<PAGE>
As filed with the Securities and Exchange Commission on August 4, 1997
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
NORTH COUNTY BANCORP
(Exact name of issuer as specified in its charter)
California 95-3669135
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
444 South Escondido Boulevard, Escondido, California 92025
(Address of Principal Executive Offices) (Zip Code)
NORTH COUNTY BANCORP 1997 STOCK OPTION PLAN
(Full title of the plan)
Michael J. Gilligan
Vice President and Chief Financial Officer
North County Bancorp
444 South Escondido Boulevard
Escondido, California 92025
(Name and address of agent for service)
(760) 743-2200
(Telephone number, including area code, of agent for service)
Copy to:
David M. Schachter, Esquire
Fried, Bird & Crumpacker, P.C.
10100 Santa Monica Boulevard, Third Floor
Los Angeles, California 90067
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE PRICE FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, No Par Value 540,000(1) $10.625(2) $5,737,500 $1,738.64
========================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c), this Registration Statement covers, in addition
to the number of shares of Common Stock stated above, such additional
indeterminate number of shares as may become subject to options granted
under the North County Bancorp 1997 Stock Option Plan as a result of
any adjustments from stock splits, stock dividends or other
anti-dilution provisions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) on the basis of the average of
the bid and asked prices for the Common Stock on August 1, 1997.
This Registration Statement contains 34 pages, Exhibit Index on II-6.
<PAGE>
EXPLANATORY NOTE
Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act"), an Information Statement will be distributed
to all holders of options granted under the North County Bancorp 1997 Stock
Option Plan. That Information Statement and the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act (the "Section 10(a)
Prospectus").
FORM S-8 CROSS-REFERENCE SHEET SHOWING LOCATION OF
INFORMATION REQUIRED BY PART I OF FORM S-3
<TABLE>
<CAPTION>
FORM S-3 ITEM NUMBER LOCATION/HEADING IN PROSPECTUS
-------------------- ------------------------------
<S> <C>
1. Forepart of Registration Statement and Cover Page
Outside Front Prospectus of Cover Page
2. Inside Front and Outside Back Cover Page of Available Information; Documents
Prospectus Incorporated by Reference
3. Summary Information, Risk Factors and Ratio Not Applicable
of Earnings to Fixed Charges
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Selling Security Holders
8. Plan of Distribution Plan of Distribution
9. Description of Securities to be Registered Not Applicable
10. Interests of Named Experts and Counsel Experts; Legal Matters
11. Material Changes Not Applicable
12. Incorporation of Certain Information Documents Incorporated
by Reference
13. Disclosure of Commission Position on Indemnification
Indemnification for Securities Act Liabilities
</TABLE>
1
<PAGE>
REOFFER
PROSPECTUS
NORTH COUNTY BANCORP
444 SOUTH ESCONDIDO BOULEVARD
ESCONDIDO, CALIFORNIA 92025
TELEPHONE NO.: (760) 743-2200
540,000 SHARES
COMMON STOCK, NO PAR VALUE
This Prospectus relates to the subsequent resale or offer for sale
on the NASDAQ National Market System, or otherwise, of shares of common
stock, no par value ("Common Stock"), of North County Bancorp, a California
corporation (the "Company"), which may be acquired by certain persons who may
be deemed affiliates of the Company pursuant to the purchase by them of
shares of Common Stock upon the exercise of options granted to them under the
North County Bancorp 1997 Stock Option Plan (the "Plan"). In connection with
such resales or offers for sale, such persons and the brokers through whom
such shares may be sold may be deemed to be "underwriters" as that term is
defined in Section 2(11) of the Securities Act of 1933, as amended (the
"Securities Act"), although such Selling Security Holders (as defined herein)
disclaim such status. The Company will not receive any of the proceeds from
the sale of the shares offered hereby. All expenses of registration incurred
in connection with the registration under the Securities Act and the offering
of the securities hereby will be borne by the Company, but all selling and
other expenses incurred by an individual Selling Security Holder (as defined
herein) will be borne by such Selling Security Holder.
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.
No person has been authorized to give any information or to make any
representations, other than as contained herein, in connection with the offer
contained in this Reoffer Prospectus, and, if given or made, such information or
representations must not be relied upon. This Reoffer Prospectus does not
constitute an offer to sell or solicitation of an offer to buy any of the
securities offered hereby in any state to any person to whom it is unlawful to
make such offer or solicitation.
THE DATE OF THIS PROSPECTUS IS AUGUST 4, 1997.
A-1
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission") which may be inspected and copied
at the public reference facilities maintained by the Commission located at
Judiciary Plaza, 450 Fifth Street, NW, Room 1024, Washington, D.C., 20549,
and at the public reference facilities located at the regional offices of the
Commission at 7 World Trade Center, 13th Floor, New York, New York 10048, and
at the Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60651. Copies of such material can be obtained from the
Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth
Street, NW, Washington, D.C. 20549, at prescribed rates. The Commission
maintains a Web site that contains reports, proxy and information statements
and other information regarding registrants that file electronically such as
the Company. The address of such site is (http://www.sec.gov).
A copy of any document incorporated by reference into the
Registration Statement (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated
by reference into the information that the Registration Statement
incorporates) of which this Reoffer Prospectus forms a part but which is not
delivered with this Reoffer Prospectus will be provided by the Company
without charge to any person (including any beneficial owner) to whom this
Reoffer Prospectus has been delivered, upon the oral or written request of
such person. Such requests should be directed to Michael J. Gilligan, Vice
President and Chief Financial Officer, North County Bancorp, 444 South
Escondido Boulevard, Escondido, California 92025.
PLAN OF DISTRIBUTION
The shares of Common Stock covered by this Reoffer Prospectus are
being registered by the Company for the account of the Selling Security
Holders. The Company understands that none of such shares will be offered
through underwriters. The Common Stock of the Company is quoted on the
NASDAQ National Market System.
Shares of Common Stock covered by this Reoffer Prospectus may be
offered and sold from time to time by the Selling Security Holders through
the NASDAQ National Market System, the over-the-counter market, negotiated
transactions or otherwise, at the prices prevailing at the time of such
sales, at prices relating to such prevailing market prices or at prices
otherwise negotiated. To the Company's knowledge, no specific brokers or
dealers have been designated by the Selling Security Holders nor has any
agreement been entered into in respect of brokerage commissions or for the
exclusive or coordinated sale of any securities which may be offered pursuant
to this Reoffer Prospectus. The Selling Security Holders and any broker
dealer through whom sales are made by the Selling Stockholders may be
regarded as "underwriters" within the meaning of the Securities Act, although
the Selling Security Holders disclaim such status, and their compensation may
be regarded as underwriters' compensation.
The Company will not receive any of the proceeds from the offering
hereunder. All expenses of registration incurred in connection with this
offering are being borne by the Company, but all selling and other expenses
incurred by an individual Selling Security Holder will be borne by such
Selling Security Holder.
On August l, 1997, the closing sales price of the Common Stock, as
reported in the NASDAQ National Market System, was $10.625.
A-2
<PAGE>
SELLING SECURITY HOLDERS
This Reoffer Prospectus relates to shares of Common Stock which
may be acquired by certain key employees and directors (collectively, the
"Selling Security Holders") of the Company, each of whom may be deemed to be
"affiliates" of the Company, pursuant to the exercise of options granted to
such persons under the Plan. The address of each Selling Security Holder is
c/o North County Bancorp, 444 South Escondido Boulevard, Escondido,
California 92025.
At this time, the names of the Selling Security Holders have not
yet been ascertained. Once their names become known and the amounts of
securities held by them for resale become known, the Company will file a
supplement(s) to this Reoffer Prospectus in accordance with Rule 424(b)
promulgated under the Securities Act.
DOCUMENTS INCORPORATED BY REFERENCE
Incorporated herein by reference and made a part hereof are:
1. The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1996, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act").
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997 and the Company's Quarterly Reports on Form 10-QSB for the
quarters ended March 31, 1996, June 30, 1996 and September 30, 1996, filed
pursuant to Section 13(a) of the Exchange Act.
3. The Company's Proxy Statement for its Annual Meeting of
Shareholders held on May 21, 1997, filed pursuant to Section 14 of the
Exchange Act.
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on
March 16, 1990 pursuant to Section 12 of the Exchange Act, including any
amendments or reports filed for the purpose of updating such description.
All of such documents are on file with the Commission. All
documents which will be subsequently filed by the Company pursuant to Section
13(a), 13(c) or 14 of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities to be offered
pursuant hereto have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated by reference into this
Reoffer Prospectus and to be a part hereof from the date of the filing of
such documents.
EXPERTS
The consolidated financial statements and financial statement
schedules of the Company as of December 31, 1996 and 1995 and for each of the
years in the three-year period ended December 31, 1996, have been
incorporated by reference herein in reliance upon the reports of Price
Waterhouse LLP, independent certified accountants, and upon the authority of
said firm as experts in accounting and auditing.
A-3
<PAGE>
LEGAL MATTERS
Certain legal matters with respect to the Common Stock being offered
hereby are being passed upon by Fried, Bird & Crumpacker, P.C., Los Angeles,
California, special counsel for the Company.
INDEMNIFICATION
Section 317 of the California General Corporation Law (the
"Corporation Law") contains provisions for the indemnification of directors
and officers on terms substantially identical to those contained in the
Company's Bylaws. Pursuant to California law, a corporation shall have the
power to indemnify an officer or director who was or is a party or is
threatened to be made a party in a proceeding by reason of his position as an
officer or director if the officer or director acted in good faith, in the
best interest of the corporation and with such care as an ordinarily prudent
person in a like position would use under the circumstances. To the extent
that a director or officer is successful on the merits in the defense of
certain proceedings, the Company is required to indemnify such party against
expenses actually and reasonably incurred. Otherwise, indemnification of
officers and directors must be authorized by the corporation in each specific
case, after a determination is made by a majority vote of a quorum of
directors not parties to the proceeding, or by independent legal counsel, or
by the approval of a majority of the stockholders voting for such approval,
or by the court in which the proceeding was or is pending.
Section 204(a)(11) of the Corporation Law provides for the
indemnification, subject to certain limitations, of directors and officers
for breach of their duty to the Company and its stockholders in excess of
that expressly permitted by Section 317 of the Corporation Law. The
Company's Articles of Incorporation, as amended, contain a provision
implementing Section 204(a)(11).
Section 317 of the Corporation Law also provides that a
corporation shall have the power to purchase and maintain insurance on behalf
of any agent of the corporation against any liabilities asserted against or
incurred by the agent in such capacity. The Company maintains an officers'
and directors' liability insurance policy insuring the Company's officers and
directors against certain liabilities and expenses incurred by them in their
capacities as such, and insuring the Company under certain circumstances, in
the event that indemnification payments are made by the Company to such
officers and directors.
Section 21 of the Plan provides that the Company shall indemnify
and hold harmless a member or members of the Board of Directors in any action
brought against such member or members to the maximum extent permitted by the
applicable law.
A-4
<PAGE>
TABLE OF CONTENTS NORTH COUNTY BANCORP
Available Information............ A-2
Plan of Distribution............. A-2
Selling Security Holders......... A-3
Documents Incorporated
by Reference.................... A-3 ______________________
Experts.......................... A-3
Legal Matters.................... A-4 540,000 Shares
Indemnification.................. A-4 COMMON STOCK
NO PAR VALUE
_________________________________________ ______________________
North County Bancorp has filed with
the Securities and Exchange Commission,
Washington, D.C., a Registration Statement
under the Securities Act of 1933 with
respect to this Offering. This Prospectus REOFFER
omits certain information contained in the PROSPECTUS
Registration Statement. The information
omitted may be obtained from the Securities
and Exchange Commission upon payment of the
regular charge therefor.
_____________________
August 4, 1997
A-5
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been or will be in the future
filed by North County Bancorp, a California corporation (the "Company"), with
the Securities and Exchange Commission (the "Commission"), are hereby
incorporated by reference into this Registration Statement:
1. The Company's latest Annual Report on Form 10-KSB for the year
ended December 31, 1996, filed pursuant to Section 13(a) the Securities
Exchange Act of 1934, as amended, (the "Exchange Act").
2. All other reports filed by the Company pursuant to Section 13(a)
of the Exchange Act since the end of the fiscal year covered by the annual
report referred to above.
3. The description of the Company's Common Stock that is contained in
the Company's Registration Statement on Form 8-A filed with the Commission on
March 16, 1990, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c) or 14 of the Exchange Act after the date hereof 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
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement, the Section 10(a) Prospectus, and the Reoffer
Prospectus which is set forth herein, and to be a part hereof and thereof
from the date of filing of such documents. (The Section 10(a) Prospectus and
the Reoffer Prospectus may be referred to herein collectively as the
"Prospectuses".) Any statement contained in the documents incorporated, or
deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
Prospectuses to the extent that a statement contained herein or therein or in
any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein 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 and the Prospectuses.
All information appearing in this Registration Statement and the
Prospectuses is qualified in its entirety by the detailed information,
including financial statements, appearing in the documents incorporated
herein or therein by reference.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 317 of the California General Corporation Law (the
"Corporation Law") contains provisions for the indemnification of directors
and officers on terms substantially identical to those contained in the
Company's Bylaws. Pursuant to California law, a corporation shall have the
power to indemnify an officer or director who was or is a party or is
threatened to be made a party in a proceeding by reason of his position as an
officer or director if the officer or director acted in good faith, in the
best interest of the corporation and with such care as an ordinarily prudent
person in a like position would use under the circumstances. To the extent
that an officer or director is successful on the merits in the defense of
certain proceedings, the Company is required to indemnify such party against
expenses actually and reasonably incurred. Otherwise, indemnification of
officers and directors must be authorized by the corporation in each specific
case, after a determination is made by a majority vote of a quorum of
directors not parties to the proceeding, or by independent legal counsel, or
by the approval of a majority of the stockholders voting for such approval,
or by the court in which the proceeding was or is pending.
Section 204(a)(11) of the Corporation Law provides for the
indemnification, subject to certain limitations, of directors and officers
for breach of their duty to the Company and its stockholders in excess of
that expressly permitted by Section 317 of the Corporation Law. The
Company's Articles of Incorporation, as amended, contain a provision
implementing Section 204(a)(11).
Section 317 of the Corporation Law also provides that a
corporation shall have the power to purchase and maintain insurance on behalf
of any agent of the corporation against any liabilities asserted against or
incurred by the agent in such capacity. The Company maintains an officers'
and directors' liability insurance policy insuring the Company's officers and
directors against certain liabilities and expenses incurred by them in their
capacities as such, and insuring the Company under certain circumstances, in
the event that indemnification payments are made by the Company to such
officers and directors.
Section 21 of the North County Bancorp 1997 Stock Option Plan (the
"Plan") provides that the Company shall indemnify and hold harmless a member
or members of the Board of Directors in any action brought against such
member or members to the maximum extent permitted by the applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4 North County Bancorp 1997 Stock Option Plan, form of
Incentive Stock Option Agreement and form of Non-Qualified
Stock Option Agreement.
5.1 Opinion of Fried, Bird & Crumpacker, P.C. regarding legality
of the Common Stock.
23.1 Consent of Fried, Bird & Crumpacker, P.C. (filed as part of
Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
II-2
<PAGE>
ITEM 9. 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(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; and
(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
Company pursuant to Section 13 of the Exchange Act that are incorporated by
reference into this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
THE REGISTRANT. 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 Escondido, State of
California, on August 4, 1997.
NORTH COUNTY BANCORP
By /s/ Michael J. Gilligan
--------------------------
Michael J. Gilligan
Vice President and
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of NORTH COUNTY BANCORP (the
"Company"), do hereby constitute and appoint James M. Gregg and Michael J.
Gilligan, or either of them, our true and lawful attorneys-in-fact, with full
power of substitution, to sign a Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission, and to do any and all acts
and things and to execute any and all instruments for us and in our names in
the capacities indicated below, which said attorneys, or either one of them,
may deem necessary or advisable to enable the Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with
such Registration Statement, including specifically, but without limitation,
power and authority to sign for us or any of us in our names and in the
capacities indicated below, any and all amendments (including post-effective
amendments) hereto; and we do hereby ratify and confirm all that the said
attorneys and agents, or any of them, shall do or cause to be done by virtue
of this power of attorney.
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
------------------ ----- -----
<S> <C> <C>
/s/ Alan P. Chamberlain
----------------------------------- Director August 4, 1997
Alan P. Chamberlain
/s/ G. Bruce Dunn
----------------------------------- Director August 4, 1997
G. Bruce Dunn
/s/ Michael J. Gilligan
----------------------------------- Vice President and Chief August 4, 1997
Michael J. Gilligan Financial Officer (Principal
Accounting Officer)
/s/ Ronald K. Goode
----------------------------------- Director August 4, 1997
Ronald K. Goode
/s/ James M. Gregg
----------------------------------- Chief Executive Officer and August 4, 1997
James M. Gregg Chairman of the Board
/s/ Rodney D. Jones
----------------------------------- President, Chief Operating August 4, 1997
Rodney D. Jones Officer and Director
/s/ Jack Port
----------------------------------- Director August 4, 1997
Jack Port
/s/ Raymond V. Stone
----------------------------------- Director August 4, 1997
Raymond V. Stone
/s/ Clarence R. Smith
----------------------------------- Director August 4, 1997
Clarence R. Smith
/s/ Burnet F. Wohlford
----------------------------------- Director and Corporate August 4, 1997
Burnet F. Wohlford Secretary
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
PAGE NUMBER
IN SEQUENTIAL
NUMBERING
EXHIBIT NUMBER DESCRIPTION SYSTEM
- -------------- ----------- --------------
4 North County Bancorp 1997 Stock Option
Plan, as amended, form of Incentive Stock
Option Agreement and form of Non-Qualified
Stock Option Agreement.
5.1 Opinion of Fried, Bird & Crumpacker
regarding legality of the Common Stock.
23.1 Consent of Fried, Bird & Crumpacker (filed
as part of Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
II-6
<PAGE>
EXHIBIT 4
NORTH COUNTY BANCORP 1997 INCENTIVE STOCK OPTION PLAN
FORM OF INCENTIVE STOCK OPTION AGREEMENT
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
<PAGE>
NORTH COUNTY BANCORP
1997 STOCK OPTION PLAN
ADOPTED APRIL 16, 1997
1. PURPOSE. The purpose of the North County Bancorp 1997 Stock
Option Plan (the "Plan") is to strengthen NORTH COUNTY BANCORP (the
"Company") and those corporations which are or hereafter become subsidiary
corporations of the Company, within the meaning of Section 424(f) of the
Internal Revenue Code of 1986, as amended (the "Code"), by providing to
participating employees and directors added incentive for high levels of
performance and for unusual efforts to increase the earnings of the Company
and its subsidiary corporations. The Plan seeks to accomplish those purposes
and results by providing a means whereby such employees and directors may
purchase shares of the Common Stock of the Company pursuant to (a) options
granted pursuant to the Incentive Stock Option Plan (the "Incentive Plan")
(Division A hereof), or (b) options granted pursuant to the Non-Qualified
Stock Option Plan (the "Non-Qualified Plan") (Division B hereof) which are
intended to be non-qualified stock options as described in Treas. Reg.
Section 1.83-7 to which Section 421 of the Code does not apply
("Non-Qualified Options"). (Hereinafter the term "Options" shall refer
collectively to Incentive Options and Non-Qualified Options.)
2. ADMINISTRATION. This Plan shall be administered by the Board
of Directors of the Company (the "Board of Directors"). Any action of the
Board of Directors with respect to administration of the Plan will be taken
pursuant to a majority vote of its members; provided, however, that with
respect to action taken by the Board of Directors in granting an option to an
individual director, such action must be authorized by the required number of
directors without counting the interested director, who will abstain as to
any vote on his or her option. An interested director may be counted in
determining the presence of a quorum at a meeting of the Board of Directors
where such action will be taken.
Subject to the express provisions of the Plan, the Board of
Directors shall have the authority to construe and interpret the Plan, and to
define the terms used herein, to prescribe, amend, and rescind rules and
regulations relating to administration of the Plan, to determine the duration
and purposes of leaves of absence which may be granted to participants
without constituting a termination of their employment for purposes of the
Plan, and to make all other determinations necessary or advisable for
administration of the Plan, including without limitation, compliance with
Rule 16b-3 promulgated pursuant to the Securities Exchange Act of 1934, as
amended. Determinations of the Board of Directors on matters referred to in
this section shall be final and conclusive.
<PAGE>
3. PARTICIPATION; LIMITATION ON AMOUNT OF OUTSTANDING OPTIONS.
All employees of the Company and its subsidiary corporations are eligible for
selection to receive both Incentive Options and Non-Qualified Options under
the Plan. Directors of the Company and its subsidiary corporations who are
not also employees of the Company or a subsidiary corporation are eligible to
receive only Non-Qualified Options under the Plan. Subject to the express
provisions of the Plan, the Board of Directors shall select from the eligible
class and determine the individuals who shall receive Options, whether such
Options shall be Incentive Options or Non-Qualified Options, and the terms and
provisions of the Options (which need not be identical), and shall grant such
Options to such individuals. An individual who has been granted an Option
(an "Optionee") may, if such individual is otherwise eligible, be granted
additional Options if the Board of Directors shall so determine.
4. STOCK SUBJECT TO THE PLAN. Subject to adjustment as provided
in Section 13 hereof, the stock to be offered under the Plan shall be shares
of the Company's authorized but unissued common stock, no par value
(hereinafter called "stock"), and the aggregate amount of stock to be
delivered upon exercise of all Options granted under the Plan, whether
Incentive Options or Non-Qualified Options, shall not exceed Five Hundred
Forty Thousand (540,000) shares. If any Option shall expire for any reason
without having been exercised in full, the unpurchased shares subject thereto
shall again be available for purposes of the Plan.
5. OPTION PRICE. The purchase price of stock subject to each
Option shall be determined by the Board of Directors but shall not be less
than one hundred percent (100%) of the fair market value of such stock at the
time such Option is granted. As to any Incentive Option to an Optionee who,
immediately before the Option is granted, owns beneficially more than ten
percent (10%) of the outstanding stock of the Company, the purchase price
must be at least one hundred ten percent (110%) of the fair market value of
the stock at the time when such Option is granted. The fair market value of
such stock shall be determined in accordance with any reasonable valuation
method, including the valuation methods described in Treas. Reg. Section
20.2031-2. The purchase price of any shares purchased shall be paid in full
in cash at the time of each such purchase.
6. OPTION PERIOD. Each Option and all rights or obligations
thereunder shall expire on such date as the Board of Directors may determine,
but not later than ten (10) years from the date such Option is granted, and
shall be subject to earlier termination as provided elsewhere in the Plan.
As to any Incentive Option granted to an Optionee who, immediately before the
option is granted, owns beneficially more than ten percent (10%) of the
outstanding stock of the Company (whether acquired upon exercise of Options
or otherwise), such option must not be exercisable by its terms after five
(5) years from the date of its grant.
2
<PAGE>
7. CONTINUATION OF EMPLOYMENT. In the case of employees, nothing
contained in the Plan (or in any Option agreement) shall obligate the Company
or its subsidiary corporations to employ any Optionee for any period or
interfere in any way with the right of the Company or its subsidiary
corporations to reduce such Optionee's compensation.
8. EXERCISE OF OPTIONS. Each Option shall be exercisable in such
installments, which need not be equal, and upon such conditions as the Board
of Directors shall determine; provided, however, that if an Optionee shall
not in any given installment period purchase all of the shares which such
Optionee is entitled to purchase in such installment period, such Optionee's
right to purchase any shares not purchased in such installment period shall
continue until the expiration of such Option. No Option or installment
thereof shall be exercisable except of whole shares, and fractional share
interests shall be disregarded except that they may be accumulated in
accordance with the next preceding sentence. Options may be exercised by ten
(10) days written notice delivered to the Company stating the number of
shares with respect to which the Option is being exercised, together with
cash in the amount of the purchase price for such shares. No fewer than ten
(10) shares may be purchased at one time unless the number purchased is the
total number which may be purchased under the Option. As a condition to the
exercise of a Non-Qualified Option in whole or in part, by an Optionee who is
an employee of the Company or any of its subsidiary corporations (or who was
an employee during the term of the Option), the Optionee shall be required to
pay to the Company, in addition to the purchase price for the shares being
exercised, an amount equal to any taxes required to be withheld by the
Company in order to enable the Company to claim a deduction in connection
with the exercise of the Option.
9. NONTRANSFERABILITY OF OPTIONS. Each Option shall, by its
terms, be nontransferable by the Optionee, other than by Will or the laws of
descent and distribution, and shall be exercisable during such Optionee's
lifetime only by the Optionee.
10. CESSATION OF EMPLOYMENT; DISABILITY. Except as provided in
Sections 6 and 11 hereof, if an Optionee ceases to be employed by or ceases
to serve as a director of the Company or a subsidiary corporation for any
reason other than death or disability, such Optionee's Option shall expire
ninety (90) days thereafter, and during such period after such Optionee
ceases to be an employee or director, such Option shall be exercisable only
as to those shares with respect to which installments, if any, had accrued as
of the date on which the Optionee ceased to be employed by or ceased to serve
as a director of the Company or such subsidiary corporation. Except as
provided in Sections 6 and 11, if an Optionee ceases to be employed by or
ceases to serve as a director of the Company or a subsidiary corporation by
reason of disability (within the meaning of
3
<PAGE>
Section 22(e)(3)of the Code), such Optionee's Option shall expire not later
than one (1) year thereafter, and during such period after such Optionee
ceases to be an employee or director, such Option shall be exercisable only
as to those shares with respect to which installments, if any, had accrued as
of the date on which the Optionee ceased to be employed by or ceased to serve
as a director of the Company or such subsidiary corporation.
11. TERMINATION OF EMPLOYMENT FOR CAUSE. If an Optionee's
employment by or service as director of the Company or a subsidiary
corporation is terminated for cause, such Optionee's Option shall expire
immediately; provided, however, that the Board of Directors may, in its sole
discretion, within thirty (30) days of such termination, waive the expiration
of the Option by giving written notice of such waiver to the Optionee at such
Optionee's last known address. In the event of such waiver, the Optionee may
exercise the Option only to such extent, for such time, and upon such terms
and conditions as if such Optionee had ceased to be employed by or ceased to
serve as a director of the Company or such subsidiary corporation upon the
date of such termination for a reason other than cause, disability, or death.
In the case of an employee, termination for causes shall include termination
for malfeasance or gross misfeasance in the performance of duties, conviction
of illegal activity in connection therewith, any conduct seriously
detrimental to the interests of the Company or a subsidiary corporation, or
removal pursuant to the exercise of regulatory authority by the Board of
Governors of the Federal Reserve System (the "FRB") or any applicable bank
supervisory agency; and in any event, the determination of the Board of
Directors with respect thereto shall be final and conclusive. In the case of
a director, termination for cause shall include removal pursuant to Section
302 or 304 of the California Code or removal pursuant to the exercise of
regulatory authority by the FRB or any applicable bank supervisory agency.
12. DEATH OF OPTIONEE. Except as provided in Section 6 hereof, if
any Optionee dies while employed by or serving as a director of the Company
or a subsidiary corporation or during the 90-day or one-year period referred
to in Section 10 hereof, such Optionee's Option shall expire one (1) year
after the date of such death. After such death but before such expiration,
the persons to whom the Optionee's rights under the Option shall have passed
by Will or by the applicable laws of descent and distribution shall have the
right to exercise such Option to the extent that installments, if any, had
accrued as of the date on which the Optionee ceased to be employed by or
ceased to serve as a director of the Company or such subsidiary corporation.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If the outstanding
shares of the stock of the Company are increased, decreased, or changed
into, or exchanged for a different
4
<PAGE>
number or class of shares or securities of the Company, without receipt of
consideration by the Company, through reorganization, merger
reclassification, stock split, stock dividend, stock consolidation, or
otherwise, an appropriate and proportionate adjustment shall be made in the
number and class of shares as to which Options may be granted. A
corresponding adjustment changing the number or class 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. No fractional shares of stock shall be
issued under the Plan on account of any such adjustment.
14. TERMINATING EVENTS. Not less than thirty (30) days prior to a
"Terminating Event," i.e., a dissolution or liquidation of the Company; or a
reorganization, merger, or consolidation of the Company with one or more
corporations as a result of which the Company will not be the surviving
entity; or a sale of substantially all the assets and property of the Company
to another person; or in the event of any other transaction involving the
Company where there is a change in ownership of at least twenty-five percent
(25%), except as may result from a transfer of shares to another corporation
in exchange for at least eighty percent (80%) control of that corporation,
the Board of Directors 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 Section 8
thereof, exercisable in full and not only as to those shares with respect to
which installments, if any, have then accrued, subject, however, to earlier
expirations or termination as provided elsewhere in the Plan. Upon the date
sixty (60) 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 Plan and any Options granted thereunder shall terminate, unless
provision is made in connection with the Terminating Event for assumption of
Options therefore granted by the successor or acquirer, as applicable, or
substitution for such Options of new options covering stock of a successor
employer corporation, or a parent or subsidiary corporation thereof, with
appropriate adjustments as to number and class of shares and prices.
15. AMENDMENT AND TERMINATION BY BOARD OF DIRECTORS. The Board of
Directors may at any time suspend, amend, or terminate the Plan and may,
with the consent of any Optionee, make such modification of the terms and
conditions of such Optionee's Option as it shall deem advisable, provided
that, except as permitted under the provisions of Section 13 hereof, any
amendment or modification of the Plan which would:
(a) increase the maximum number of shares which may be purchased
pursuant to Options granted under the Plan;
5
<PAGE>
(b) change the minimum option price;
(c) increase the maximum term of Options provided for herein; or
(d) permit Options to be granted to anyone other than a director or
employee of the Company or a subsidiary corporation,
requires the approval of the Company's shareholders as described below. Any
amendment or modification requiring shareholder approval shall be deemed
adopted as of date of the action of the Board of Directors effecting such
amendment or modification and shall be effective immediately, unless
otherwise provided therein, subject to approval thereof within twelve (12)
months before or after the effective date by shareholders of the Company
holding not less than a majority of the voting power of the Company;
provided, however, that the Board of Directors may amend that Plan IN TOTO
without shareholder approval if the Plan has not yet been approved by the
shareholders.
Notwithstanding the above, the Board of Directors may grant to
an Optionee, if such Optionee is otherwise eligible, additional Options or,
with the consent of the Optionee, grant a new Option in lieu of an
outstanding Option for a number of shares, at a purchase price and for a term
which in any respect is greater or less than that of the earlier Option,
subject to the limitations of Sections 5, 6, and A-2 hereof.
No Option may be granted during any suspension of the Plan or
after termination of the Plan. Amendment, suspension, or termination of the
Plan shall not, without the consent of the Optionee, alter or impair any
rights or obligations under any Option outstanding prior to such amendment,
suspension or termination of the Plan.
16. TIME OF GRANTING OPTIONS. The time an Option is granted,
sometimes referred to as the date of grant, shall be the date of the action of
the Board of Directors described in the second sentence of Section 2 hereof;
provided, however, that if appropriate resolutions of the Board of Directors
indicate that an Option is to be granted as of and on some future date, the
time such Option is granted shall be such future date. If action by the
Board of Directors is taken by unanimous written consent of its members, the
action of the Board of Directors shall be deemed to be at the time the last
Board member signs the consent.
6
<PAGE>
17. PRIVILEGES OF STOCK OWNERSHIP; SECURITIES LAWS COMPLIANCE;
NOTICE OF SALE. No Optionee shall be entitled to the privileges of stock
ownership as to any shares of stock not actually issued and delivered. No
shares shall be issued upon the exercise of any Option unless and until any
then applicable requirements of any regulatory agencies having jurisdiction,
and of any exchanges upon which stock of the Company may be listed, shall be
listed, shall have been fully complied with. The Company will diligently
endeavor to comply with all applicable securities laws before any Options are
granted under the Plan and before any stock is issued pursuant to Options.
The Company shall register the underlying shares of common stock with the
Securities and Exchange Commission and deliver to each Optionee an
Information Statement relating to the Plan which meets the requirements of
Section 10(a) of the Securities Act of 1933, as amended. With respect to
Options granted to affiliates of the Company or its subsidiary corporations,
the Company shall file a reoffer prospectus and any required prospectus
supplements to facilitate the disposition of such shares of stock owned by
such affiliates after the exercise of Options granted thereto. Additionally,
the Optionee shall comply with all applicable federal and state securities
laws in connection with any sale or other disposition of such common stock.
18. EFFECTIVE DATE OF THE PLAN. The Plan shall be deemed adopted
as of the date first shown herein and shall be effective immediately, subject
to approval hereof within twelve (12) months before or after said date by
shareholders holding not less than a majority of the voting power of the
Company.
19. TERMINATION. Unless previously terminated by the Board of
Directors or as provided in Section 14 hereof, the Plan shall terminate at
the close of business on April 16, 2007 and no Options shall be granted under
it thereafter, but such terminations shall not affect any Option theretofore
granted.
20. OPTION AGREEMENT. Each Option shall be evidenced by a written
Stock Option Agreement executed by the Company and the Optionee and shall
contain each of the provisions and agreements herein specifically required to
be contained therein, including whether the Option is an Incentive Option or
Non-Qualified Option, and such other terms and conditions as are deemed
desirable and are not inconsistent with the Plan.
21. EXCULPATION AND INDEMNIFICATION. The Company shall indemnify
and hold harmless each member of the Board of Directors in any action brought
against such member or members to the maximum extent permitted by then
applicable law and the Articles of Incorporation and Bylaws of the Company
and any amendments thereto.
7
<PAGE>
DIVISION A
INCENTIVE STOCK OPTION PLAN
A-1. ELIGIBLE PERSONS. All employees of the Company and its subsidiary
corporations shall be eligible for selection to participate in the Incentive
Plan. Notwithstanding any provision of this Plan to the contrary, no director
of the Company or any subsidiary corporation who is not an employee of the
Company or any subsidiary corporation may be granted options under the
Incentive Plan.
A-2. LIMIT ON EXERCISABILITY OF OPTIONS. The aggregate fair market value
(determined as of the time the Option is granted) of the stock for which any
employee may be granted Incentive Options which are FIRST EXERCISABLE during
any one calendar year (under all Incentive Stock Option Plans for such
employee's employer corporation and its parent and subsidiary corporations)
shall not exceed One Hundred Thousand Dollars ($100,000), regardless of any
unused limits of previous years.
A-3. INCORPORATION BY REFERENCE. The provisions of Sections 5, 6, 9 and
18 of the Plan are hereby incorporated by this reference into this Incentive
Stock Option Plan.
A-4. INTERPRETATION OF PLAN. Options granted pursuant to the Incentive
Plan are intended to be "incentive stock options" within the meaning of
Section 422 of the Code, and the Incentive Plan shall be constructed to
implement that intent. If all or any part of an Incentive Option shall not be
deemed an "incentive stock option" within the meaning of Section 422 of the
Code, said Option shall nevertheless be valid and carried into effect as a
Non-Qualified Option.
DIVISION B
NON-QUALIFIED STOCK OPTION PLAN
B-1. ELIGIBLE PERSONS. All directors and employees of the Company and
its subsidiary corporations shall be eligible for selection to participate in
the Non-Qualified Plan.
B-2. INTERPRETATION OF PLAN. Options granted pursuant to the
Non-Qualified Plan are intended to be non-qualified stock options described
in Treas. Reg. Section 1.83-7 to which Section 421 of the Code does not
apply, and the Non-Qualified Plan shall be constructed to implement that
intent.
8
<PAGE>
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO SHARES OF THE
COMPANY'S STOCK SHALL BE ISSUED PURSUANT HERETO UNLESS THE COMPANY'S STOCK
OPTION PLAN SHALL HAVE FIRST BEEN APPROVED BY SHAREHOLDERS OF THE COMPANY
HOLDING NOT LESS THAN A MAJORITY OF THE VOTING POWER OF THE COMPANY.
NORTH COUNTY BANCORP
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is dated the _____ day of __________, _____, by and
between North County Bancorp, a California corporation (the "Company"), and
________________________ ("Optionee").
WHEREAS, pursuant to Division A of the North County Bancorp 1997
Stock Option Plan (the "Plan"), the Board of Directors of the Company has
authorized granting to Optionee an incentive stock option to purchase all or
any part of ____________________________________ (_________) authorized but
unissued shares of common stock of the Company, for cash at the price of
______________________________ Dollars ($__________) per share, such option
to be for the term and upon the terms and conditions hereinafter stated; and
WHEREAS, the Company has provided to Optionee a copy of that certain
"Information Statement" which describes the material terms and provisions of
the Plan and of this Agreement and contains certain other material
information relating to the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, it is hereby agreed as follows:
1. GRANT OF OPTION. Pursuant to said action of the Board of
Directors and pursuant to authorizations granted by all appropriate
regulatory and governmental agencies, the Company hereby grants to Optionee
the option to purchase, upon and subject to the terms and conditions of the
Plan, which is incorporated in full herein by reference and is available to
Optionee upon request, all or any part of __________________________________
_____________________ (__________) shares of common stock of the Company at
the price of _________________ Dollars ($__________) per share, which price
is not less than one hundred percent (100%) of the fair market value of such
stock as of the date of action of the Board of Directors granting this option.
<PAGE>
2. EXERCISABILITY. This option shall be exercisable as to ________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
This option shall remain exercisable as to all of such shares until ___________,
_______ 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 the expiration of this option. In no event, however, shall
the value of shares of stock, which may be the subject of any incentive
option hereunder and which are first exercisable during any one year, exceed
$100,000. Notwithstanding the preceding provisions of this paragraph, upon
delivery of notice to Optionee from the Board of Directors of the pendency of
a "Terminating Event," i.e., a dissolution or liquidation of the Company; or
a reorganization, merger, or consolidation of the Company with one or more
corporations as a result of which the Company will not be the surviving
entity; or a sale of substantially all the assets and property of the Company
to another person; or in the event of any other transaction involving the
Company where there is a change in ownership of at least twenty-five percent
(25%), except as may result from a transfer of shares to another corporation
in exchange for at least eighty percent (80%) control of that corporation,
this option shall be exercisable in full and not only as to those shares with
respect to which installments, if any, have then accrued subject, however, to
earlier termination or expiration as provided elsewhere in the Plan. Upon the
date sixty (60) days after receipt of said notice, this option or any portion
hereof not exercised shall terminate, unless provision is made in connection
with the Terminating Event for assumption of this option by the successor or
acquiror, as applicable, or for substitution for this option of new options
covering stock of a successor employer corporation, or a parent or subsidiary
corporation thereof, with appropriate adjustments as to number and class of
shares and prices.
3. EXERCISE OF OPTION. This option may be exercised by ten (10)
days' written notice delivered to the Company stating the number of shares
with respect to which this option is being exercised, together with cash in
the amount of the purchase price of such shares. No fewer 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.
2
<PAGE>
4. CESSATION OF EMPLOYMENT. Except as provided in Paragraph 5
hereof, if Optionee shall cease to be employed by the Company or a subsidiary
corporation for any reason other than Optionee's disability or death, this
option shall expire ninety (90) days thereafter or, if earlier, on the date
specified in Paragraph 2 hereof. If Optionee shall cease to be employed by
the Company or a subsidiary corporation by reason of disability (within the
meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended
(the "Code")), this option shall expire one (1) year thereafter or, if
earlier, on the date specified in Paragraph 2 hereof. Before any such
expiration, Optionee shall have the right to exercise this option as to those
shares with respect to which installments, if any, had accrued under
Paragraph 2 hereof.
5. TERMINATION OF EMPLOYMENT FOR CAUSE. If Optionee's employment
by the Company or a subsidiary corporation is terminated for cause, this
option shall expire immediately, unless such expiration is waived by the
Board of Directors within thirty (30) days of such termination by giving
written notice of such waiver to Optionee at Optionee's last known 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 the Company or a subsidiary corporation upon the
date of such termination for a reason other than cause, disability, or death.
Termination for cause shall include termination for malfeasance or gross
misfeasance in the performance of duties, conviction of illegal activity in
connection therewith, any conduct seriously detrimental to the interests of
the Company or a subsidiary corporation, or removal pursuant to the exercise
of regulatory authority by the Board of Governors of the Federal Reserve
System (the "FRB") or any bank supervisory agency; and in any event, the
determination of the Board of Directors with respect thereto shall be final
and conclusive.
6. 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 the Company or a subsidiary corporation, or
during the 90-day or one-year period referred to in Paragraph 4 hereof, this
option shall expire one (1) year after the date of Optionee's death or, if
earlier, on the date specified in Paragraph 2 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 Paragraph 2 hereof as of
the date on which Optionee ceased to be employed by the Company or a
subsidiary corporation.
3
<PAGE>
7. EMPLOYMENT. This Agreement shall not obligate the Company or a
subsidiary corporation to employ Optionee for any period, nor shall it
interfere in any way with the right of the Company or a subsidiary
corporation to reduce Optionee's compensation.
8. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall have no rights
as a stockholder with respect to common stock of the Company subject to this
option until the date of issuance of stock certificates to Optionee. Except
as provided in Section 13 of the 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.
9. MODIFICATION AND TERMINATION BY BOARD OF DIRECTORS. The rights
of Optionee are subject to modification and termination in certain events as
provided in Section 15 of the Plan, but only with the consent of Optionee.
10. INTERPRETATION OF OPTION. This option is intended to be an
"incentive stock option" within the meaning 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, said option shall nevertheless be valid and carried
into effect as a "non-qualified option" subject to Division B of the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
NORTH COUNTY BANCORP
By_______________________
By_______________________
______________________________
______________________________
OPTIONEE
4
<PAGE>
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO SHARES OF THE
COMPANY'S STOCK SHALL BE ISSUED PURSUANT HERETO UNLESS THE COMPANY'S STOCK
OPTION PLAN SHALL HAVE FIRST BEEN APPROVED BY SHAREHOLDERS OF THE COMPANY
HOLDING NOT LESS THAN A MAJORITY OF THE VOTING POWER OF THE COMPANY.
NORTH COUNTY BANCORP
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is dated the _____ day of __________, _____, by and
between North County Bancorp (the "Company"), and _________________________
("Optionee").
WHEREAS, pursuant to Division B of the North County Bancorp 1997
Stock Option Plan (the "Plan"), the Board of Directors of the Company has
authorized granting to Optionee a stock option to purchase all or any part of
___________________________________________ (__________) authorized but
unissued shares of common stock of the Company, for cash at the price of
____________________________________ Dollars ($__________) per share, such
option to be for the term and upon the terms and conditions hereinafter set
forth; and
WHEREAS, the Company has provided to Optionee a copy of that certain
"Information Statement" which describes the material terms and provisions of
the Plan and of this Agreement and contains certain other material
information relating to the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, it is hereby agreed as follows:
1. GRANT OF OPTION. Pursuant to said action of the Board of
Directors and pursuant to authorizations granted by all appropriate
regulatory and governmental agencies, the Company hereby grants to Optionee
the option to purchase, upon and subject to the terms and conditions of the
Plan, which is incorporated in full herein by reference and is available to
Optionee upon request, all or any part of________________________________
(_______) shares of common stock of the Company at the price of
____________________________ Dollars ($__________) per share, which price is
not less than one hundred percent (100%) of the fair market value of such
stock as of the date of action of the Board of Directors granting this
option.
<PAGE>
2. EXERCISABILITY. This option shall be exercisable as___________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
This option shall remain exercisable as to all of such shares until _________
_________________________________, ________________ 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
provisions may be purchased at any time prior to expiration of this option.
Notwithstanding the preceding provisions of this paragraph, upon delivery of
notice to Optionee from the Board of Directors of the pendency of a
"Terminating Event," i.e., a dissolution or liquidation of the Company; or a
reorganization, merger, or consolidation of the Company with one or more
corporations as a result of which the Company will not be the surviving
entity; or a sale of substantially all the assets and property of the Company
to another person; or in the event of any other transaction involving the
Company where there is a change in ownership of at least twenty-five percent
(25%), except as may result from a transfer of shares to another corporation
in exchange for at least eighty percent (80%) control of that corporation,
this option shall be exercisable in full and not only as to those shares with
respect to which installments, if any, have then accrued, subject, however,
to earlier termination or expiration as provided elsewhere in the Plan. Upon
the date sixty (60) days after receipt of said notice, this option or any
portion hereof not exercised shall terminate, unless provision is made in
connection with the Terminating Event for assumption of this option by the
successor or acquiror, as applicable, or for substitution for this option of
new options covering stock of a successor employer corporation, or a parent
or subsidiary corporation thereof, with appropriate adjustments as to number
and class of shares and prices.
3. EXERCISE OF OPTION. This option may be exercised by ten (10)
days' written notice delivered to the Company stating the number of shares
with respect to which this option is being exercised, together with cash in
the amount of the purchase price of such shares. No fewer 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. As a condition to the
exercise of this option, in whole or in part, by an Optionee who is an
employee of the Company or any of its subsidiaries (or who was an employee
during the term of the option), Optionee shall be required to pay to the
Company, in addition to the purchase price for the shares being exercised, an
amount equal to any taxes required to be withheld by the Company in order to
enable the Company to claim a deduction in connection with the exercise of
the option.
2
<PAGE>
4. CESSATION OF EMPLOYMENT. Except as provided in Paragraph 5
hereof, if Optionee shall cease to be employed by or cease to serve as a
director of the Company or a subsidiary corporation for any reason other than
Optionee's disability or death, this option shall expire ninety (90) days
thereafter or, if earlier, on the date specified in Paragraph 2 hereof. If
Optionee shall cease to be employed by or cease to serve as a director of the
Company or a subsidiary corporation by reason of disability (within the
meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended
(the "Code")), this option shall expire one (1) year thereafter or, if
earlier, on the date specified in Paragraph 2 hereof. Before any such
expiration, Optionee shall have the right to exercise this option as to those
shares with respect to which installments, if any, had accrued under
Paragraph 2 hereof.
5. TERMINATION OF EMPLOYMENT FOR CAUSE. If Optionee's employment
by or service as a director of the Company or a subsidiary corporation is
terminated for cause, this option shall expire immediately, unless such
expiration is waived by the Board of Directors within thirty (30) days of
such termination by giving written notice of such waiver to Optionee at
Optionee's last known 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 or ceased to be a
director of the Company or a subsidiary corporation upon the date of such
termination for a reason other than cause, disability, or death. In the case
of an employee, termination for cause shall include termination for
malfeasance or gross misfeasance in the performance of duties, conviction of
illegal activity in connection therewith, any conduct seriously detrimental
to the interests of the Company or a subsidiary corporation, or removal
pursuant to the exercise of regulatory authority by the Board of Governors of
the Federal Reserve System (the "FRB") or any bank supervisory agency; and
in any event, the determination of the Board of Directors with respect
thereto shall be final and conclusive. In the case of a director,
termination for cause shall include removal pursuant to Section 302 or 304 of
the California Corporations Code or removal pursuant to the exercise of
regulatory authority by the FRB or any bank supervisory agency.
6. 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 or serving as a director of the Company or a
subsidiary corporation, or during the 90-day or one-year period referred to
in Paragraph 4 hereof, this option shall expire one (1) year after the date
of Optionee's death or, if
3
<PAGE>
earlier, on the date specified in Paragraph 2 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 Paragraph 2 hereof as of
the date on which Optionee ceased to be employed by or ceased to serve as a
director of the Company or a subsidiary corporation.
7. EMPLOYMENT. In the event Optionee is an employee, this
Agreement shall not obligate the Company or a subsidiary corporation to
employ Optionee for any period, nor shall it interfere in any way with the
right of the Company or a subsidiary corporation to reduce Optionee's
compensation.
8. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall have no rights
as a stockholder with respect to common stock of the Company subject to this
option until the date of issuance of stock certificates to Optionee. Except
as provided in Section 13 of the 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.
9. MODIFICATION AND TERMINATION BY BOARD OF DIRECTORS. The rights
of Optionee are subject to modification and termination in certain events as
provided in Section 15 of the Plan, but only with the consent of Optionee.
10. INTERPRETATION OF OPTION. This option is intended to be a
non-qualified stock option described in Treas. Reg. Section 1.83-7 to which
Section 421 of the Code does not apply and shall be construed to implement
that intent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first above written.
NORTH COUNTY BANCORP
BY____________________
BY____________________
______________________________
______________________________
OPTIONEE
4
<PAGE>
EXHIBITS 5.1 AND 23.1
OPINION OF FRIED, BIRD & CRUMPACKER, P.C.
REGARDING LEGALITY OF COMMON STOCK
<PAGE>
[LETTERHEAD]
August 1, 1997
North County Bancorp
444 South Escondido Boulevard
Escondido, California 92025
Re: Form S-8 Registration Statement for
the North County Bancorp 1997
Stock Option Plan
------------------------------------
Dear Sirs:
We have acted as counsel for North County Bancorp, a California
corporation (the "Company"), in connection with the offer and sale of an
aggregate of up to 540,000 shares of the Company's Common Stock, no par value
(collectively, the "Shares"), to certain key employees and directors of the
Company and its subsidiaries pursuant to the terms and conditions of the
above-referenced Stock Option Plan (the "Plan").
We have examined and relied upon such documents, records and matters of
law as we have deemed necessary for the purpose of rendering this opinion,
including, without limitation, the Articles of Incorporation of the Company,
as amended, the Bylaws of the Company, Minutes of the proceedings of
directors of the Company, the Plan and related forms and agreements, and the
above-referenced Registration Statement. We have made no independent
investigation into any of the factual matters relevant to our opinion and
have relied solely on the representations as to the such matters made by
responsible officers of the Company.
Based on the foregoing, it is our opinion that the Shares issuable upon
exercise of stock options granted under the Plan have been duly authorized,
and, when issued in accordance with the provisions of the Plan, the
individual option agreements and the Registration Statement, against payment
of the consideration provided therefor, the Shares will be legally issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Form S-8 Registration Statement being filed by the Company to maintain
registration of the Shares under the Securities Act of 1933, as amended, and
to the reference to this firm under the heading "Legal Matters" in the
Reoffer Prospectus and under the heading "Federal Income Tax Status of
Options" in the Section 10(a) Prospectus, both of which form a part of such
Registration Statement.
Very truly yours,
Fried, Bird & Crumpacker, P.C.
EXHIBIT 5.1
<PAGE>
EXHIBIT 23.2
CONSENT OF PRICE WATERHOUSE LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF PRICE WATERHOUSE LLP
We hereby consent to the incorporation by reference in the Reoffer Prospectus
constituting part of this Registration Statement on Form S-8 of our report
dated February 19, 1997 included in North County Bancorp's Form 10-KSB for
the year ended December 31, 1996. We also consent to the references to us
under the Heading "Experts" in such Reoffer Prospectus.
/s/ Price Waterhouse LLP
---------------------
Price Waterhouse LLP
July 31, 1997
