<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
------------------------------
CU BANCORP
(Exact name of Registrant as specified in its charter)
-----------------------
California 95-3657044
(Jurisdiction of incorporation (I.R.S. Employer
or organization) Identification Number)
16030 VENTURA BOULEVARD
ENCINO, CALIFORNIA
91436-4487
(818) 907-9122
(Address, including Zip Code, and telephone number, including area code, or
Registrant's principal executive office)
CU BANCORP CONVERSION STOCK OPTION PLAN
(Full title of Plan)
Anita Yallowitz Wolman, Esq.
16030 Ventura Boulevard
Encino, California 91436-4487
(818) 907-9122
(Name, address, including Zip Code, and telephone number,
of Registrant's Agent of Service of Process)
Approximate commencement date of the proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only Securities being registered on this Form are being offered
pursuant to a dividend or interest reinvestment plan, please check the following
box: [ ]
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans check the following box: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered(1) offering price per aggregate offering registration fee
registered unit (2) price (3)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 194,915 $12.5 $2,436,437 $738.31
without par value
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
(2) Computed pursuant to Rule 457(c) based on the average of the high and
low sales price of CU Bancorp Shares on February 2, 1997 as reported on
the NASDAQ, National Market System
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(3) Pursuant to Rule 416(a), this registration statement covers the
issuance of an additional indeterminate number of shares of common
stock resulting from the automatic dilution provision of the Plan.
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EXPLANATORY NOTE
PART I
INFORMATION REQUIRED IN PROSPECTUS
The information called for in Part 1 of Form S-8 is not being filed
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"). A second prospectus (the "Reoffer Prospectus") is
to be used for reoffers and resales of the Company's Common Stock acquired
pursuant to the CU Bancorp Conversion Stock Option Plan by affiliates of the
Company and has been prepared in accordance with the requirements of Form S-3,
as required by the conditions specified in General Instruction C to Form S-8.
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CU Bancorp
194,915 SHARES OF COMMON STOCK
16030 Ventura Boulevard
Encino, California 91436-4487
(818) 907-9122
The Prospectus relates to up to 194,915 shares of Common Stock ("Common
Stock" or the "Shares") of CU Bancorp (the "Company"), which may be offered by
the Selling Security Holders (as hereinafter defined) listed herein under the
caption "Selling Security Holders" and set forth on Exhibit A hereto.
The 194,915 Shares covered by this Prospectus may be offered by the
Selling Security Holders from time to time in transactions on the NASDAQ
National Market System (the "NMS") at prices and terms then obtainable, through
negotiated transactions at negotiated prices, or through underwriters,
broker-dealers or otherwise, however, there is no commitments to sell any of
these Shares. The amount of Shares offered will be determined form time to time
by the Selling Security Holders in their sole discretion. The Company will not
receive any part of the proceeds of any sales. Any brokers' commissions,
discounts, or other underwriters' compensation will be paid by the Selling
Security Holders.
The Selling Security Holders, and the broker-dealers through whom sales
may be made, may, the Company not so conceding, be deemed to be underwriters
under the Securities Act of 1933 (the "Securities Act"), and any commissions
paid or by discounts or concessions allowed to such broker-dealers may be
underwriting discounts and commissions under the Securities Act.
The Company's Common Stock is traded on the NMS. On February 2, 1997,
the closing price of the Common Stock on the NMS was $12.50 per Share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is February 2, 1996
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TABLE OF CONTENTS
Available Information ....................................................4
Selling Security Holders ..................................................4
Plan of Distribution ......................................................4
Description of Common Stock ...............................................4
Incorporation of Certain Documents by Reference ...........................8
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and if given or
made, such information or representation must not be relied upon as having been
authorized by the Company. Neither the delivery of this Prospectus nor any sale
made through its use shall imply that there has been no change in the affairs of
the company since the date hereof.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). The reports, proxy statements and other
information filed by CU Bancorp with the Commission can be inspected and copied
at the public reference facilities maintained by their Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the public reference
facilities in the Commission's Regional Offices at Seven World Trade Center,
Suite 1300, New York, New York 10048, and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material also can be
obtained form the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates.
SELLING SECURITY HOLDERS
Each of the Selling Security Holders (each, a "Selling Security
Holder") identified in Exhibit A hereto, from time to time, are the holders of
non-qualified or incentive stock options granted by the Company, and this
Prospectus covers the possible resale of the Shares issued or issuable upon the
exercise of these options.
PLAN OF DISTRIBUTION
The Company will receive no proceeds from this offering. The securities
offered hereby may be sold by a Selling Security Holder acting as a principal
for his own account through market transactions on the NMS, in one or more
negotiated transactions at negotiated prices, or otherwise. The sale of
securities may be offered to or through underwriters, brokers or dealers, and
such underwriters, brokers or dealers may receive compensation in the form of
underwriting discounts, commissions or concessions from a Selling Security
Holder and/or the purchasers of the securities for underwriters, brokers or
dealers that participate in the distribution of the securities may, the Company
not so conceding, be deemed to be underwriters and nay compensation received by
them and any provided pursuant to the sale of the securities by them might be
deemed to be underwriting discounts and commissions under the Securities Act. In
order to comply with certain states' securities laws, if applicable, the
securities will be sold in such jurisdictions only through registered on
licensed brokers or dealers. In addition, in certain states the securities may
not be sold unless the securities have been registered or qualify for sale in
such state or an exemption from registration or qualification is available and
is complied with.
DESCRIPTION OF COMMON STOCK
The Company's authorized capital stock consists of 24,000,000 shares of
common stock, without par value. The Company's Common Stock is registered under
the Exchange Act. The following is a summary of the provisions of the Company's
Restated Certificate
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of Incorporation and is qualified in its entirety by reference thereto.
CU Bancorp Common
The Board of Directors of Company is authorized to issue a maximum of
24,000,000 shares of Common Stock. As of December 31, 1996 11,341,690 shares of
Company Common Stock were outstanding. Subject to any prior rights of any
preferred stock of Bancorp ("Preferred Stock") then outstanding, holders of the
Common Stock are entitled to receive such dividends as are declared by the
Company's Board of Directors out of funds legally available therefor. Subject to
the rights, if any, of any Preferred Stock, all voting rights are vested in the
holders of the Company Common each share being entitled to one vote. Subject to
any prior rights of Preferred Stock, in the event of liquidation, holders of
shares of Common Stock are entitled to receive pro rate any assets distributable
to stockholders in respect of shares held by them. Holders of shares of Common
Stock do not have any pre-emptive right to subscribe for any additional
securities which may be issued by the Company. The outstanding shares of Bancorp
Common are, and the shares of Common Stock, offered hereby will be, fully paid
and non-assessable. The transfer agent and registrar for the Company Common
Stock, is U.S. Stock Transfer, Inc.
CU Bancorp Preferred Stock
The Board of Directors of Company has the authority, without further
stockholder action, to issue from time to time a maximum of 10,000,000 shares of
Preferred Stock in one or more series and with such terms and at such times and
for such consideration as the Board may determine. The authority of the Board
includes the determination of fixing of the following with respect to shares of
such class or any series thereof: (i) the number of shares and designation or
title thereof, (ii) rights as to dividends; (iii) whether and upon what terms
the shares are to be convertible; (v) the voting rights, if any, which shall
apply, provided, however, that in no event shall any holder of any series of the
Preferred Stock held by such holder; and (vi) the rights of the holders upon the
dissolution, or upon the distribution of assets, of Bancorp. Any shares of
Preferred Stock which may be issued may rank prior to shares of Common Stock as
to payment of dividends and upon liquidation. No Preferred Stock is currently
outstanding.
<PAGE> 8
PART II
PLAN INFORMATION; REGISTRANT INFORMATION
AND EMPLOYEE PLAN ANNUAL INFORMATION
This Registration Statement incorporates documents by reference which
are not presented herein or delivered herewith. Such documents (other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference) are available upon written or oral request, without charge, directed
to CU Bancorp, 16030 Ventura Boulevard, Encino, California 91436-4487 (telephone
number 818-907-9122).
Attention: Corporate Secretary.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Company (File No.
0-11008) pursuant to the Exchange Act are incorporated by reference in this
Registration Statement:
1. Company's Annual Report on Form 10-K for the year ended December 31,
1995, Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, and
June 30, 1996. Definitive Proxy Statement dated June 10, 1996 (contained in
Registration Statement on Form S-4 dated June 10, 1996 - Registration Number
333-02777); The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996; Home Interstate Bancorp's Annual Report on Form 10-K for
the year ended December 31, 1995, Quarterly Reports on Form 10-Q for the
quarters dated March 31, 1996 and June 30, 1996; Home Interstate Bancorp's
Definitive Proxy Statement dated June 10, 1996 (contained in Registration
Statement on Form S-4 dated June 10, 1996 - Registration Number 333-0277;
(the "CU Bancorp Filings");
2. The description of Company's Common Stock contained in Company's
registration on Form S-4 filed with the Commission on October 26, 1995.
All documents and reports subsequently filed by Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents or reports. Any statement contained 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 field
documents which also is or is 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.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Five of Company's Articles of Incorporation provides that the liability
of the directors
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<PAGE> 9
of the corporation for monetary damages shall be eliminated to the fullest
extent permissible under California law and that the corporation is authorized
to provide for the indemnification of agents (as defined in Section 317 of the
California General Corporation Law) of the corporation in excess of that
expressly permitted by such Section 317 for breach of duly to the corporation
and its shareholders to the fullest extent permissible under California law, or
any other applicable law.
EXHIBITS
There are filed as a part of this registration statement, the exhibits
listed in the Exhibit Index and Exhibit A hereto.
UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if 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 the 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.
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<PAGE> 10
(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.
(b) 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 that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c)(1) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 February 2, 1997
CU BANCORP
(Registrant)
By: STEPHEN G. CARPENTER
-------------------------------
Stephen G. Carpenter
Chief Executive Officer
By: PATRICK HARTMAN
-------------------------------
Patrick Hartman
Chief Financial Officer
11
<PAGE> 12
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Stephen G. Carpenter, David I. Rainer, James P. Staes, Patrick Hartman and Anita
Wolman, and each of them individually, his true and lawful attorney-in-fact and
agent, with full powers of substitution and resubstitution, 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 other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent 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 said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on August 30, 1996.
Signatures Title
---------- -----
S/S
- ------------------------------- Director
Kenneth Bernstein
S/S
- ------------------------------- Director
Donald A. Buschenfield
S/S
- ------------------------------- Director/Chairman/Chief Executive
Stephen G. Carpenter Officer
S/S
- ------------------------------- Director
J. Richard Denham
S/S
- ------------------------------- Director
Randall G. Elston
S/S
- ------------------------------- Director
Paul W. Glass
S/S
- ------------------------------- Director
12
<PAGE> 13
Donald G. Martin
S/S
- ------------------------------ Director
Ronald S. Parker
S/S
- ------------------------------ Director
David I. Rainer
S/S
- ------------------------------ Director, Vice Chairman
James P. Staes
13
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
EXHIBIT Numbered
NO. Exhibit Page
--- ------- ----
<S> <C> <C>
4(a) CU Bancorp Conversion Stock Option Plan 15
4(b) Copy of Option Agreement under
CU Bancorp Conversion Stock Option Plan. 27
5 Opinion of Anita Wolman, Esq. 34
24(a) Consent of Arthur Andersen LLP. 35
24(b) Consent of Anita Wolman, Esq. (included in its
opinion in Exhibit 5)
25 Power of Attorney set forth on the signature
pages 5 through 9.
</TABLE>
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<PAGE> 1
EXHIBIT 4(a)
CU BANCORP
1996 CONVERSION STOCK OPTION PLAN
Adopted April 15, 1996
Approved by the Shareholders on July 18, 1996
WHEREAS, CU Bancorp (" CU Bancorp") has entered into that certain
Agreement and Plan of Reorganization By and Among CU Bancorp, California United
Bank, N.A., Home Interstate Bancorp ("Home Bancorp") and Home Bank, dated
January 10, 1996, as amended March 29, 1996 (the "Agreement") pursuant to which,
among other things, Home Bancorp will merge with and into CU Bancorp (the
"Merger");
WHEREAS, the Agreement provides, among other things, that CU Bancorp
will assume certain stock options issued pursuant to the Home Interstate Bancorp
1985 Stock Option Plan, as amended (the Home Option Plan")'
WHEREAS, CU Bancorp currently has in effect the certain stock option
plans ("CU Bancorp's Existing Option Plans");
WHEREAS, CU Bancorp desires to fulfill its obligations with respect to
options outstanding under the Home Option Plan, as provided in the Agreement,
without affecting CU Bancorp's Existing Option Plans;
WHEREAS, CU Bancorp desires to adopt this CU Bancorp 1996 Conversion
Stock Option Plan (the "1996 Conversion Option Plan") in order to fulfill its
obligation with respect to the assumption of certain options outstanding under
the Home Option Plan, as provided in Section 2.9 of the Agreement; and
WHEREAS, any option agreements entered into by CU Bancorp pursuant
hereto shall be contingent upon the consummation of the Merger.
NOW, THEREFORE, in consideration of the foregoing recitals, subject to
the approval of CU Bancorp's shareholders, CU Bancorp does hereby adopt the 1996
Conversion Option Plan, whose provisions are as follows:
1. PURPOSES
The purposes of the 1996 Conversion Option Plan are (i) to
fulfill certain obligations of CU Bancorp under the Agreement, (ii) to
strengthen CU Bancorp and those corporations which are or hereafter become
subsidiary corporations of CU Bancorp, within the meaning of Section 424 of the
Internal Revenue Code of 1986, as amended (the "Code"), by providing to certain
persons who were granted options under the Home Option Plan and will become
officers, employees or directors of CU Bancorp upon consummation of the
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<PAGE> 2
transactions provided for in the Agreement added incentives for high levels of
performance on behalf of CU Bancorp after the consummation of the transactions
provided for in the Agreement and (iii) to encourage stock ownership in CU
Bancorp.
2. ADMINISTRATION
(a) The 1996 Conversion Option Plan shall be administered by
CU Bancorp's Board of Directors (the "Board") unless and until the Board
delegates administration to a committee ("Committee"), as provided in
subparagraph 2(d). Board action shall be taken pursuant to a majority vote or
the unanimous written consent of its members; provided, however, no member of
the Board shall act upon granting an option to himself or herself, but any such
member may be counted in determining the existence of a quorum at any meeting of
the Board during which action is taken with respect to the granting of options
to such director.
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the 1996 Conversion Option Plan:
(i) To determine which of the options outstanding under
the Home Option Plan shall be assumed and which optionees under the Home Option
Plan shall receive substituted options under the 1996 Conversion Option Plan;
when and how the option shall be issued; whether the option will be an incentive
stock option or a non-qualified stock option; the provisions of each option
issued (which need not be identical), including, without limitation, the time or
times during the term of each option within which all or portions of such option
may be exercised; the duration of and purposes of leaves of absence which may be
granted to participants without constituting a termination of their employment
for purposes of the 1996 Conversion Option Plan; and the number of shares for
which an option shall be issued to each such person;
(ii) To determine any conditions or restrictions imposed
on stock acquired pursuant to the exercise of an option (including, but not
limited to, forfeiture restrictions and restrictions on transferability);
(iii) To construe and interpret the 1996 Conversion Option
plan and the options issued under it, to construe and interpret any conditions
or restrictions imposed on stock acquired pursuant to the exercise of an option,
to define the terms used herein, and to establish, and amend and revoke rules
and regulations for its administration. The Board, in the exercise of this
power, may correct any defect, omission or inconsistency in the 1996 Conversion
Option Plan or in any option agreement in a manner and to the extent it shall
deem necessary or expedient to make the 1996 Conversion Option Plan fully
effective; and
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<PAGE> 3
(iv) Generally, to exercise such powers and to perform
such acts as it deems necessary or expedient to promote the best interests of
the Company.
(c) The Board shall comply with the provisions of Rule 16b-3,
promulgated pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act") as in effect from time to time, to the extent applicable to the 1996
Conversion Option Plan.
(d) The Board may delegate administration of the 1996
Conversion Option Plan to a Committee composed of not fewer than three (3)
members of the Board. In the event CU Bancorp registers or has registered any
class of equity security pursuant to Section 12 of the 1934 Act, from the
effective date of such registration until six months after termination of such
registration, all of the members of the Committee shall not (either while
members of the Committee or at any time within one year prior to becoming
members of the Committee) be or have been eligible for selection as a person to
whom awards may be made under the 1996 Conversion Option Plan or any other plan
of CU Bancorp or any of its subsidiaries entitling the participants therein to
acquire stock, stock options or stock appreciation rights of CU Bancorp or any
of its subsidiaries (a "Disinterested Person"). The Committee shall have, in
connection with the administration of the 1996 Conversion Option Plan, the
powers therefore possessed by the Board as set forth in subparagraph 2(b),
subject, however, to such resolutions, not inconsistent with the provisions of
the 1996 Conversion Option Plan, as may be adopted from time to time by the
Board. Any action of the Committee with respect to administration of the 1996
Conversion Option Plan shall be taken pursuant to a majority vote or to
unanimous written consent of its members. The Board may abolish the Committee at
any time and revest in the Board the administration of the 1996 Conversion
Option Plan.
(e) The determination of the Board or the Committee on matters
referred to in this paragraph 2 shall be final and conclusive.
3. SHARES SUBJECT TO THE 1996 CONVERSION OPTION PLAN.
(a) Subject to the provisions of paragraph 9 relating to
adjustments upon changes in stock, and subject to subparagraphs 3(b), 3(c) and
3(d), the stock that may be offered pursuant to options issued under the 1996
Conversion Option Plan shall not exceed 220,000 shares of CU Bancorp's common
stock. If any option issued under the 1996 Conversion Option Plan shall for any
reason expire, be canceled or otherwise terminate without having been exercised
in full, the stock not purchased under such option shall be withdrawn from and
no longer be available under the 1996 Conversion Option Plan.
(b) The maximum aggregate number of shares of CU Bancorp's
common stock that may be offered pursuant to the 1996 Conversion Option Plan
shall be limited to the
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<PAGE> 4
individual option agreements that CU Bancorp enters into with optionees under
the Home Option Plan prior to consummation of the Merger. No shares of CU
Bancorp stock may be offered pursuant to the 1996 Conversion Option except as
provided in the option agreements referred to in the preceding sentence. Subject
to the provisions of paragraph 9, the maximum aggregate number of shares of CU
Bancorp stock offered pursuant to the 1996 Conversion Option Plan shall not be
increased subsequent to the consummation of the Merger and shall automatically
be reduced to the aggregate number of shares of CU Bancorp stock provided for in
such option agreements.
(c) The aggregate maximum number of shares of CU Bancorp's
stock to be offered pursuant to the 1996 Conversion Option Plan (and the number
of shares to be covered by each option agreement) shall be determined in
accordance with the Conversion Ratio (as defined in the Agreement) for the
Merger. In connection with the foregoing, in the case of each option issued
pursuant hereto, the excess of the aggregate fair market value of the shares of
CU Bancorp stock subject to the option immediately after the issuance of the
option over the aggregate option price of such CU Bancorp shares shall equal the
excess of the aggregate fair market value of all shares of Home Bancorp stock
subject to the Home Bancorp option for which such CU Bancorp option is being
substituted immediately before such substitution over the aggregate option price
of such shares of Home Bancorp stock. For any option, on a share by share
comparison, the ratio of the option exercise price to the fair market value of
the CU Bancorp Stock subject tot he option immediately after the assumption
shall not be more favorable to the optionee then the ratio of the Home option
exercise price to the fair market value of the Home stock immediately before the
assumption. Determination of the value of stock and determination of any spread
in stock value and option exercise price shall be made at the time of the
consummation of the Merger.
(d) In the event that the Merger is not consummated, no shares
of CU Bancorp stock shall be issued pursuant to the 1996 Conversion Option Plan.
All option agreements entered into by CU Bancorp pursuant to the 1996 Conversion
Option Plan shall be conditional, based upon the requirement that the Merger is
consummated, and all such option agreements shall provide that the options
terminate automatically in the event that such merger is abandoned or otherwise
not consummated.
(e) No option to acquire fractional shares of CU Bancorp may
be issued under the 1996 Conversion Option. In the event that the computations
provided for in subparagraph 3(c) would result in the issuance of an option for
a fractional share, the number of shares covered by such option shall be rounded
down to the next whole number of shares, and the aggregate purchase price for
shares under the option shall be adjusted commensurately.
4. ELIGIBILITY.
(a) Only persons who immediately prior to the consummation of
the Merger hold valid unexercised options issued pursuant to the Home Option
Plan and will become,
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<PAGE> 5
upon consummation of the Merger: (i) full-time salaried employees or
employee/directors of CU Bancorp or its subsidiaries; (ii) or directors of CU
Bancorp who will not be full-time salaried employees of CU Bancorp or its
subsidiaries are eligible to receive options pursuant to the 1996 Conversion
Option Plan.
(b) In order to receive an option pursuant to the 1996
Conversion Option Plan, a person described in subparagraph 4(a) must, prior to
the consummation of the Merger, have entered into an option agreement under the
1996 Conversion Option Plan with CU Bancorp. Any such person who has not so
entered into an option agreement with CU Bancorp prior to the consummation of
the Merger, shall not be eligible to participate in the 1996 Conversion Option
Plan.
(c) CU Bancorp may issue incentive stock options pursuant to
the 1996 Conversion Option Plan provided that the aggregate fair market value of
the stock (determined at the time the incentive stock option is granted) with
respect to which incentive stock options are exercisable for the first time by
the optionee during any calendar year ( under all incentive stock option plans
of CU Bancorp) shall not exceed One Hundred Thousand Dollars ($100,000). Should
it be determined that any incentive stock option issued pursuant to the 1996
Conversion Option Plan exceeds such maximum, such incentive stock option shall
be considered a non-qualified option and not qualify for treatment as an
incentive stock option under Section 422 of the Code to the extent, but only to
the extent, of such excess.
The option agreements entered into pursuant to the 1996 Conversion Option Plan
are not intended to constitute the grant of a new option within the meaning of
Section 422 or Section 424 of the Code and shall not be deemed such a grant for
purposes of the preceding sentence.
(d) Notwithstanding anything to the contrary contained in the
1996 Conversion Option Plan, no person may be granted an option under the 1996
Conversion Option Plan if such person, upon receiving such grant, would hold
options to purchase more than 10% of the outstanding shares of common stock of
CU Bancorp.
5. OPTION PROVISIONS.
Each option shall be in such form and shall contain such terms
and conditions as the Board or the Committee shall deem appropriate. CU Bancorp
may enter into an option agreement under the 1996 Conversion Option Plan (or
determine not to enter into such an option agreement) in its sole and absolute
discretion, and no optionee under the Home Option Plan shall have a right to
receive an option hereunder except as may be mutually agreed with CU Bancorp
under the negotiated terms of separate option agreements. Subject to the
specific provisions of the 1996 Conversion Option Plan, and subject to the
discretion of the Board or the Committee, the Board or the Committee (as the
case may be) is authorized to enter into option agreements with persons holding
options under the Home Option Plan that preserve as nearly as possible the
benefits, burdens and terms of such Home Bancorp options. The
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provisions of separate options need not be identical, but each option shall
include (through incorporation of provisions hereof by reference in the option
or otherwise) the substance of each of the following provisions:
(a) Each option issued and all rights or obligations
thereunder by its terms shall expire on such date as the Board or the Committee
may determine as set forth in such stock option agreement, but not later than
ten (10) years from the date the option was issued and shall be subject to
earlier termination as provided elsewhere in the 1996 Conversion Option Plan.
Notwithstanding the foregoing, any incentive stock option issued to an optionee
who owns (or is deemed to own pursuant to Section 424(d) of the Code) stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of CU Bancorp or any of its affiliates shall expire not later
than five (5) years from the date of issuance. For purposes of the 1996
Conversion Option Plan, the date of issuance of an option shall be the date on
which the Merger is consummated, provided that the Board or Committee has
entered into an option contract with such optionee prior to consummation of the
Merger.
(b) The exercise price of each option shall be determined by
the Board or the Committee in accordance with subparagraph 3(c) above. The fair
market value of stock shall be determined by the Board or the Committee in
accordance with any reasonable valuation method, including the valuation methods
described in Treasury Regulation Section 1.425-1(a)(7).
(c) The purchase price of stock acquired pursuant to an option
shall be paid at the time the option is exercised in cash or check payable to
the order of CU Bancorp in an amount equal to the option price for the shares
being purchased. If other than the optionee, the person or persons exercising
the option shall be required to furnish CU Bancorp appropriate documentation
that such person or persons have the full legal right and power to exercise the
option on behalf of and for the optionee.
(d) An option by its terms may only be transferred by will or
by the laws of descent and distribution upon the death of the optionee, shall
not be transferable during the optionee's lifetime, and shall be exercisable
during the lifetime of the person to whom the option is granted only by such
person.
(e) Subject to subparagraph 5(f) and except as provided in
paragraph 10, each option shall be exercisable in such installments, which need
not be equal, and upon such contingencies as the Board shall determine. In
addition, the Board or the Committee shall have the power to accelerate the time
during which an option may be exercised, notwithstanding the provisions in the
option stating the time during which it may be exercised.
(f) From time to time during each of such installment periods,
the option may be exercised with respect to some or all of the shares allotted
to that period, and /or with respect some or all of the shares allotted to any
prior period as to which the option was not fully
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<PAGE> 7
exercised. During the remainder of the term of the option (if its term extends
beyond the end of the installment periods), the option may be exercised from
time to time with respect to any shares then remaining subject to the option.
The provisions of this subparagraph 5(f) are subject to any option provisions
governing the minimum number of shares as to which an option may be exercised.
(g) CU Bancorp may require any optionee, or any person to whom
an option is transferred under subparagraph 5(d), as a condition of exercising
any such option, to give written assurances satisfactory to CU Bancorp stating
that such person is acquiring the stock subject to the option for such person's
own account and not with any present intention of selling or otherwise
distributing the stock. The requirement of providing written assurances, and any
assurances given pursuant to the requirement, shall be inoperative if (i) the
shares to be issued upon the exercise of the option have been registered under a
then currently effective registration statement under the Securities Act of
1933, as amended (the "Securities Act"), or (ii) a determination is made by
counsel for CU Bancorp that such written assurances are not requires in the
circumstances under the then applicable federal or state securities laws.
(h) If an optionee who is an employee of Home Bancorp or Home
Bank, and who becomes an employee of CU Bancorp or its subsidiaries as a result
of the transactions provided for in the Agreement, ceases to be employed by CU
Bancorp or its subsidiaries, or a person who holds an option under the Home
Option Plan attributable to service as a non-employee director of Home Bancorp,
and who becomes a director of CU Bancorp as a result of the transactions
provided for in this Agreement, ceases to serve as a director of CU Bancorp or
its subsidiaries, then such optionee's option shall terminate three (3) months
thereafter (or sooner, if provided in the particular option agreement), and
during such period, such option shall be exercisable only as to those shares
with respect to which installments, if any, accrued as of the date on which the
optionee ceased to be employed by CU Bancorp or its subsidiaries or ceased to
serve as a director of CU Bancorp or its subsidiaries (as the case may be),
unless:
(i) Such termination is due to such person's permanent and
total disability, within the meaning of Section 22(e)(3) of the Code, in which
case such person's stock option may be exercised at any time within a period of
not less than six (6) months nor more than one (1) year following such
termination of employment or cessation of directorship, and provided further
that if such optionee dies during such specified period following such
termination of employment or cessation of directorship, then the stock option
agreement may, but need not, provide that such option may be exercised at any
specified time upon to one (1) year following the death of the optionee by the
person or persons to whom the optionee's rights under such option pass by will
or by the laws of descent and distribution, but only to the extent that the
optionee was entitled to exercise said option immediately prior to the
termination of the optionee's employment or cessation of the optionee's
directorship;
(ii) The optionee dies while in the employ of CU Bancorp
or its subsidiaries or while serving as a director of CU Bancorp or its
subsidiaries (which shall
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<PAGE> 8
constitute termination of employment or cessation of directorship), in which
case options may be exercised at any time within a period of not less than six
(6) months nor more than one (1) year following the death of the optionee by the
person or persons to whom the optionee's rights under such option pass by will
or by the laws of descent and distribution, but only to the extent that the
optionee was entitled to exercise said option immediately prior to the
termination of optionee's employment or cessation of optionee's directorship and
provided further that it an optionee dies within not more than three (3) months
after termination of such employment or cessation of directorship, then such
person's option may, but need not, provide that it may be exercised at any time
within one (1) year following the death of the optionee as provided herein;
(iii) The option by its terms specifies that it shall
terminate sooner than three (3) months after termination of the optionee's
employment or cessation of the optionee's directorship, but only to the extent
that the optionee was entitled to exercise said option immediately prior to the
termination of optionee's employment or cessation of optionee's directorship;
(iv) The optionee's employment is terminated for cause,
whereupon the option terminates immediately unless such termination is waived by
the Board or Committee. Termination for cause shall include termination for
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 CU Bancorp or any of its subsidiaries,
and the termination of the Board or Committee with respect thereto shall be
final and conclusive; or
(v) An optionee who becomes a director of CU Bancorp or
any of its subsidiaries is removed from the Board for cause, whereupon the
option terminates immediately on the date of such removal unless such
termination is waived by the Board of Committee. Removal for cause shall include
removal of a director who has been declared of unsound mind by an order of court
or convicted of a felony.
This subparagraph 5(h) shall not be construed to extend the
term of any option or to permit anyone to exercise the option after expiration
of its term, nor shall it be construed to increase the number of shares as to
which any option is exercisable from the amount exercisable on the date of
termination of the optionee's employment.
(i) Options may be exercised by ten (10) days written notice
delivered to CU Bancorp stating the number of shares with respect to which the
option is being exercised together with payment for such shares. Not less than
ten (10) shares may be purchased at any one time unless the number purchased is
the total number of shares which may be purchased under the option.
(j) Any option granted hereunder shall provide, as determined
by the Board
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or the Committee, for appropriate arrangements for the satisfaction by CU
Bancorp or its subsidiaries and the optionee of all federal, state, local or
other income, excise or employment taxes or tax withholding requirements
applicable to the exercise of the option or the later disposition of the shares
of stock thereby acquired. Such arrangements shall include, without limitation,
the right of CU Bancorp or any subsidiary thereof to deduct or withhold in the
form of cash or, if permitted by law, shares of stock from any transfer or
payment to an optionee or, if permitted by law, to receive transfers of shares
of stock or other property from the optionee, in such amount or amounts deemed
required or appropriate by the Board of the Committee in its discretion. Any
shares of stock issued pursuant to the exercise of an option and transferred by
the optionee to CU Bancorp for purposes of satisfying any withholding obligation
shall not again be available for purposes of the 1996 Conversion Option Plan.
(k) Upon consummation of the Merger, any person who receives
an option pursuant to the 1996 Conversion Option Plan relinquishes completely
any options granted pursuant to the Home Option Plan, and such options
thereafter shall terminate and have no further effect.
6. COVENANTS OF CU Bancorp.
(a) During the terms of the options issued under the 1996
Conversion Option Plan, CU Bancorp shall keep available at all times the number
of shares of stock required to satisfy such options.
(b) Nothing herein shall require CU Bancorp to register under
the Securities Act either the 1996 Conversion Option Plan, any option issued
under the 1996 Conversion Option Plan or any stock issued or issuable pursuant
to any such option. If CU Bancorp is unable to obtain from any such regulatory
commission or agency the authority which counsel for CU Bancorp deems necessary
for the lawful issuance and sale of stock under the 1996 Conversion Option Plan,
CU Bancorp shall be relieved from any liability for failure to issue and sell
stock upon issuance or upon exercise of such options unless and until such
authority is obtained.
(c) CU Bancorp shall indemnify and hold harmless the members
of the Board and the Committee in any action brought against any member in
connection with the administration of the 1996 Conversion Option Plan to the
maximum extent permitted by then applicable law.
7. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options issued under the
1996 Conversion Option Plan shall constitute general funds of CU Bancorp.
8. MISCELLANEOUS.
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(a) Neither an optionee nor any person to whom an option is
transferred under subparagraph 5(d) shall be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any shares subject to such
option unless and until such person has satisfied all requirements for exercise
of the option pursuant to its terms.
(b) Nothing contained in the 1996 Conversion Option Plan, or
in any option issued pursuant to the 1996 Conversion Option Plan, shall obligate
CU Bancorp or any of its subsidiaries to employ any employee for any period or
interfere in any way with the right of CU Bancorp or any of its subsidiaries to
terminate or to reduce the compensation of any employee.
9. ADJUSTMENTS UPON CHANGES IN STOCK.
If the outstanding shares of the stock of CU Bancorp are increased,
decreased, or changed into, or exchanged for a different number or kind of
shares or securities of CU Bancorp, without receipt of consideration by CU
Bancorp, through reorganization, merger, recapitalization, reclassification,
stock split, stock dividend, stock consolidation, or otherwise, an appropriate
and proportionate adjustment shall be made in the number and kind of shares as
to which options may be granted. A corresponding adjustment changing the number
or kind of shares and the exercise price per share allocated to unexercised
options, or portions thereof, which shall have been granted prior to any such
change shall likewise be made. Any such adjustment, however, in an outstanding
option shall be made without change in the total price applicable to the
unexercised portion of the option but with a corresponding adjustment in the
price for each share subject to the option. Adjustments under this section shall
be made by the Board or the Committee whose determination as to what adjustments
shall be made, and the extent thereof, shall be final and conclusive. No
fractional shares of stock shall be issued under the 1996 Conversion Option Plan
on account of any such adjustment. This paragraph 9 does not apply to changes in
connection with the transactions provided for in the Agreement, but rather the
adjustments provided for in subparagraph 3(c) above apply in such event.
10. TERMINATING EVENTS.
Not less than thirty (30) days prior to the dissolution or liquidation
of CU Bancorp, or a reorganization, merger, or consolidation of CU Bancorp with
one or more corporations as a result of which CU Bancorp will not be the
surviving or resulting corporation, or a sale of substantially all the assets of
CU Bancorp to another person, or a reverse merger in which CU Bancorp is the
surviving corporation but the shares of CU Bancorp's stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property (a "Terminating Event"), the Board or the Committee shall notify
each optionee of the pendency of the Terminating Event. Upon delivery of said
notice, any option granted prior to the Terminating Event shall be,
notwithstanding the provisions of paragraph 5 hereof, exercisable in full and
not only as to those shares with respect to which installments, if any, have
then accrued, subject, however, to earlier expiration or termination as provided
elsewhere in the
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1996 Conversion Option Plan. Upon the date thirty (30) days after delivery of
said notice, any option or portion thereof not exercised shall terminate, and
upon the effective date of the Terminating Event, the 1996 Conversion Option
Plan shall terminate, unless provision is made in connection with the
Terminating Event for assumption of options theretofore granted, or substitution
for such options of new options covering stock of a successor employer
corporation, or a parent or subsidiary corporation thereof, solely at the option
of such successor corporation or parent or subsidiary corporation with
appropriate adjustments as to number and kind of shares and prices. In the event
that the Merger is not consummated, the 1996 Conversion Option Plan
automatically terminates and all option agreements entered into pursuant to the
1996 Conversion Option Plan automatically terminate.
11. AMENDMENT OF THE 1996 CONVERSION OPTION PLAN.
(a) The Board at any time, and from time to time, may amend
the 1996 Conversion Option Plan. However, except as provided in paragraph 9
relating to adjustments upon changes in stock, no amendment shall be effective
unless approved by the vote of a majority of the outstanding shares of CU
Bancorp entitled to vote, within twelve (12) months before or after the adoption
of the amendment, where the amendment will:
(i) Increase the number of shares reserved for options
under the 1996 Conversion Option Plan;
(ii) Materially modify the requirements as to eligibility
for participation in the 1996 Conversion Option Plan; or
(iii) Materially increase the benefits accruing to
participants under the 1996 Conversion Option Plan;
provided, however, that approval at a meeting or by written consent may be
obtained by a lesser degree of shareholder approval if the Board determines, in
its discretion after consultation with CU Bancorp's legal counsel, that such
lesser degree of shareholder approval will comply with all applicable laws and
will not adversely affect the qualification of the 1996 Conversion Option Plan
under Section 422 of the Code.
(b) Rights and obligations under any option issued pursuant to
the 1996 Conversion Option Plan, while the 1996 Conversion Option Plan is in
effect, shall not be altered or impaired by suspension or termination of the
1996 Conversion Option Plan, except with the consent of the person to whom the
stock or option was granted. The foregoing sentence shall not apply in the case
of a termination of the 1996 Conversion Option Plan resulting from a failure to
consummate the Merger.
12. TERMINATION OR SUSPENSION OF THE 1996 CONVERSION OPTION PLAN.
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The Board may suspend or terminate the 1996 Conversion Option
Plan at any time. Unless sooner terminated, the 1996 Conversion Option Plan
shall terminate ten years from the effective date of the 1996 Conversion Option
Plan. No options may be used under the 1996 Conversion Option Plan while the
1996 Conversion Option Plan is suspended or after it is terminated.
13. EFFECTIVE DATE OF PLAN.
The 1996 Conversion Option Plan shall become effective on the
date of its adoption by the Board, subject to approval hereof by the vote of the
holders of a majority of the outstanding shares of CU Bancorp entitled to vote
or by the unanimous written consent of the holders of all of the outstanding
shares of CU Bancorp entitled to vote.
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EXHIBIT 4(b)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO
SHARES OF CU BANCORP STOCK SHALL BE ISSUED PURSUANT HERETO UNLESS THE CU BANCORP
1996 CONVERSION STOCK OPTION PLAN SHALL HAVE FIRST BEEN APPROVED BY SHAREHOLDERS
OF CU BANCORP HOLDING NOT LESS THAN A MAJORITY OF THE VOTING POWER OF CU BANCORP
AND THE MERGER REFERRED TO BELOW IS CONSUMMATED. IN ADDITION, THE ISSUANCE OF
SHARES OF CU BANCORP STOCK PURSUANT HERETO IS SUBJECT TO THE SATISFACTION OF
CERTAIN CONDITIONS SET FORTH IN SECTION 15 HEREOF.
CU BANCORP
[INCENTIVE] [NON-QUALIFIED] STOCK OPTION
AND OPTION ASSUMPTION AGREEMENT
THIS AGREEMENT is dated the 12th day of August, 1996, by and among CU
Bancorp, a California corporation ("CU Bancorp"), HOME INTERSTATE BANCORP, a
California corporation ("Home") and [Name
of Optionee] ("Optionee");
WHEREAS, pursuant to the Home Interstate Bancorp 1985 Stock Option
Plan, as amended (the "Home Option Plan"), the Board of Directors of Home (the
"Home Board") authorized granting to Optionee a stock option to purchase all or
any part of [Original Number of shares] authorized but unissued shares of common
stock of Home for cash or shares of stock of Home at the price of [Original
Price] per share, such option to be for the term and upon the terms and
conditions stated in a written option agreement;
WHEREAS, Optionee and the Home Board entered into an Home Bancorp
[Incentive] [Non-Qualified] Stock Option Agreement dated the [date] day of
[month], [year], a copy of which is attached hereto (the "Home [year] [ISO] [NQ]
Agreement"), pursuant to the above-referenced option grant by the Home Board;
WHEREAS, due to various stock dividends and stock splits of Home, and
exercise of a portion of the options originally subject to the Home [year] [ISO]
[NQ] Agreement, the current rights of Optionee under the Home [year] [ISO] [NQ]
Agreement are to purchase [Current Number of Shares] shares of common stock of
Home at a price of [Current Price] per share upon terms and conditions more
fully set out in the Home [year] [ISO] [NQ] Agreement;
WHEREAS, CU Bancorp and Home have entered into that certain Agreement
and Plan of Reorganization dated as of January 10, 1996 by and among CU Bancorp,
California United Bank, N.A., Home, and Home Bank, amended from time to time
(the "Agreement") whereby Home will merge with and into CU Bancorp (the
"Merger"), with Home going out of existence and CU Bancorp being the surviving
corporation;
WHEREAS, pursuant to the Agreement, CU Bancorp has agreed to assume
certain stock options granted by the Home Board pursuant to the Home Option
Plan, subject to, among other things, negotiation of acceptable agreements with
respect thereto between CU Bancorp and certain grantees under the Home Option
Plan;
WHEREAS, the CU Bancorp Board of Directors ("CU Bancorp Board") has
adopted the CU Bancorp 1996 Conversion Stock Option Plan (the "1996 Conversion
Option Plan") in connection with the above-referenced Agreement; and
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WHEREAS, the parties hereto have determined that CU Bancorp will assume
the Home option granted to Optionee pursuant to the Home [year] [ISO] [NQ]
Agreement and substitute therefor an option issued to Optionee under the 1996
Conversion Option Plan, subject to the terms and conditions set forth in this
agreement.
NOW, THEREFORE, in consideration of the foregoing recitals (which are
made a part of this agreement, the mutual promises of the parties, and other
good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto agree as follows:
1. Assumption/Substitution of Option. Subject to adjustment as provided
in Section 2 hereof, the CU Bancorp Board hereby issues to Optionee as an
assumption of and in substitution of the Home option granted to Optionee
pursuant to the Home [year] [ISO] [NQ] Agreement, the option to purchase, upon
and subject to the terms and conditions of the 1996 Conversion Option Plan,
which is incorporated in full herein by reference, all or any part of a number
of shares of common stock of CU Bancorp equal to the product of a Conversion
Ratio (as defined in the Agreement ) times the sum of (i) [Current Number of
Shares of Home Stock Subject to Option] minus (ii) the number of shares of Home
Common Stock acquired as a result of exercise of the Home [year] [ISO] [NQ]
Agreement between the date hereof and the consummation of the Merger. The
exercise price per share of this option shall be the same exercise price per
share as the Home option being assumed, subject to adjustment as provided in
Section 2 hereof. The effective date of this issuance, however, shall be the
date of consummation of the Merger. Consummation of the Merger is a condition
precedent to the effectiveness of assumption and substitution of options under
this agreement.
2. Adjustments. The option exercise price per share of and number of
shares subject to this option shall be adjusted so that the excess of the
aggregate fair market value of the shares of CU Bancorp common stock subject to
this option at the time of consummation of the Merger over the aggregate option
price of such shares of CU Bancorp common stock shall equal the excess of the
aggregate fair market value of the shares of Home common stock subject to the
Home [year] [ISO] [NQ] Agreement immediately prior to consummation of the Merger
over the aggregate option price of such shares of Home common stock under the
Home [year] [ISO] [NQ] Agreement. Determinations of stock value and option
exercise price shall be made by CU Bancorp at the time of the consummation of
the Merger in accordance with the Agreement and this agreement. CU Bancorp may
use any reasonable valuation method, including the valuation methods described
in Treasury Regulation Section 1.425-1(a)(7). Following consummation of the
Merger, CU Bancorp shall inform Optionee in writing of the adjusted number of
shares and adjusted option exercise price per share of this option. In the event
that the adjustments provided in this section would result in an option to
acquire a fractional share of CU Bancorp common stock, the number of shares of
CU Bancorp common stock subject to this option shall be rounded down to the next
lower whole number of shares to eliminate such fractional share, and the
aggregate purchase price shall be adjusted commensurately.
3. Cancellation of Prior Option. Upon the closing date of the Merger,
and expressly contingent upon the consummation of the Merger, the Home [year]
[ISO] [NQ] Agreement is canceled, and the terms and conditions of this agreement
are wholly substituted for and replace the terms and conditions of the Home
[year] [ISO] [NQ] Agreement. The terms and conditions of this agreement override
any terms and conditions of the Home [year] [ISO] [NQ] Agreement that are
inconsistent herewith. In the event that the Merger is not consummated, the Home
[year] [ISO] [NQ] Agreement shall not be canceled.
4. Separate CU Bancorp Option Plans. The parties hereto acknowledge
that CU Bancorp maintains the 1993 CU Bancorp Stock Option Plan, as amended, the
CU Bancorp 1994 Non Employee Director Stock Option Plan, and the CU Bancorp 1996
Stock Option Plan, as amended, that are separate from the 1996
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Conversion Option Plan. The parties hereto further acknowledge that this
agreement is governed by the 1996 Conversion Option Plan.
5. Exercisability. This option shall be exercisable on each of the
[_______________ months after the date of the original grant under the Home
[year] [ISO] [NQ] Agreement]. To the extent any portion of the Home [year] [ISO]
[NQ] Agreement is exercisable on the date of the consummation of the Merger, it
shall remain exercisable hereunder. Remaining portions shall become exercisable
thereafter in accordance with the foregoing schedule. This option shall remain
exercisable as to all of such shares until the expiration date with respect to
the original grant under the Home [year] [ISO] [NQ] Agreement unless this option
has expired or terminated earlier in accordance with the provisions hereof.
Shares as to which this option becomes exercisable pursuant to the foregoing
provision may be purchased at any time prior to expiration of this option.
Notwithstanding the preceding provisions of this paragraph, upon delivery of
notice to the Optionee from the CU Bancorp Board of the pendency of dissolution
or liquidation of CU Bancorp or a reorganization, merger, or consolidation of CU
Bancorp with one or more corporations as a result of which CU Bancorp will not
be the surviving corporation, or a sale of, substantially all the assets and
property of CU Bancorp to another person, or a reverse merger in which CU
Bancorp is the surviving corporation but the shares of CU Bancorp's stock are
converted by virtue of the merger into other property (a "Terminating Event"),
this option shall be exercisable in full and not only as to those shares with
respect to which installments, if any, have then accrued. Upon the date thirty
(30) days after delivery of said notice, this option or any portion hereof not
exercised shall terminate, unless provision be made in connection with the
Terminating Event for assumption of this option or for substitution for this
option of new options covering stock of a successor employer corporation, or a
parent or subsidiary corporation thereof, solely at the option of such successor
corporation or parent or subsidiary corporation, with appropriate adjustments as
to number and kind of shares and prices.
6. Effect of Previously Granted Options. Notwithstanding any provision
of this option to the contrary, this option shall not be exercisable to any
extent at any time while there is "outstanding" (within the meaning of Section
422(c)(7) of the Code as in effect prior to the Tax Reform Act of 1986) any
incentive stock option which was granted, before the granting of this option, to
Optionee to purchase stock in Home or CU Bancorp, in a corporation which (at the
time of the granting of this option) is a parent corporation or subsidiary
corporation (as defined in Section 424 of the Code) of Home or CU Bancorp, or in
a predecessor of any of such corporations. Home options assumed under the 1996
Conversion Option Plan are not intended as the grant of new options within the
meaning of Section 422 or Section 424(h) of the Code and shall not be deemed
such a grant for purposes of the preceding sentence.
7. Exercise of Option. This option may be exercised by ten (10) days'
written notice delivered to CU Bancorp stating the number of shares with respect
to which this option is being exercised, together with cash or a check payable
to the order of CU Bancorp in the amount of the purchase price of such shares.
Optionee acknowledges that, this agreement permits the use of only cash or a
check to acquire shares. Not less than ten (10) shares may be purchased at any
one time unless the number purchased is the total number which may be purchased
under this option.
8. Cessation of Employment. Except as provided in Section 9 hereof, if
Optionee shall cease to be employed by CU Bancorp or a subsidiary corporation
for any reason other than Optionee's disability or death, this option shall
expire three (3) months thereafter or, if earlier, on the day specified in
Section 5 hereof. If Optionee shall cease to be employed by CU Bancorp or a
subsidiary corporation by reason of disability (within the meaning of Section
22(e)(3) of the Code), this option shall expire one (1) year thereafter or, if
earlier, on the date specified in Section 5 hereof. Before any such expiration,
and at times provided in the Plan, Optionee shall have the right to exercise
this option as to those shares with respect to which installments, if any, had
accrued under Section 5 hereof as of the date on which Optionee ceased to be
employed by CU Bancorp or a subsidiary
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<PAGE> 4
corporation.
9. Termination of Employment for Cause. If Optionee's employment by CU
Bancorp or a subsidiary corporation is terminated for cause, this option shall
expire immediately on the date of termination, unless such expiration is waived
by the CU Bancorp Board within thirty (30) days of such termination by giving
written notice of such waiver to Optionee at Optionee's last know address. In
the event of such waiver, Optionee may exercise this option only to such extent,
for such time, and upon such terms and conditions as if Optionee had ceased to
be employed by CU Bancorp or a subsidiary corporation upon the date of such
termination for reason other than cause, disability, or death. Termination for
cause shall include termination for 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 CU Bancorp or a subsidiary corporation, and in any event, the determination
of the CU Bancorp Board with respect thereto shall be final and conclusive.
10. Nontransferability; Death of Optionee. This option shall not be
transferable except by will or by the laws of descent and distribution and shall
be exercisable only by Optionee during Optionee's lifetime. If Optionee dies
while employed by CU Bancorp or a subsidiary corporation, or during the
three-month or one-year periods referred to in Section 8 hereof, this option
shall expire one (1) year after the date of Optionee's death or, if earlier, on
the day specified in Section 8 hereof. After Optionee's death but before such
expiration, the persons to whom Optionee's rights under this option shall have
passed by will or by the applicable laws of descent and distribution shall have
the right to exercise this option as to those shares with respect to which
installments had accrued under Section 5 hereof as of the date on which Optionee
ceased to be employed by CU Bancorp or a subsidiary corporation.
11. Employment. This agreement shall not obligate CU Bancorp or a
subsidiary corporation to employ Optionee for any period, nor shall it interfere
in any way with the right of CU Bancorp or a subsidiary corporation to terminate
Optionee or to reduce Optionee's compensation.
12. Privileges of Stock Ownership. Optionee shall have no rights as a
stockholder with respect to the common stock of CU Bancorp subject to this
option until the date of issuance of stock certificates to Optionee. Except as
provided in Section 9 of the 1996 Conversion Option Plan, no adjustment will be
made for dividends or other rights for which the record date is prior to the
date such stock certificates are issued.
13. Modification and Termination by Board of directors and Otherwise.
The rights of Optionee are subject to modification and termination in certain
events as provided in Section 9, Section 10, Section 11, and Section 12 of the
1996 Conversion Option Plan. In the event that the Merger is abandoned or is not
consummated, this option agreement shall terminate automatically.
14. Notification of Sale. Optionee agrees that Optionee, or any person
acquiring shares upon exercise of this Option, will notify CU Bancorp within
five (5) days after any sale or disposition of such shares.
15. Conditions Upon Issuance of Shares. No shares shall be issued with
respect to this option unless the exercise of this option and the issuance and
delivery of such shares pursuant thereto shall comply with all relevant
provisions of law, and the requirements of any stock exchange upon which the
shares may then be listed, and shall be further subject to the approval of
counsel for CU Bancorp with respect to such compliance.
CU Bancorp shall make all reasonable efforts to obtain from any
regulatory body having jurisdiction or authority for approvals, consents and
permits deemed by CU Bancorp's counsel to be necessary to the lawful issuance
and sale of any shares hereunder. The inability of CU Bancorp to obtain
authorization from any regulatory body having jurisdiction or authority deemed
by CU Bancorp's counsel to be necessary to the lawful
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issuance and sale of any shares hereunder shall relieve CU Bancorp of any
liability in respect to the non-issuance or sale of such shares as to which
such requisite authorization shall not have been obtained. Any share certificate
issued to evidence shares as to which this option is exercised may bear such
legends and statements as the CU Bancorp Board shall deem advisable to assure
compliance with federal and state laws and regulations. No shares shall be
issued, under this option until CU Bancorp has obtained such consent or approval
from regulatory bodies, federal or state, having jurisdiction over such matters
as the CU Bancorp Board may deem advisable.
Optionee may be required by the CU Bancorp Board to give a written
representation that the shares subject to this option will be acquired, or are
being acquired, as the case may be, for investment, and not with a view toward
public distribution of them; provided, however, that the CU Bancorp Board, in
its sole discretion, may release Optionee from any such representations either
prior to or subsequent to the exercise of this option. In the case of the
exercise of this option by a person other than Optionee, the CU Bancorp Board
may require reasonable evidence as to the ownership of this option and may
require such evidences of authority, consents and releases as the Board may deem
advisable.
16. Interpretation of Option. This option is intended to be an
"incentive stock option" [a "non-qualified stock option"] for purposes of
Section 422 of the Code and shall be construed to implement that intent. [If all
or any part of this option shall not be deemed an "incentive stock option"
within the meaning of Section 422 of the Code, this option shall nevertheless be
valid and carried into effect.] This option agreement is subject to and the
Optionee and CU Bancorp agree to be bound by, all of the terms and conditions of
the 1996 Conversion Option Plan under which this option was granted, as the same
may be amended from time to time in accordance with its terms provided that no
such amendment shall deprive the Optionee, without Optionee's consent, of this
option or of any rights hereunder.
17. Withholding Taxes. Optionee acknowledges that federal and state
income and payroll tax may apply with respect to this option. If CU Bancorp
determines, in its sole discretion, that withholding is required, Optionee
agrees that such withholding may be accomplished with respect to the cash
compensation (if any) due the Optionee from CU Bancorp or any its subsidiaries.
If withholding pursuant to the foregoing sentence is insufficient (in the sole
judgment of CU Bancorp) to satisfy the full withholding obligation, Optionee
agrees that at the election of CU Bancorp either: (a) Optionee will pay over to
CU Bancorp the amount of cash or, if permitted by applicable law and acceptable
to CU Bancorp, property with a value necessary to satisfy such remaining
withholding obligation on the date the option is exercised or at a time
thereafter specified in writing by CU Bancorp; or (b) CU Bancorp may, if
permitted by applicable law, withhold an amount of option shares equal in value
(as of the date of option exercise, to the amount of the remaining withholding
obligation. Upon due notice from Optionee and if permitted by applicable law, CU
Bancorp may satisfy the entire withholding obligation by withholding shares as
provided in (b) above in lieu of withholding from the Optionee's cash
compensation. Notwithstanding the foregoing, CU Bancorp shall be under no
obligation to transfer any shares under this option unless and until the
withholding requirements of law are satisfied in a manner satisfactory to CU
Bancorp.
18. Waivers and Acknowledgments. Optionee acknowledges that Optionee
has had the opportunity to consult with Optionee's own independent legal and tax
advisers with respect to the effects of this agreement and further acknowledges
that Optionee has not relied upon CU Bancorp, its officers, directors,
employees, agents, attorneys or accountants for any business, legal, tax or
other advice with respect to this agreement. All parties hereto acknowledge
their intent that this assumption of an Home option shall result in preservation
of the status of the assumed option as an "incentive stock option" or
"non-qualified stock option," as the case may be. However, Optionee is receiving
no representations, warranties or guaranties as to the status of this option for
tax purposes.
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19. Receipt. Optionee acknowledges receipt of a copy of the 1996
Conversion Option Plan.
IN WITNESS WHEREOF, the paries hereto have executed this Agreement.
CU Bancorp
a California corporation
By:__________________________________
Optionee:
_____________________________________
[Name of Optionee] ("Optionee")
Address:
_____________________________________
_____________________________________
AGREED TO:
HOME BANCORP,
a California corporation
By:___________________________
Title: _________________________
Attachment
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EXHIBIT 5
CU BANCORP
16030 Ventura Boulevard
Encino, California 91436
February 2, 1997
CU Bancorp
16030 Ventura Blvd.
Encino, CA 91436
Re: CU Bancorp Form S-8
Ladies and Gentlemen:
The undersigned renders this opinion as counsel to you in
connection with the issuance of up to 194,915 shares of Common Stock of CU
Bancorp under the CU Bancorp Conversion Stock Option Plan.
In connection with this opinion, the undersigned has examined
such records and documents as are necessary and appropriate, including but not
limited to the following:
1. Minutes of the Board of Directors of CU Bancorp;
2. Articles and Bylaws of CU Bancorp.
Based upon the undersigned's review of the records
and documents, and such other matters as deemed reasonable and appropriate, and
in consideration of applicable laws, I am of the opinion that the shares to be
issued by CU Bancrop have been duly authorized and when issued and paid in
accordance with the terms of the CU Bancorp Conversion Stock Option Plan, will
be legally issued, fully paid and non assessable, and free of preemptive rights.
This opinion is qualified in its entirety by reference to the
law and the facts as of the date hereof.
As to matters noted, I have relied on information provided by
CU Bancorp in preparing this opinion. I am qualified to practice law in the
state of California only and do not purport to express any opinion on the law of
any state other then California and the federal law of the United States of
America. This opinion is limited to the matters expressly set forth herein, and
no opinion is implied or may be inferred beyond the matters expressly stated
herein.
I consent to the use of my name under the caption "Legal
Matters".
Very truly yours,
Anita Y. Wolman, Esq.
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EXHIBIT 24(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 of our
reports dated January 19, 1996, and January 26, 1996 included in CU Bancorp's
report on Form 10-K for the year ended December 31, 1995 and to all references
to our Firm included in this Registration Statement.
Arthur Andersen LLP
Los Angeles, California
February 5, 1997
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