or conviction of a
felony), within one year after a Change of Control (as hereinafter
defined), then (A) the portion of the Option that has not vested on or
prior to the date of such Termination of Employment shall fully vest on
such date and (B) the Option shall terminate upon the earlier of the
Expiration Date or three months after the date of such Termination of
Employment. "Change of Control" shall mean the first to occur of the
following events:
(A) any date upon which the directors of the Company who were
last nominated by the Board of Directors (the "Board") for election as
directors cease to constitute a majority of the directors of the
Company;
(B) the date of the first public announcement that any person or
entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 50% or more of the voting power
of the Company (a "50% Stockholder"); provided, however, that the
--------- -------
terms "person" and "entity," as used in this clause (B), shall not
include (1) the Company or any of its subsidiaries, (2) any employee
benefit plan of the Company or any of its subsidiaries, (3) any entity
holding voting securities of the Company for or pursuant to the terms
of any such plan, or (4) any person or entity who was a 50%
Stockholder on the date of adoption of the Plan by the Board; or
(C) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose
of which is to change the Company's domicile solely within the United
States) the consummation of which results in the outstanding
securities of any class then subject to the Option being exchanged for
or converted into cash, property or a different kind of securities;
provided, however, that a Change of Control shall not be deemed to
-------- -------
occur if, as a result of such reorganization, merger or consolidation
of the Company, the securities of any class then subject to the Option
(the "Option Securities") are exchanged for or converted into
securities that represent the same beneficial ownership of the Company
and possess the same voting,
-3-
<PAGE>
liquidation and other rights to which the Option Securities were
entitled immediately prior to such reorganization, merger or
consolidation.
(ii) Retirement. If Employee's Employment is Terminated by
----------
reason of Employee's retirement in accordance with the Company's then
current retirement policy ("Retirement"), and a Change of Control shall not
have occurred within one year prior thereto, then (A) the portion of the
Option that has not vested on or prior to the date of such Retirement shall
terminate on such date and (B) the remaining vested portion of the Option
shall terminate on the earlier of the Expiration Date or the date three (3)
months after the date of such Termination of Employment.
(iii) Death or Permanent Disability. If Employee's
-----------------------------
Employment is Terminated by reason of the death or Permanent Disability (as
hereinafter defined) of Employee, and a Change of Control shall not have
occurred within one year prior thereto, then (A) the portion of the Option
that has not vested on or prior to the date of such Termination of
Employment shall terminate on such date and (B) the remaining vested
portion of the Option shall terminate upon the earlier of the Expiration
Date or the first anniversary of the date of such Termination of
Employment. "Permanent Disability" shall mean the inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous period of not
less than 12 months. Employee shall not be deemed to have a Permanent
Disability until proof of the existence thereof shall have been furnished
to the Committee in such form and manner, and at such times, as the
Committee may require. Any determination by the Committee that Employee
does or does not have a Permanent Disability shall be final and binding
upon the Company and Employee.
(iv) Cause. If Employee's Employment is Terminated for "Cause"
-----
(as hereinafter defined), and a Change of Control shall not have occurred
within one year prior thereto, then the Option shall terminate upon the
date of such Termination of Employment, unless such termination is waived
by the Committee. "Cause" shall include malfeasance or gross misfeasance in
the performance of duties, or conviction of illegal activity in connection
therewith, conviction for a felony or any conduct detrimental to the
interests of the Company or any of its subsidiaries, and the determination
of the Committee with respect thereto shall be final and conclusive.
(v) Other Termination. If Employee's Employment is Terminated
-----------------
for no reason, or for any reason other than Retirement, death, Permanent
Disability or Cause, and a Change of Control shall not have occurred within
one year prior
-4-
<PAGE>
thereto, then (A) the portion of the Option that has not vested on or prior
to the date of such Termination of Employment shall terminate on such date
and (B) the remaining vested portion of the Option shall terminate on the
earlier of the Expiration Date or the date three (3) months after the date
of such Termination of Employment.
(b) Death Following Termination of Employment. Notwithstanding
anything to the contrary contained in this Agreement, if Employee shall die at
any time after the Termination of his or her Employment and prior to the
Expiration Date, then (i) the portion of the Option that has not vested on or
prior to the date of such death shall terminate on such date and (ii) the
remaining vested portion of the Option shall terminate on the earlier of the
Expiration Date or the first anniversary of the date of such death.
(c) Other Events Causing Acceleration of Option. The Committee,
in its sole discretion, may accelerate the exercisability of the Option at any
time and for any reason.
(d) Other Events Causing Termination of Option. Notwithstanding
anything to the contrary contained in this Agreement, the Option shall terminate
upon the consummation of any of the following events, or, if later, the
thirtieth day following the first date upon which such event shall have been
approved by both the Board and the shareholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets
of the Company.
3. Adjustments. In the event that the outstanding securities of
-----------
the class then subject to the Option are increased, decreased or exchanged for
or converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, or in the event that substantially all of the property and assets
of the Company are sold, then, unless such event shall cause the Option to
terminate pursuant to Section 2(d) hereof, the Committee shall make appropriate
and proportionate adjustments in the number and type of shares or other
securities or cash or other property that may thereafter be acquired upon the
exercise of the Option; provided, however, that any such adjustments in the
-------- -------
Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
-5-
<PAGE>
4. Exercise.
---------
(a) The Option shall be exercisable during Employee's lifetime
only by Employee or by his or her guardian or legal representative, and after
Employee's death only by the person or entity entitled to do so under Employee's
last will and testament or applicable intestate law. The Option may only be
exercised by the delivery to the Company of a written notice of such exercise,
which notice shall specify the number of Option Shares to be purchased (the
"Purchased Shares") and the aggregate Exercise Price for such shares (the
"Exercise Notice"), together with payment in full of such aggregate Exercise
Price in cash or by check payable to the Company; provided, however, that
-------- --------
payment of such aggregate Exercise Price may instead be made, in whole or in
part, by (i) the delivery to the Company of a certificate or certificates
representing shares of Common Stock, duly endorsed or accompanied by duly
executed stock powers, which delivery effectively transfers to the Company good
and valid title to such shares, free and clear of any pledge, commitment, lien,
claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value (as defined below) thereof on the date of such
exercise), provided that the Company is not then prohibited from purchasing or
acquiring such shares of Common Stock, or (ii) the Employee authorizing a third
party to sell a portion of the Purchased Shares and remitting to the Company a
sufficient portion of the sale proceeds to pay the entire Exercise Price and any
tax withholding resulting from such exercise.
(b) The "Fair Market Value" of a Common Share on any date (the
"Determination Date") shall be equal to the closing price per Common Share on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if no
closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share on the business day immediately preceding the
Determination Date in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use, or, if the Common Shares were not quoted by
any such organization on such immediately preceding business day, the average of
the closing bid and asked prices on such day as furnished by a professional
market maker making a market in the Common Shares selected by the Board.
5. Payment of Withholding Taxes. If the Company becomes obligated to
----------------------------
withhold an amount on account of any tax imposed as a result of the exercise of
the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Employee shall, on the first day upon which the Company becomes
obligated to pay such amount to the
-6-
<PAGE>
appropriate taxing authority, pay such amount to the Company in cash or by check
payable to the Company. At the election of Employee and subject to such rules as
the Company may establish, such withholding obligations may be satisfied through
the surrender of Common Shares which Employee already owns or to which Employee
otherwise is entitled under the Plan.
6. Notices. All notices and other communications required or
-------
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
800 West 6th Street, Los Angeles, California 90017, Attention: Chief Executive
Officer, or to Employee at the address set forth beneath his or her signature on
the signature page hereto, or at such other addresses as they may designate by
written notice in the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding
--------------------------------------------
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (i) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (ii) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Transferability. Neither the Option nor any interest therein may
---------------
be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution.
9. Plan. The Option is granted pursuant to the Plan, as in
----
effect on the Date of Grant, and is subject to all the terms and conditions of
the Plan, as the same may be amended from time to time; provided, however, that
-------- -------
no such amendment shall deprive Employee, without his or her consent, of the
Option or of any of Employee's rights under this Agreement. The interpretation
and construction by the Committee of the Plan, this Agreement, the Option and
such rules and regulations as may be adopted by the Committee for the purpose of
administering the Plan shall be final and binding upon Employee. Until the
Option shall expire, terminate or be exercised in full, the Company shall, upon
written request therefor, send a copy of the Plan, in its then-current form, to
Employee or any other person or entity then entitled to exercise the Option.
10. Shareholder Rights. No person or entity shall be entitled to vote,
------------------
receive dividends or be deemed for any purpose the holder of any Option Shares
until the
-7-
<PAGE>
Option shall have been duly exercised to purchase such Option Shares in
accordance with the provisions of this Agreement.
11. Employment or Contract Rights. No provision of this Agreement or
------------------------------
of the Option granted hereunder shall (i) confer upon Employee any right to
continue in the employ of or contract with the Company or any of its
subsidiaries, (ii) affect the right of the Company and each of its subsidiaries
to terminate the employment or contract of Employee, with or without cause, or
(iii) confer upon Employee any right to participate in any employee welfare or
benefit plan or other program of the Company or any of its subsidiaries other
than the Plan. Employee hereby acknowledges and agrees that the Company and each
of its subsidiaries may terminate the employment or contract of Employee at any
time and for any reason, or for no reason, unless Employee and the Company or
such subsidiary are parties to a written employment or independent contractor
agreement that expressly provides otherwise.
12. Governing Law. This Agreement and the Option granted hereunder
-------------
shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
-8-
<PAGE>
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement as of the Date of Grant.
GBC BANCORP
By _______________________________
Authorized Representative
EMPLOYEE
__________________________________
Signature
__________________________________
Printed Name
__________________________________
Street Address
__________________________________
City, State and Zip Code
__________________________________
Social Security Number
<PAGE>
Exhibit 99.3
GBC BANCORP
1999 EMPLOYEE STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between GBC Bancorp, a California
corporation (the "Company"), and the person named below ("Participant").
WHEREAS, Participant is an employee, director or consultant of the
Company or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's 1999 Employee Stock Incentive Plan
(the "Plan"), the Board of Directors of the Company, or the committee of the
Board of Directors administering the Plan (the "Committee"), has approved the
grant to Participant of an option to purchase shares of the common stock of the
Company (the "Common Stock"), on the terms and conditions set forth herein; and
WHEREAS, the amount of compensation the recipient of the Option (as
defined below) could receive hereunder is based solely on an increase in the
value of the stock of the Company after the date of the grant;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Grant Of Option; Certain Terms and Conditions. The Company hereby
---------------------------------------------
grants to Participant, and Participant hereby accepts, as of the Date of Grant,
an option to purchase the number of shares of Common Stock indicated below (the
"Option Shares") at the Exercise Price per share indicated below, which option
shall expire at 5:00 p.m., California time, on the Expiration Date indicated
below and shall be subject to all of the terms and conditions set forth in this
Agreement (the "Option"). On each anniversary of the Date of Grant, the Option
shall become exercisable to purchase, and shall vest with respect to, that
number of Option Shares (rounded to the nearest whole
-1-
<PAGE>
share) equal to the total number of Option Shares multiplied by the Annual
Vesting Rate indicated below.
Participant: ____________________
Date of Grant: _____________________
Number of shares purchasable: _____________________
Exercise Price per share: _____________________
Expiration Date: _____________________
Annual Vesting Rate: ____________________%
The Option is not intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Acceleration and Termination of Option.
--------------------------------------
(a) Termination of Employment.
(i) Termination Within One Year After Change of Control. In
---------------------------------------------------
the event that Participant shall cease to be an employee, director or
consultant of the Company or any of its subsidiaries (such event shall
be referred to herein as the "Termination" of Participant's
"Employment") for any reason, or for no reason (other than with
respect to an employee or consultant, if such Participant's Employment
is terminated as the result of malfeasance or gross misfeasance in the
performance of duties, or conviction of illegal activity in connection
therewith or conviction of a felony, or with respect to a non-employee
director, if such Participant's Employment is terminated as a result
of such Participant being declared of unsound mind by a order of court
or convicted of a felony), within one year after a Change of Control
(as hereinafter defined), then (A) the portion of the Option that has
not vested on or prior to the date of such Termination of Employment
shall fully vest on such date and (B) the Option shall terminate upon
the earlier of the Expiration Date or three months after the date of
such Termination of Employment. "Change of Control" shall mean the
first to occur of the following events:
-2-
<PAGE>
(A) any date upon which the directors of the Company who
were last nominated by the Board of Directors (the "Board") for
election as directors cease to constitute a majority of the directors
of the Company;
(B) the date of the first public announcement that any
person or entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 50% or more of the voting power
of the Company (a "50% Stockholder"); provided, however, that the
-------- -------
terms "person" and "entity," as used in this clause (B), shall not
include (1) the Company or any of its subsidiaries, (2) any employee
benefit plan of the Company or any of its subsidiaries, (3) any entity
holding voting securities of the Company for or pursuant to the terms
of any such plan, or (4) any person or entity who was a 50%
Stockholder on the date of adoption of the Plan by the Board; or
(C) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or consolidation the sole
purpose of which is to change the Company's domicile solely within the
United States) the consummation of which results in the outstanding
securities of a ny class then subject to the Option being exchanged
for or converted into cash, property or a different kind of
securities; provided, however, that a Change of Control shall not be
-------- -------
deemed to occur if, as a result of such reorganization, merger or
consolidation of the Company, the securities of any class then subject
to the Option (the "Option Securities") are exchanged for or converted
into securities that represent the same beneficial ownership of the
Company and possess the same voting, liquidation and other rights to
which the Option Securities were entitled immediately prior to such
reorganization, merger or consolidation.
(ii) Retirement. If Participant's Employment is Terminated by
----------
reason of Participant's retirement in accordance with the Company's then
current retirement policy ("Retirement"), and a Change of Control shall not
have occurred within one year prior thereto, then (A) the portion of the
Option that has not vested on or prior to the date of such Retirement shall
terminate on such date and (B) the remaining vested portion of the Option
shall terminate on the earlier of the Expiration Date or the date three (3)
months after the date of such Termination of Employment .
-3-
<PAGE>
(iii) Death or Permanent Disability. If Participant's
-----------------------------
Employment is Terminated by reason of the death or Permanent
Disability (as hereinafter defined) of Participant, and a Change of
Control shall not have occurred within one year prior thereto, then
(A) the portion of the Option that has not vested on or prior to the
date of such Termination of Employment shall terminate on such date
and (B) the remaining vested portion of the Option shall terminate
upon the earlier of the Expiration Date or the first anniversary of
the date of such Termination of Employment. "Permanent Disability"
shall mean the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment
that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months.
Participant shall not be deemed to have a Permanent Disability until
proof of the existence thereof shall have been furnished to the
Committee in such form and manner, and at such times, as the Committee
may require. Any determination by the Committee that Participant does
or does not have a Permanent Disability shall be final and binding
upon the Company and Participant.
(iv) Cause. If Participant's Employment is Terminated for
-----
"Cause" (as hereinafter defined), and a Change of Control shall not
have occurred within one year prior thereto, then the Option shall
terminate upon the date of such Termination of Employment, unless such
termination is waived by the Committee. "Cause" shall include (i) with
respect to an employee or consultant of the Company, malfeasance or
gross misfeasance in the performance of duties, or conviction of
illegal activity in connection therewith, conviction for a felony or
any conduct detrimental to the interests of the Company or any of its
subsidiaries, and the determination of the Committee with respect
thereto shall be final and conclusive and (ii) with respect to a non-
employee director of the Company, declaration that such director is of
unsound mind by an order of court or conviction of a felony.
(v) Other Termination. If Participant's Employment is
-----------------
Terminated for no reason, or for any reason other than Retirement,
death, Permanent Disability or Cause, and a Change of Control shall not
have occurred within one year prior thereto, then (A) the portion of
the Option that has not vested on or prior to the date of such
Termination of Employment shall terminate on such date and (B) the
remaining vested portion of the Option shall terminate on the earlier
of the Expiration Date or the date three (3) months after the date of
such Termination of Employment.
(b) Death Following Termination of Employment. Notwithstanding
anything to the contrary contained in this Agreement, if Participant shall die
at any time after the Termination of his or her Employment and prior to the
Expiration Date, then
-4-
<PAGE>
(i) the portion of the Option that has not vested on or prior to the date of
such death shall terminate on such date and (ii) the remaining vested portion of
the Option shall terminate on the earlier of the Expiration Date or the first
anniversary of the date of such death.
(c) Other Events Causing Acceleration of Option. The Committee, in
its sole discretion, may accelerate the exercisability of the Option at any time
and for any reason.
(d) Other Events Causing Termination of Option. Notwithstanding
anything to the contrary contained in this Agreement, the Option shall terminate
upon the consummation of any of the following events, or, if later, the
thirtieth day following the first date upon which such event shall have been
approved by both the Board and the shareholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets of
the Company.
3. Adjustments. In the event that the outstanding securities of the
-----------
class then subject to the Option are increased, decreased or exchanged for or
converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, or in the event that substantially all of the property and assets
of the Company are sold, then, unless such event shall cause the Option to
terminate pursuant to Section 2(d) hereof, the Committee shall make appropriate
and proportionate adjustments in the number and type of shares or other
securities or cash or other property that may thereafter be acquired upon the
exercise of the Option; provided, however, that any such adjustments in the
-------- -------
Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
4. Exercise.
--------
(a) Subject to Section 8, the Option shall be exercisable during
Participant's lifetime only by Participant or by his or her guardian or legal
representative, and after Participant's death only by the person or entity
entitled to do so under Participant's last will and testament or applicable
intestate law. The Option may only be exercised by (i) the delivery to the
Company of a written notice of such exercise, which notice shall specify the
number of Option Shares to be purchased (the "Purchased Shares") and the
aggregate Exercise Price for such shares (the "Exercise Notice"), together with
-5-
<PAGE>
payment in full of such aggregate Exercise Price in cash or by check payable to
the Company; provided, however, that payment of such aggregate Exercise Price
-------- -------
may instead be made, in whole or in part, by (i) the delivery to the Company of
a certificate or certificates representing shares of Common Stock, duly endorsed
or accompanied by duly executed stock powers, which delivery effectively
transfers to the Company good and valid title to such shares, free and clear of
any pledge, commitment, lien, claim or other encumbrance (such shares to be
valued on the basis of the aggregate Fair Market Value (as defined below)
thereof on the date of such exercise), provided that the Company is not then
prohibited from purchasing or acquiring such shares of Common Stock, or (ii) the
Participant authorizing a third party to sell a portion of the Purchased Shares
and remitting to the Company a sufficient portion of the sale proceeds to pay
the entire Exercise Price and any tax withholding resulting from such exercise.
(b) The "Fair Market Value" of a Common Share on any date (the
"Determination Date") shall be equal to the closing price per Common Share on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if no
closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share on the business day immediately preceding the
Determination Date in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use, or, if the Common Shares were not quoted by
any such organization on such immediately preceding business day, the average of
the closing bid and asked prices on such day as furnished by a professional
market maker making a market in the Common Shares selected by the Board.
5. Payment of Withholding Taxes. If the Company becomes obligated to
----------------------------
withhold an amount on account of any tax imposed as a result of the exercise of
the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Participant shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company. At the
election of the Participant, and subject to such rules as the Company may
establish, such withholding obligations may be satisfied through the surrender
of Common Shares which the Participant already owns or to which the Participant
otherwise is entitled under the Plan.
6. Notices. All notices and other communications required or
-------
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage
-6-
<PAGE>
prepaid, return receipt requested, to the Company at 800 West 6th Street, Los
Angeles, California 90017, Attention: Chief Executive Officer, or to Participant
at the address set forth beneath his or her signature on the signature page
hereto, or at such other addresses as they may designate by written notice in
the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding
--------------------------------------------
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (i) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (ii) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Transferability. Neither the Option nor any interest therein may
---------------
be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution; provided, however, that the Participant, may transfer the Option
-------- -------
for no consideration to or for the benefit of the Participant's Immediate Family
(including, without limitation, to a trust for the benefit of the Participant's
Immediate Family or to a partnership or limited liability company for one or
more members of the Participant's Immediate Family), subject to such limits as
the Committee may establish, and the transferee shall remain subject to the
terms and conditions applicable to the Option prior to such transfer. The
foregoing right to transfer the Option shall apply to the right to consent to
amendments to this Agreement and, in the discretion of the Committee, shall also
apply to the right to transfer ancillary rights associated with the Option. The
term "Immediate Family" shall mean the Participant's spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers and grandchildren (and,
for this purpose, shall also include the Participant)
9. Plan. The Option is granted pursuant to the Plan, as in effect on
----
the Date of Grant, and is subject to all the terms and conditions of the Plan,
as the same may be amended from time to time; provided, however, that no such
amendment shall deprive Participant, without his or her consent, of the Option
or of any of Participant's rights under this Agreement. The interpretation and
construction by the Committee of the Plan, this Agreement, the Option and such
rules and regulations as may be adopted by the Committee for the purpose of
administering the Plan shall be final and binding upon Participant. Until the
Option shall expire, terminate or be exercised in full, the Company shall, upon
written request therefor, send a copy of the Plan, in its then-current form, to
Participant or any other person or entity then entitled to exercise the Option.
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<PAGE>
10. Shareholder Rights. No person or entity shall be entitled to
------------------
vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. Employment or Contract Rights. No provision of this Agreement or
-----------------------------
of the Option granted hereunder shall (i) confer upon Participant any right to
continue in the employ of or contract with the Company or any of its
subsidiaries, (ii) affect the right of the Company and each of its subsidiaries
to terminate the employment or contract of Participant, with or without cause,
or (iii) confer upon Participant any right to participate in any employee
welfare or benefit plan or other program of the Company or any of its
subsidiaries other than the Plan. Participant hereby acknowledges and agrees
that the Company and each of its subsidiaries may terminate the employment or
contract of Participant at any time and for any reason, or for no reason, unless
Participant and the Company or such subsidiary are parties to a written
employment or independent contractor agreement that expressly provides
otherwise.
12. Governing Law. This Agreement and the Option granted hereunder
-------------
shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Grant.
GBC BANCORP
By ________________________________
Authorized Representative
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<PAGE>
PARTICIPANT
___________________________________
Signature
___________________________________
Printed Name
___________________________________
Street Address
___________________________________
City, State and Zip Code
___________________________________
Social Security Number
-9-
<PAGE>
EXHIBIT 99.4
GBC BANCORP
1999 EMPLOYEE STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
--------------------------
This Restricted Stock Agreement ("Agreement") is made and
entered into as of the Date of Award indicated below by and between GBC Bancorp,
a California corporation (the "Company"), and the person named below
("Participant").
WHEREAS, Participant is an employee, director or consultant of
the Company or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's 1999 Employee Stock Incentive
Plan (the "Plan"), the Board of Directors of the Company, or the committee of
the Board of Directors administering the Plan (the "Committee"), has approved
the award to Participant of the right to acquire shares of the common stock of
the Company (the "Common Stock"), on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and
the covenants set forth herein, the parties hereto hereby agree as follows:
1. Award; Certain Terms and Conditions. The Company hereby
-----------------------------------
awards to Participant, and Participant hereby accepts, as of the Date of Award,
the right to acquire the number of shares of Common Stock indicated below (the
"Restricted Shares") for the Cash Purchase Price per share indicated below. The
aggregate Cash Purchase Price must be paid to the Company on or prior to 5:00
p.m. (local time at the Company's principal executive office) upon the sixtieth
day following the Date of Award. The Restricted Shares shall be subject to all
of the terms and conditions set forth in this Agreement, including the
restrictions imposed pursuant to Section 3 hereof; provided, however, that on
-------- -------
each anniversary of the Date of Award, such restrictions shall terminate with
respect to that number of Restricted Shares (rounded to the nearest whole share)
equal to the total number of Restricted Shares multiplied by the Annual Vesting
Rate
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<PAGE>
indicated below (the termination of such restrictions with respect to any
Restricted Share, for any reason, shall be referred to herein as the "vesting"
of such share).
Participant: ________________
Date of Award: ________________
Number of shares purchasable: ________________
Cash Purchase Price per share: $_______________
Annual Vesting Rate: ________________%
2. Consideration for Shares; Method of Payment.
--------------------------------------------
(a) The consideration for the issuance and sale of Restricted
Shares contemplated hereby may include, in addition to the Cash Purchase Price
per share indicated in Section 1 hereof, consideration in the form of past
services to the Company or one or more of its subsidiaries. If the Cash Purchase
Price per share is $0, then (i) the total consideration for the issuance and
sale of the Restricted Shares shall be deemed to be equal to $0.01 per share and
(ii) such consideration shall be deemed to have been received by the Company, on
or prior to the Date of Award, in the form of past services.
(b) The aggregate Cash Purchase Price must be paid to the
Company in cash or by check payable to the Company. Upon payment to the Company
in full of the aggregate Cash Purchase Price as provided herein on or prior to
5:00 p.m. (local time at the Company's principal executive office) on the
sixtieth day following the Date of Award, Participant shall be deemed to have
purchased the Restricted Shares effective as of the Date of Award.
3. Restrictions. Until a Restricted Share vests, it may not be
-------------
sold, assigned, conveyed, gifted, pledged, hypothecated, or otherwise
transferred in any manner.
4. Acceleration of Vesting.
-----------------------
(a) Notwithstanding anything to the contrary contained in this
Agreement, in the event that Participant shall cease to be an employee, director
or consultant of the Company or any of its subsidiaries (such event shall be
referred to herein as the "Termination" of Participant's "Employment") for any
reason, or for no reason (other than if Participant's Employment is Terminated
as the result of malfeasance or gross
-2-
<PAGE>
misfeasance in the performance of duties, or conviction of illegal activity in
connection therewith or conviction of a felony), within one year after a Change
of Control (as hereinafter defined), all of the then unvested Restricted Shares
shall vest upon the date of such event.
(b) "Change of Control" shall mean the first to occur of the
following events:
(i) any date upon which the directors of the Company who were
nominated by the Board of Directors (the "Board") for election as directors
cease to constitute a majority of the directors of the Company;
(ii) the date of the first public announcement that any
person or entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such
person or entity, shall have become the Beneficial Owner (as defined in
Rule 13d-3 promulgated under the Exchange Act) of voting securities of the
Company representing 50% or more of the voting power the Company (a "50%
Stockholder"); provided, however, that the terms "person" and "entity," as
-------- -------
used in this clause (ii) shall not include (A) the Company or any of its
subsidiaries, (B) any employee benefit plan of the Company or any of its
subsidiaries, (C) any entity holding voting securities of the Company for
or pursuant to the terms of any such plan or (D) any person or entity who
was a 50% Stockholder on the date of adoption of the Plan by the Board; or
(iii) a reorganization, merger or consolidation of the Company
(other than a reorganization, merger or consolidation the sole purpose of
which is to change the Company's domicile solely within the United States)
the consummation of which results in the outstanding securities of any
class then comprising the Restricted Shares being exchanged for or
converted into cash, property or a different kind of securities; provided,
--------
however, that a Change of Control shall not be deemed to occur if, as a
-------
result of such reorganization, merger or consolidation of the Company, the
securities of any class then subject to the Option (the "Option
Securities") are exchanged for or converted into securities that represent
the same beneficial ownership of the Company and possess the same voting,
liquidation and other rights to which the Option Securities were entitled
immediately prior to such reorganization, merger or consolidation.
(c) In addition, the Committee, in its sole discretion, may
accelerate the vesting of any or all of the Restricted Shares at any time.
-3-
<PAGE>
5. Repurchase of Restricted Shares. Notwithstanding anything to the
-------------------------------
contrary contained in this Agreement, if Participant shall cease to be an
employee, director or consultant of the Company or any of its subsidiaries for
any reason, or for no reason, then, unless the Committee shall determine
otherwise, the Company shall repurchase each then unvested Restricted Share at a
purchase price equal to the Cash Purchase Price per share.
6. Payment of Withholding Taxes. If the Company becomes obligated to
----------------------------
withhold an amount on account of any federal, state or local tax imposed as a
result of the sale of the Restricted Shares to Participant pursuant to this
Agreement or the termination of the restrictions imposed upon the Restricted
Shares hereunder, including, without limitation, any federal, state or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax (the date upon which the Company becomes so obligated shall be referred to
herein as the "Withholding Date"), then Participant shall pay such amount (the
"Withholding Liability") to the Company on the Withholding Date in cash or by
check payable to the Company.
7. Escrow.
------
(a) Until a Restricted Share vests, (i) the record address of the
holder of record of such Restricted Share shall be c/o the Secretary of the
Company at the address of the Company's principal executive office, (ii) the
stock certificate representing such Restricted Share (together with any cash,
property or securities comprising all or any part of such Restricted Share as
provided in Section 8 hereof) shall be held in escrow in the custody of the
Secretary of the Company, duly endorsed in blank or accompanied by a duly
executed stock power, and (iii) such stock certificate shall contain the
following legend:
"The transfer and registration of transfer of the securities
represented by this certificate are subject to certain
restrictions as provided in a Restricted Stock Agreement dated
as of [Date of Award to be inserted] by and between the
Corporation and [name of Participant to be inserted]."
(b) From and after the date upon which a Restricted Share vests, the
holder of record of such Restricted Share shall be entitled (provided that
Participant shall have paid the Withholding Liability to the Company pursuant to
Section 6 hereof) to receive the stock certificate representing such Restricted
Share (together with any cash, property or securities comprising all or any part
of such Restricted Share as provided in Section 8 hereof), which stock
certificate shall not contain the legend set forth in subsection (a)(iii) above.
-4-
<PAGE>
8. Voting; Dividends; Certain Corporate Transactions. The holder of
-------------------------------------------------
record of any Restricted Share shall be entitled to exercise all voting rights
with respect to such share and to receive all regular cash dividends paid with
respect thereto. In the event that the outstanding securities of any class then
comprising the Restricted Shares are increased, decreased or exchanged for or
converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, then, unless the Committee shall determine otherwise, the term
"Restricted Shares" shall, from and after the date of such event, include such
cash, property or securities so distributed in respect of the Restricted Shares,
or into or for which the Restricted Shares are so increased, decreased,
exchanged or converted.
9. Plan. The Restricted Shares are being sold pursuant to the Plan,
----
as in effect on the Date of Award, and are subject to all the terms and
conditions of the Plan, as the same may be amended from time to time; provided,
--------
however, that no such amendment shall deprive Participant, without his or her
- -------
consent, of the Restricted Shares or of any of Participant's rights under this
Agreement. The interpretation and construction by the Committee of the Plan,
this Agreement and such rules and regulations as may be adopted by the Committee
for the purpose of administering the Plan shall be final and binding upon
Participant. Until the Restricted Shares shall vest or be forfeited, the Company
shall, upon written request therefor, send a copy of the Plan, in its then
current form, to the holder of record of the Restricted Shares.
10. Employment or Contract Rights. No provision of this Agreement
-----------------------------
shall (i) confer upon Participant any right to continue in the employ of or
contract with the Company or any of its subsidiaries, (ii) affect the right of
the Company and each of its subsidiaries to terminate the employment or contract
of Participant, with or without cause, or (iii) confer upon Participant any
right to participate in any employee welfare or benefit plan or other program of
the Company or any of its subsidiaries other than the Plan. Participant hereby
acknowledges and agrees that the Company and each of its subsidiaries may
terminate the employment or contract of Participant at any time and for any
reason, or for no reason, unless Participant and the Company or such subsidiary
are parties to a written employment or consulting agreement that expressly
provides otherwise.
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<PAGE>
11. Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of California without
reference to choice or conflict of law principles.
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Award.
GBC BANCORP
By _____________________________________
Authorized Representative
PARTICIPANT
________________________________________
Signature
________________________________________
Printed Name
________________________________________
Street Address
________________________________________
City, State and Zip Code
________________________________________
Social Security Number
