Registration Statement No. 33-78242
As filed with the Securities and Exchange Commission on March 18, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------------------
POST-EFFECTIVE AMENDMENT NO. 1 to
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BAY AREA BANCSHARES
(Exact name of registrant as specified in its charter)
California 94-2779021
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
Number)
900 Veterans Boulevard
Redwood City, California 94063
(Address of Principal Executive Offices)
Bay Area Bancshares 1993 Stock Option Plan
(Full title of the plan)
Anthony Gould
Chief Financial Officer
Bay Area Bancshares
900 Veterans Boulevard
Redwood City, California 94063
(Name and address of agent for service)
(415) 367-1600
(Telephone number, including area code, of agent of service)
with copies to:
Jay D. Pimentel
Joan L. Grant
c/o Haines, Brydon & Lea
A Law Corporation
235 Pine Street, Suite 1300
San Francisco, California 94104
Telephone: (415) 981-1050
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Pursuant to the Note to Part 1, the document or documents containing
the Part 1 information have not been included in the registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant's Annual Report on Form 10-K, filed pursuant to Section
13 of the Securities Exchange Act of 1934, for the fiscal year ended December
31, 1996, is hereby incorporated by reference into this registration statement.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of filing of such documents.
The information contained in the documents incorporated by reference is
qualified by the information contained in this registration statement. Any
statement contained herein, or 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incorporated by reference herein, shall be deemed to be modified or superseded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 in any subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not, except as so modified or
superseded, be deemed to constitute a part of this registration statement.
Item 4. Description of Securities.
Authorized Shares - General
The authorized capital stock of the Corporation consists of 20,000,000
shares of common stock, no par value, and 10,000,000 shares of preferred stock.
Each share of common stock has the same rights, preferences and privileges as
every other share of common stock. The common stock has no conversion or
redemption rights or sinking funds provisions. Holders of the common stock are
entitled to participate in such dividends as may be declared by the Board out of
funds legally available therefor and, in the event of liquidation, dissolution
or winding up of the Corporation, are entitled to share ratably in all assets
remaining after the payment of liabilities and the payment to preferred
shareholders. The Corporation's common shares are not subject to assessment
under the applicable law.
The transfer agent and registrar for the Corporation's common stock is
U.S. Stock Transfer Corporation of Glendale, California.
Voting Rights
Each share of common stock is entitled to one vote on any issue
requiring a vote and holders of the common stock have the right to cumulate
votes in elections of directors, as described below.
California law provides that a shareholder of a California corporation,
or his proxy, may cumulate votes in elections for directors, that is, each
shareholder has a number of votes equal to the number of shares owned by him,
multiplied by the number of directors to be elected, and he may cumulate such
votes for a single candidate or distribute such votes among as many candidates
as he deems appropriate. However, a shareholder may cumulate votes only for a
candidate or candidates whose names have been properly placed in nomination
prior to the voting and only if the shareholder has given notice at the meeting,
prior to the voting, of his intention to cumulate his votes. If any one
shareholder has given such notice, all shareholders may cumulate votes for
candidates in nomination.
Except as set forth below with respect to the voting rights of the
preferred shares, holders of the Corporation's common stock have the exclusive
right to notice of shareholders' meetings and the exclusive right to vote at
shareholders' meetings, and the Corporation's Articles of Incorporation may be
amended by the affirmative vote of the holders of a majority of the common stock
of the Corporation. The approval of the holders of two-thirds (2/3) of the
Series A preferred shares is required for the Corporation to do any of the
following:
1. Amend or repeal any provision of, or add any provision to, the
Corporation's Articles of Incorporation, if such action would alter or change
the rights, preferences, privileges, or powers of, or the restrictions provided
for the benefit of, any Series A Shares, so as to affect such Series A Shares
adversely; or
2. Increase the authorized number of the Series A Shares; or
3. Create any new class of shares having preferences over or being on a
parity with the Series A shares as to dividends or assets, unless the purpose of
creation of such class is, and the proceeds to be derived from the sale and the
issuance thereof are to be used for, the retirement of all Series A Shares then
outstanding; or
4. Purchase any common stock; or
5. Sell, lease, exchange, transfer, convey, or otherwise dispose of, or
create or incur any mortgage, lien, charge or encumbrance on or security
interest in or pledge of, or sell and leaseback, all or substantially all of the
property or business of the Corporation.
Nominations of Directors
The Corporation's Bylaws provide that nominations for directors by
shareholders may be made, provided that certain informational requirements
concerning the identities of the nominating shareholder and the nominee are
complied with in advance of the meeting. The written nomination must include the
following information: (a) the name and address of each proposed nominee, (b)
the principal occupation of each proposed nominee, (c) the number of shares of
the Corporation owned by each proposed nominee, (d) the name and residence
address of the nominating shareholder, and (e) the number of shares of voting
stock of the corporation owned by the nominating shareholder. This provision is
intended to provide advance notice to management of any effort to effect an
election contest or a change in control of the Board of Directors.
Dividends
The dividend policy of the Corporation is subject to the discretion of
the Board of Directors and depends upon a number of factors, including earnings,
financial condition, cash needs and general business conditions. In addition,
the Board of Directors may declare dividends only out of funds legally available
therefor.
The California General Corporation Law provides that a corporation may
make a distribution if its retained earnings at least equal the amount of the
proposed distribution. In the event that sufficient retained earnings are not
available for the proposed distribution, a corporation may nevertheless make a
distribution if, immediately after giving effect to the proposed distribution,
it meets both the "quantitative solvency" and the "liquidity" tests, as set
forth in the law. In general, the quantitative solvency test requires that the
sum of the assets of the corporation equal at least 1-1/4 times its liabilities.
The liquidity test generally requires that a corporation have current assets at
least equal to current liabilities or, if the average of earnings of the
corporation before taxes on income and before interest expense for the two
preceding fiscal years was less than the average of the interest expense of the
corporation for such fiscal years, current assets must equal at least 1-1/4
times current liabilities.
The Corporation's primary source of income is the receipt of dividends
from its subsidiary, the Bank. The Bank's ability to pay dividends is subject to
the restrictions of the California Financial Code, which restricts the amount
available for cash dividends to the lesser of the retained earnings or the
Bank's net income for its last three fiscal years (less any distributions to
shareholders made during such period). Where the above test is not met, cash
dividends may still be paid, with the prior approval of the California
Commissioner of Financial Institutions, in an amount not exceeding the greatest
of (1) the retained earnings of the bank; (2) the net income of the bank for its
last fiscal year; or (3) the net income of the bank for its current fiscal year.
On December 31, 1997, the Bank was legally able to pay dividends.
Issuance of Additional Shares
The Corporation has authorized capital stock consisting of 20,000,000
common shares and 10,000,000 preferred shares. Such shares have been authorized
in order that the Corporation may, in the future, raise additional capital for
growth purposes or to respond to regulatory capital requirements. While the
Corporation has no present plans to do so, such shares may be offered without
the approval of the then shareholders of the Corporation. Authorized but
unissued shares are sometimes used in connection with responses to attempts to
acquire control of a corporation. Although the Board of Directors is not aware
of and does not anticipate any attempt to acquire control of the Corporation,
authorized but unissued shares can be used to respond to such attempts by
selling shares to a party who supports existing management or in order to
increase the number of shares outstanding, which would both increase the amount
of consideration necessary to effect a change in control of the Corporation and
dilute the percentage ownership and voting rights of an acquiror that had
already acquired some portion of the Corporation's outstanding stock.
Preemptive Rights
Holders of the common stock of the Corporation do not have preemptive
rights, that is, any rights to subscribe for additional shares or other
securities which the Corporation may issue in the future. Therefore, future
shares of the Corporation's common stock or other securities may be offered to
the investing public or to shareholders, at the discretion of the Corporation's
Board of Directors.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article FOUR of the Registrant's Articles of Incorporation provides
that the Registrant is authorized to indemnify its directors, officers,
employees and other agents as follows:
"FOUR: (a) The liability of the directors of the corporation for
monetary damages shall be eliminated to the fullest extent permissible under
California law.
"(b) This corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the Corporations Code) through bylaw
provisions, agreements with the agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject to the limits of such
excess indemnification set forth in Section 204 of the California Corporations
Code with respect to actions for breach of duty to the corporation and its
shareholders."
Article VI of the Registrant's Bylaws provides for indemnification of
directors, officers, employees and other "agents" of the corporation as follows:
"ARTICLE VI
"Indemnification
"Section 1. Definitions. For the purposes of this Article,
"agent" includes any person who is or was a Director, officer, employee, or
other agent of the corporation, or is or was serving at the request of the
corporation as a Director, officer, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, or other enterprise, or
was a Director, officer, employee, or agent of a foreign or domestic corporation
which was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation; "proceeding" includes any
threatened, pending, or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes without limitation
attorneys' fees and any expenses of establishing a right to indemnification
pursuant to law.
"Section 2. Extent of Indemnification. The corporation shall,
to the maximum extent permitted by the California General Corporation Law,
advance expenses to and indemnify each of its agents against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding arising by reason of the fact any such person
is or was an agent of the corporation.
"Section 3. Insurance. The corporation shall have power to
purchase and maintain insurance on behalf of any agent of the corporation
against any liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such whether or not the corporation
would have the power to indemnify the agent against such liability under the
provisions of this Article."
The provisions of the California General Corporation Law relating to
indemnification of directors, officers, employees and other agents of a
corporation, as presently in effect, are set forth in Sections 204 and 317,
copies of which are included in this Registration Statement as Exhibit 99.
The Registrant maintains directors' and officers' liability insurance
which covers certain liabilities and expenses of officers and directors of the
Registrant and covers the Registrant for reimbursement of payments to directors
and officers in respect of such liabilities and expenses.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Bay Area Bancshares 1993 Stock Option Plan *
4.2 Amendment No. 1 to the Bay Area Bancshares 1993 Stock Option
Plan
4.3 Form of Incentive Stock Option Agreement (employees who are
not directors)
4.4 Form of Incentive Stock Option Agreement (employees who are
directors)
4.5 Form of Stock Option Agreement (nonemployee-directors or
consultants)
5. Opinion of Holmes & Lea (now Haines, Brydon & Lea) *
24.1 Consent of Holmes & Lea (contained in Exhibit 5) (now Haines,
Brydon & Lea) *
24.2 Consent of Coopers & Lybrand LLP **
25. Power of Attorney (contained in the signature page hereof)
99. Sections 204 and 317 of the California General Corporation
Law, with respect to indemnification
* Filed as an exhibit to the original registration statement.
** Filed as an exhibit to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.
Item 9. Undertakings.
The undersigned registrant hereby undertakes (1) to file, during any
period in which it offers or sells securities, a post-effective amendment to
this Registration Statement to include any additional or changed material
information on the plan of distribution; (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; and
(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 this
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Redwood City, State of California, on March 9, 1998.
BAY AREA BANCSHARES
by /s/Robert S. Haight
Robert R. Haight
Chairman of the Board, President
and Chief Executive Officer
Each person whose signature appears below hereby authorizes Robert R. Haight and
Anthony J. Gould and each and any of them, as attorneys-in-fact and agents, with
full powers of substitution, to sign on his or her behalf, individually and in
the capacities stated below, and to file any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 with the
Securities and Exchange Commission, granting to said attorneys-in-fact and
agents full power and authority to perform any other act on behalf of the
undersigned.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
______*_______ Director and Secretary March 9, 1998
Gary S. Goss
Chairman of the Board of Directors,
/s/Robert S. Haight President and Chief Executive Officer March 9. 1998
Robert S. Haight
/s/Stanley A. Kangas Director March 10, 1998
Stanley A. Kangas
________*_________ Director March 9, 1998
David J. Macdonald
________*_________
Thorwald A. Madsen Director March 9, 1998
/s/Dennis W. Royer Director March 3, 1998
Dennis W. Royer
________*_______ Chief Financial (Accounting) Officer March 9, 1998
Anthony J. Gould
*by/s/Robert R. Haight
Robert R. Haight, under Power of
Attorney dated
April 19, 1994
Exhibit Index
4.2 Amendment No. 1 to the Bay Area Bancshares 1993 Stock Option Plan
4.3 Form of Incentive Stock Option Agreement (employees who are not directors)
4.4 Form of Incentive Stock Option Agreement (employees who are directors)
4.5 Form of Stock Option Agreement (nonemployee-directors or consultants)
99 Sections 204 and 317 of the California General Corporation Law, with
respect to indemnification
AMENDMENT NO. 1 TO
BAY AREA BANCSHARES
1993 STOCK OPTION PLAN
This Amendment No. 1 to the Bay Area Bancshares 1993 Stock Option Plan ("Plan")
is adopted by the Board of Directors of Bay Area Bancshares ("Corporation") with
reference to the following:
RECITALS:
A. The Board of Directors of the Corporation desires to amend
the Plan to increase the number of shares for which options may be granted,
subject to the approval of the shareholders of the Corporation;
B. The Board of Directors also desires to amend the Plan to provide
that options may be exercised by the delivery of a note of the optionee for some
or all of the exercise price; and
C.
THEREFORE, the Plan is hereby amended as follows:
1. Section 2 of the Plan is hereby amended in full to read as follows:
"2. STOCK SUBJECT TO OPTION
"Subject to adjustment as provided in Section 6(g) hereof, options
under the Plan may be granted to participants by the Corporation from time to
time to purchase an aggregate of Seven Hundred Fifty Thousand (750,000) shares;
provided, however, that at no time shall the total number of shares issuable
upon exercise of all outstanding options, plus the total number of shares
provided for under any compensation plan of the Corporation pursuant to which
shares of stock may be issued to participants, exceed 30% of the then
outstanding shares of the Corporation. For purposes of calculating the aggregate
number of shares of Common Stock which may be issued under the Plan:
"(a) Shares of Common Stock applicable to the unexercised portions of
options which have terminated or expired may again be made subject to options
under the Plan, if at such time options may still be granted under the Plan; and
"(b) All the shares issued (including the shares, if any, withheld for
tax withholding requirements) shall be counted upon exercise of an option, even
if shares of Common Stock are delivered to the Corporation as payment for the
exercise."
2. Subsection 6(d) of the Plan is hereby amended in full to read as
follows:
"(d) Manner of Exercise. To the extent that the right to
purchase shares has accrued hereunder,
options may be exercised from time to time by written notice to the Corporation
stating the number of shares with respect to which the option is being
exercised, and the time of the delivery thereof, which shall not be less than
fifteen (15) days and not more than thirty (30) days after the giving of such
notice, unless an earlier date shall have been mutually agreed upon. Shares of
Common Stock purchased under options shall, at the time of the notice specifying
the date of delivery, be paid for in full, with cash or Common Stock that is
owned by the optionee, or by delivery of the optionee's note in the form of
Exhibit A and the Stock Pledge Agreement in the form of Exhibit B to this
Amendment No. 1 to the Plan. To the extent payment is being made with cash, the
optionee shall deliver a certified or official bank check or the equivalent
thereof acceptable to the Corporation. If shares of Common Stock are tendered as
payment, such shares shall be valued at their fair market value, as determined
by the Corporation, on the date of the notice given to the Corporation by the
optionee with respect to such exercise. At the time specified in the notice for
delivery of the certificate, the Corporation shall, without transfer or issue
tax to the optionee (or other person entitled to exercise the option), deliver
to the optionee (or other person entitled to exercise the option) at the
principal office of the Corporation, or such other place as shall be mutually
acceptable, a certificate or certificates for such shares; provided, however,
that the time of such delivery may be postponed by the Corporation for such
period as may be required for it with reasonable diligence to comply with any
requirements of law. If the optionee (or other person entitled to exercise the
option) fails to pay for all or any part of the number of shares specified in
such notice or fails to accept delivery of such shares upon tender of delivery
thereof, the right to exercise the option with respect to such undelivered
shares may be terminated. The Board may require that a partial exercise of
options be for no less than a stated minimum of shares."
3. Subsection 6(f) of the Plan is hereby amended by adding the
following paragraph (5) to the end of the subsection:
"(5) Notwithstanding the foregoing, if the employment of an
optionee who is an officer or the service of an optionee who is a director or
consultant is "Terminated or Modified", as defined below, as a result of and
within 24 months of a Change of Control, as defined below, and if any option
held by that optionee is not fully vested at the time of such Termination or
Modification, the remaining installments may vest immediately upon such
Termination or Modification, if that is provided in the agreement representing
such option. For purposes of this paragraph, "Terminated or Modified" is defined
as a change in the optionee's employment terms that results in a reduction of
economic benefits to the optionee from the Corporation, including but not
limited to a reduction in compensation, and "Change of Control" is defined as a
merger, acquisition or change of control that requires notice to or approval of
State or Federal banking regulators."
4. Subsection 6(g) of the Plan is hereby amended to read as follows:
"(g) Adjustments or Changes in Stock; Change in Control
"(1) In the event that the outstanding shares of common stock
of the Corporation are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Corporation or of another corporation, by reason of reorganization, merger,
consolidation, recapitalization, reclassification, stock split, combination of
shares, dividend payable in common stock, or acquisition, or any similar
transaction, in which the Corporation receives no additional consideration other
than shares or other securities, appropriate adjustment shall be made by the
Board under the Plan in the number and kind of shares for the purchase of which
options may granted under the Plan. In addition, the Board shall make
appropriate adjustment in the number and kind of shares as to which outstanding
options or portions thereof then unexercised, shall be exercisable, so that any
participant's proportionate interest in the Corporation by reason of rights
under unexercised portions of such option shall be maintained as before the
occurrence of such event. Such adjustment in outstanding options shall be made
without change in the total price applicable to the unexercised portion of the
option and with a corresponding adjustment, if necessary, in the option price
per share.
"(2) In the event of a dissolution or liquidation of the
Corporation, a merger, consolidation, acquisition, or other reorganization
involving the Corporation or a principal subsidiary, in which the Corporation or
such principal subsidiary is not the surviving or resulting corporation, or a
sale by the Corporation or by a principal subsidiary of all or substantially all
of its assets, the Board shall cause the termination of all options outstanding
hereunder as of the effective date of such transaction, provided, however, that
advance notice of the expected effective date of such transaction shall be given
to each optionee, to the extent practicable, and each optionee shall have the
right to exercise his or her option until the date of such termination as to all
or any part of the shares as to which such option is at that time exercisable.
In any event, the surviving or resulting corporation may, in its absolute and
uncontrolled discretion, tender options to purchase its shares on its terms and
conditions.
"(3) The agreements for option granted to officers, directors
and consultants may provide that the vesting of those options will accelerate in
the event such option is terminated under paragraph (2) immediately above. Such
acceleration shall be effective from the date of the advance notice to optionees
of the expected effective date of the transaction until the date the option
terminates."
5. Except as amended herein, the Plan shall remain in full force and
effect.
[For incentive options
granted to employees who
are not also directors]
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement") is made as
of the day of , 19 , by and between BAY AREA BANCSHARES, a
California corporation ("Corporation"), and
("Optionee").
RECITAL
The Board of Directors of the Corporation (the "Board")
pursuant to the Bay Area Bancshares 1993 Stock Option Plan ("Plan"), has
determined that it desires to grant to Optionee, pursuant to the Plan and as an
incentive for increased efforts during his or her service in the employ of , an
"incentive stock option," as defined in Section 422 of the Internal Revenue Code
of 1986, as amended, to purchase shares of the common stock of the Corporation
on the terms and conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
1. Stock Subject to Option. The Corporation hereby grants to
Optionee, under and pursuant to the Plan, the right and option ("Option") to
purchase, on the terms and conditions hereinafter set forth, an aggregate of
shares of the Corporation's common stock, no par value. The Option is hereby
designated as an "incentive stock option," as defined in Section 422 of the
Internal Revenue Code of 1986, as amended.
2. Exercise of Option. The Option may be exercised at any
time, in whole or in part, during the term of the Option, as provided for in
Section 4 herein. OR The Option may be exercised upon such terms and conditions
as the Board shall determine; provided, however, that the Option shall vest and
be exercisable in installments as follows: [state installment schedule, if any]
. [If there is an installment schedule and if optionee is an officer, add
subsections 7(d) and 8(c)] CONTINUE IN EITHER CASE In no event, however, shall
the Corporation be required to issue fractional shares.
3. Option Price. The purchase price for shares upon exercise
of the Option shall be $ per share, which is 100% of the per share fair market
value [110% of the per share fair market value, in the
case of a 10% shareholder,] of the shares of the Corporation's common stock as
of the date of grant of the Option, said value having been established by the
Board pursuant to the Plan. Optionee is in agreement that $ is the fair market
value of the shares of the Corporation's common stock as of the date of the
grant of the Option.
4. Term of Option. The term of this Agreement and Option shall
commence on the date hereof, and expire ten (10) years from the date hereof,
that is, at 5:00 p.m. Pacific Time, on ,
, or at such earlier time as provided herein.
5. Manner of Exercise. To the extent that the right to
purchase shares has vested hereunder, the Option may be exercised from time to
time by written notice to the Corporation stating the number of shares with
respect to which the Option is being exercised, and the time of the delivery
thereof, which shall not be less than fifteen (15) days and not more than thirty
(30) days after the giving of such notice, unless an earlier date shall have
been mutually agreed upon. Shares of common stock purchased pursuant to the
exercise of the Option shall, at the time of the notice specifying the date of
delivery, be paid for in full, with cash or common stock that is owned by
Optionee, or by delivery of the Optionees's Note in the form of Exhibit A and
Stock Pledge Agreement in the form of Exhibit B to this Agreement. To the extent
payment is being made with cash, Optionee shall deliver a certified or official
bank check or the equivalent thereof acceptable to the Corporation. If shares of
common stock are tendered as payment, such shares shall be valued at their fair
market value, as determined by the Corporation, on the date of the notice given
to the Corporation by Optionee with respect to such exercise. At the time
specified in the notice for delivery of the certificate, the Corporation shall,
without transfer or issue tax to Optionee (or other person entitled to exercise
the Option), deliver to Optionee (or other person entitled to exercise the
Option) at the principal office of the Corporation, or such other place as shall
be mutually acceptable, a certificate or certificates for such shares; provided,
however, that the time of such delivery may be postponed by the Corporation for
such period as may be required for it with reasonable diligence to comply with
any requirements of law. If Optionee (or other person entitled to exercise the
Option) fails to pay for all or any part of the number of shares specified in
such notice or fails to accept delivery of such shares upon tender of delivery
thereof, the right to exercise the Option with respect to such undelivered
shares may be terminated. The Board may require that a partial exercise of the
Option be for no less than a stated minimum of shares.
6. Non-Assignability of Option Rights. During Optionee's
lifetime, the Option may be exercised only by Optionee, and the Option is
non-assignable, except by will or comparable testamentary instrument, or by the
laws of descent and distribution. In the event of any attachment, execution, or
similar process upon the Option, the Corporation shall, as soon as practicable,
notify Optionee of such process and, if Optionee does not within a reasonable
time (but not to exceed sixty (60) days) obtain an appropriate release of the
Option from such process, the Corporation may exercise its right to terminate
the Option by notice to Optionee. The Option shall thereupon become null and
void.
7. Termination of Employment.(a) In the event that Optionee is
no longer an employee of the Corporation or one of its subsidiaries for any
reason, the Option shall terminate immediately; provided, however, that Optionee
shall have the right, subject to the provisions of Section 4 hereof with respect
to the maximum term of the Option, to exercise the Option, at any time within
three (3) months from the day he or she ceases to be an employee to the extent
that he or she was entitled to exercise the same immediately prior to such day,
except as provided below. Whether an authorized leave of absence on military or
government service or for other reasons shall constitute a termination of
employment for purposes of this Agreement shall be determined by the Board, and
such determination of the Board shall be final and conclusive.
(b) If Optionee shall become disabled, the three (3) month
period specified in Subsection 7(a) shall be six (6) months.
(c) If Optionee shall die while an employee, or within not
more than three (3) months from the date when he or she ceases to be an
employee, his or her estate, personal representative, or beneficiary shall have
the right, subject to the provisions of Section (4) hereof, to exercise the
Option, at any time within six (6) months from the date of death, to the extent
that he or she was entitled to exercise the Option immediately prior to death.
[for options granted to officers with installment schedules:
(d) Notwithstanding the foregoing, if the employment of the Optionee is
"Terminated or Modified", as defined below, as a result of and within 24 months
of a Change of Control, as defined below, and if this Option is not fully vested
at the time of such Termination or Modification, the remaining installments may
vest immediately upon such Termination or Modification. For purposes of this
paragraph, "Terminated or Modified" is defined as a change in the Optionee's
employment terms that results in a reduction of economic benefits to the
Optionee from the Corporation, including but not limited to a reduction in
compensation, and "Change of Control" is defined as a merger, acquisition or
change of control that requires notice to or approval of State or Federal
banking regulators.]
8. Adjustments or Changes in Stock; Change in Control. (a) In
the event that the outstanding shares of common stock of the Corporation are
hereafter increased or decreased or changed into or exchanged for a different
number or kind of shares or other securities of the Corporation or of another
corporation, by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split, combination of shares, dividend
payable in common stock, or acquisition, or any similar transaction, in which
the Corporation receives no additional consideration other than shares or other
securities, appropriate adjustment shall be made by the Board under the Plan in
the number and kind of shares as to which the Option or portion thereof then
unexercised shall be exercisable, so that Optionee's proportionate interest in
the Corporation by reason of rights under unexercised portions of the Option
shall be maintained as before the occurrence of such event. Such adjustment in
the Option shall be made without change in the total price applicable to the
unexercised portion of the Option and with a corresponding adjustment, if
necessary, in the option price per share.
(b) In the event of a dissolution or liquidation of the Corporation, a
merger, consolidation, acquisition, or other reorganization involving the
Corporation or a principal subsidiary, in which the Corporation or such
principal subsidiary is not the surviving or resulting corporation, or a sale by
the Corporation or by a principal subsidiary of all or substantially all of its
assets, the Board shall cause the termination of the Option as of the effective
date of such transaction, provided, however, that advance notice of the expected
effective date of such transaction shall be given to Optionee, to the extent
practicable, and Optionee shall have the right to exercise the Option until the
date of such termination as to all or any part of the shares as to which the
Option is at that time exercisable.
[for options granted to officers with installment schedules:
(c) In the event this Option is terminated under paragraph (b) immediately
above, any portion of this Option that is not vested as of the date of the
advance notice to Optionee of the expected effective date of the transaction
shall become vested and the Option shall be exercisable in full from the date of
such notice until the date the Option terminates.]
9. Rights as a Shareholder. Optionee shall have no rights as a
shareholder with respect to any shares of common stock of the Corporation until
the date of issuance of a stock certificate to Optionee for such shares. No
adjustment shall be made for dividends or other rights for which the record date
is prior to the date of such issuance, except as otherwise provided in Paragraph
8 herein.
10. Notification of Sale. Optionee shall promptly notify the
Corporation in writing of any sale, transfer or other disposition of any shares
acquired by Optionee as a result of exercising all or any part of the Option
granted hereunder, which are sold, transferred or otherwise disposed of within
two (2) years from the date of grant of the Option and/or within one (1) year
from the date of the acquisition of shares by Optionee through exercise of the
Option.
11. Withholding Taxes. Whenever the Corporation proposes or is
required to issue or transfer shares of common stock under this Agreement, the
Corporation shall have the right to require Optionee to remit to the Corporation
an amount sufficient to satisfy any Federal, state and/or local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares. Alternatively, the Corporation may issue or transfer such shares of
common stock net of the number of shares sufficient to satisfy the withholding
tax requirements. For withholding tax purposes, the shares of common stock shall
be valued on the date the withholding obligation is incurred.
12. No Obligation to Exercise. The granting of the Option
hereunder shall impose no obligation upon Optionee to exercise the Option as to
the shares or any portion thereof covered thereby.
13. Incorporation of Bay Area Bancshares 1993 Stock Option
Plan. The Option is granted by the Corporation pursuant to the Plan, adopted by
the Board and approved by the shareholders of the Corporation. The parties
hereby agree that the terms and conditions of the Plan, as now in effect, shall,
by this reference, be incorporated in this Incentive Stock Option Agreement as
though set forth in full. Optionee acknowledges receipt of a copy of the Plan. A
copy of the Plan shall also be maintained at the principal office of the
Corporation and made available to Optionee for inspection during the business
hours of the Corporation. In the event of any conflict between the provisions of
this Agreement and the provisions of the Plan, then the provisions of the Plan
shall be controlling.
14. Restrictions on Tranferability. (a) If the shares of stock
covered by the Plan have been registered with the Securities and Exchange
Commission pursuant to Section 5 of the Securities Act of 1933 and qualified or
registered under any applicable blue sky laws, the restrictions on
transferability of such shares set forth in Section 14(b) shall not apply.
(b) Unless the shares of stock covered by the Plan have been registered
with the Securities and Exchange Commission pursuant to Section 5 of the
Securities Act of 1933 and qualified or registered under any applicable blue sky
laws, Optionee by accepting the Option represents and agrees, for himself or
herself and his or her transferees, that all stock will be acquired for
investment and not for resale or distribution. Upon exercise of any portion of
the Option, the person entitled to exercise the same shall, upon request of the
Corporation, furnish evidence satisfactory to the Corporation (including a
written and signed representation) to the effect that the stock is being
acquired in good faith for investment and not for resale or distribution.
Furthermore, the Corporation, at its sole discretion, may take all reasonable
steps, including affixing a legend, which may be in substantially the following
form, on certificates embodying the shares:
The shares represented by this certificate have not been registered
under the Securities Act of 1933 [or qualified under the California
Corporate Securities Law of 1968] and may not be sold, pledged,
hypothecated or otherwise transferred or offered for sale in the
absence of an effective registration statement with respect to them
under the Act and qualification under applicable blue sky law, or a
written opinion of counsel for the optionee which opinion shall be
acceptable to counsel for the issuer that registration and
qualification are not required.
to assure itself against any sale or distribution by Optionee which does not
comply with the Plan or any federal or state securities laws. In the event that
Optionee at any time contemplates the disposition of any of the stock acquired
upon the exercise of the Option (whether by sale, exchange, gift or other form
of transfer), he or she shall first notify the Corporation of such proposed
disposition and shall thereafter cooperate with the Corporation in complying
with all applicable requirements of law which, in the opinion of the
Corporation, must be satisfied prior to the making of such disposition. Before
consummating such disposition, Optionee shall provide to the Corporation an
opinion of Optionee's counsel, of which both such opinion and such counsel shall
be satisfactory to the Corporation, that such disposition will not result in a
violation of any state or federal securities laws or regulations.
15. Notices. Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by registered or certified mail to
, in the case of Optionee, and to its principal office in the case of the
Corporation, or such other address as one may communicate to the other in
writing.
16. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any such party.
17. Assignment. The rights and obligations
of the Corporation and Optionee under this Agreement shall inure to the benefit
of and shall be binding upon their successors and assigns, except that the right
to exercise the Option herein provided for shall not be assignable except to the
extent set forth in Paragraph
6 hereof.
18. Incentive Stock Option Tax Treatment. It is understood by
Optionee that in granting the Option and by executing this Agreement, the
Corporation desires and intends to qualify the Option as an "incentive stock
option," as defined in Section 422 of the Internal Revenue Code of 1986, as
amended. However, Optionee further understands that, by taking such steps, the
Corporation does not guarantee that the favorable tax treatment available to
incentive stock options will in fact be obtained by Optionee.
19. Entire Agreement. This instrument contains the entire
Agreement of the parties. It may not be changed orally, but only by agreement in
writing signed by the parties against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
of , 19 .
BAY AREA BANCSHARES,
a California corporation
By
Its
Optionee
[For incentive options
granted to employees who
are also directors]
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT ("Agreement") is made as
of the day of , 19 , by and between BAY AREA BANCSHARES, a
California corporation ("Corporation"), and
("Optionee").
RECITAL
The Board of Directors of the Corporation (the "Board")
pursuant to the Bay Area Bancshares 1993 Stock Option Plan ("Plan"), has
determined that it desires to grant to Optionee, pursuant to the Plan and as an
incentive for increased efforts during his or her service in the employ of , an
"incentive stock option," as defined in Section 422 of the Internal Revenue Code
of 1986, as amended, to purchase shares of the common stock of the Corporation
on the terms and conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
1. Stock Subject to Option. The Corporation hereby grants to
Optionee, under and pursuant to the Plan, the right and option ("Option") to
purchase, on the terms and conditions hereinafter set forth, an aggregate of
shares of the Corporation's common stock, no par value. The Option is hereby
designated as an "incentive stock option," as defined in Section 422 of the
Internal Revenue Code of 1986, as amended.
2. Exercise of Option. The Option may be exercised at any
time, in whole or in part, during the term of the Option, as provided for in
Section 4 herein. OR The Option may be exercised upon such terms and conditions
as the Board shall determine; provided, however, that the Option shall vest and
be exercisable in installments as follows: [state installment schedule, if any]
. [If there is an installment schedule, add sections 7(d) and 8(c).] CONTINUE IN
EITHER CASE In no event, however, shall the Corporation be required to issue
fractional shares.
3. Option Price. The purchase price for shares upon exercise
of the Option shall be $ per share, which is 100% of the per share fair market
value [110% of the per share fair market value, in the
case of a 10% shareholder,] of the shares of the Corporation's common stock as
of the date of grant of the Option, said value having been established by the
Board pursuant to the Plan. Optionee is in agreement that $ is the fair market
value of the shares of the Corporation's common stock as of the date of the
grant of the Option.
4. Term of Option. The term of this Agreement and Option shall
commence on the date hereof, and expire ten (10) years from the date hereof,
that is, at 5:00 p.m. Pacific Time, on ,
, or at such earlier time as provided herein.
5. Manner of Exercise. To the extent that the right to
purchase shares has vested hereunder, the Option may be exercised from time to
time by written notice to the Corporation stating the number of shares with
respect to which the Option is being exercised, and the time of the delivery
thereof, which shall not be less than fifteen (15) days and not more than thirty
(30) days after the giving of such notice, unless an earlier date shall have
been mutually agreed upon. Shares of common stock purchased pursuant to the
exercise of the Option shall, at the time of the notice specifying the date of
delivery, be paid for in full, with cash or common stock that is owned by
Optionee, or by delivery of the Optionees's Note in the form of Exhibit A and
Stock Pledge Agreement in the form of Exhibit B to this Agreement. To the extent
payment is being made with cash, Optionee shall deliver a certified or official
bank check or the equivalent thereof acceptable to the Corporation. If shares of
common stock are tendered as payment, such shares shall be valued at their fair
market value, as determined by the Corporation, on the date of the notice given
to the Corporation by Optionee with respect to such exercise. At the time
specified in the notice for delivery of the certificate, the Corporation shall,
without transfer or issue tax to Optionee (or other person entitled to exercise
the Option), deliver to Optionee (or other person entitled to exercise the
Option) at the principal office of the Corporation, or such other place as shall
be mutually acceptable, a certificate or certificates for such shares; provided,
however, that the time of such delivery may be postponed by the Corporation for
such period as may be required for it with reasonable diligence to comply with
any requirements of law. If Optionee (or other person entitled to exercise the
Option) fails to pay for all or any part of the number of shares specified in
such notice or fails to accept delivery of such shares upon tender of delivery
thereof, the right to exercise the Option with respect to such undelivered
shares may be terminated. The Board may require that a partial exercise of the
Option be for no less than a stated minimum of shares.
6. Non-Assignability of Option Rights. During Optionee's
lifetime, the Option may be exercised only by Optionee, and the Option is
non-assignable, except by will or comparable testamentary instrument, or by the
laws of descent and distribution. In the event of any attachment, execution, or
similar process upon the Option, the Corporation shall, as soon as practicable,
notify Optionee of such process and, if Optionee does not within a reasonable
time (but not to exceed sixty (60) days) obtain an appropriate release of the
Option from such process, the Corporation may exercise its right to terminate
the Option by notice to Optionee. The Option shall thereupon become null and
void.
7. Termination of Employment or Service as a Director. (a) In
the event that Optionee is no longer an employee and no longer a director of the
Corporation or one of its subsidiaries for any reason, the Option shall
terminate immediately; provided, however, that Optionee shall have the right,
subject to the provisions of Section 4 hereof with respect to the maximum term
of the Option, to exercise the Option, at any time within three (3) months from
the day he or she ceases to be an employee and/or director to the extent that he
or she was entitled to exercise the same immediately prior to such day, except
as provided below. Whether an authorized leave of absence on military or
government service or for other reasons shall constitute a termination of
employment or service as a director for purposes of this Agreement shall be
determined by the Board, and such determination of the Board shall be final and
conclusive.
(b) If Optionee shall retire, die or become disabled, the
three (3) month period specified in Subsection 7(a) shall be five (5) years. If
Optionee shall die within five (5) years from the date when he or she ceases to
be a director, his or her estate, personal representative, or beneficiary shall
have the right, subject to the provisions of Section 4 hereof, to exercise the
Option until the expiration of such five (5) year period, to the extent that he
or she was entitled to exercise the same immediately prior to death.
[for options granted with installment schedules: (c)
Notwithstanding the foregoing, if the employment of the Optionee and the service
of the Optionee as a director is "Terminated or Modified", as defined below, as
a result of an within 24 months of a Change of Control, as defined below, and if
this Option is not fully vested at the time of such Termination or Modification,
the remaining installments may vest immediately upon such Termination or
Modification. For purposes of this paragraph, "Terminated or Modified" is
defined as a change in the Optionee's service terms that results in a reduction
of economic benefits to the Optionee from the Corporation, including but not
limited to a reduction in compensation, and "Change of Control" is defined as a
merger, acquisition or change of control that requires notice to or approval of
State or Federal banking regulators.]
8. Adjustments or Changes in Stock; Change in Control. (a) In
the event that the outstanding shares of common stock of the Corporation are
hereafter increased or decreased or changed into or exchanged for a different
number or kind of shares or other securities of the Corporation or of another
corporation, by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split, combination of shares, dividend
payable in common stock, or acquisition, or any similar transaction, in which
the Corporation receives no additional consideration other than shares or other
securities, appropriate adjustment shall be made by the Board under the Plan in
the number and kind of shares as to which the Option or portion thereof then
unexercised shall be exercisable, so that Optionee's proportionate interest in
the Corporation by reason of rights under unexercised portions of the Option
shall be maintained as before the occurrence of such event. Such adjustment in
the Option shall be made without change in the total price applicable to the
unexercised portion of the Option and with a corresponding adjustment, if
necessary, in the option price per share.
(b) In the event of a dissolution or liquidation of the
Corporation, a merger, consolidation, acquisition, or other reorganization
involving the Corporation or a principal subsidiary, in which the Corporation or
such principal subsidiary is not the surviving or resulting corporation, or a
sale by the Corporation or by a principal subsidiary of all or substantially all
of its assets, the Board shall cause the termination of the Option as of the
effective date of such transaction, provided, however, that advance notice of
the expected effective date of such transaction shall be given to Optionee, to
the extent practicable, and Optionee shall have the right to exercise the Option
until the date of such termination as to all or any part of the shares as to
which the Option is at that time exercisable.
[for options granted with installment schedules: (c) In the
event this Option is terminated under paragraph (b) immediately above, any
portion of this Option that is not vested as of the date of the advance notice
to Optionee of the expected effective date of the transaction shall become
vested and the Option shall be exercisable in full from the date of such notice
until the date the Option terminates.]
9. Rights as a Shareholder. Optionee shall have no rights as a
shareholder with respect to any shares of common stock of the Corporation until
the date of issuance of a stock certificate to Optionee for such shares. No
adjustment shall be made for dividends or other rights for which the record date
is prior to the date of such issuance, except as otherwise provided in Paragraph
8 herein.
10. Notification of Sale. Optionee shall promptly notify the
Corporation in writing of any sale, transfer or other disposition of any shares
acquired by Optionee as a result of exercising all or any part of the Option
granted hereunder, which are sold, transferred or otherwise disposed of within
two (2) years from the date of grant of the Option and/or within one (1) year
from the date of the acquisition of shares by Optionee through exercise of the
Option.
11. Withholding Taxes. Whenever the Corporation proposes or is
required to issue or transfer shares of common stock under this Agreement, the
Corporation shall have the right to require Optionee to remit to the Corporation
an amount sufficient to satisfy any Federal, state and/or local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares. Alternatively, the Corporation may issue or transfer such shares of
common stock net of the number of shares sufficient to satisfy the withholding
tax requirements. For withholding tax purposes, the shares of common stock shall
be valued on the date the withholding obligation is incurred.
12. No Obligation to Exercise. The granting of the Option
hereunder shall impose no obligation upon Optionee to exercise the Option as to
the shares or any portion thereof covered thereby.
13. Incorporation of Bay Area Bancshares 1993 Stock Option
Plan. The Option is granted by the Corporation pursuant to the Plan, adopted by
the Board and approved by the shareholders of the Corporation. The parties
hereby agree that the terms and conditions of the Plan, as now in effect, shall,
by this reference, be incorporated in this Incentive Stock Option Agreement as
though set forth in full. Optionee acknowledges receipt of a copy of the Plan. A
copy of the Plan shall also be maintained at the principal office of the
Corporation and made available to Optionee for inspection during the business
hours of the Corporation. In the event of any conflict between the provisions of
this Agreement and the provisions of the Plan, then the provisions of the Plan
shall be controlling.
14. Restrictions on Tranferability. (a) If the shares of stock
covered by the Plan have been registered with the Securities and Exchange
Commission pursuant to Section 5 of the Securities Act of 1933 and qualified or
registered under any applicable blue sky laws, the restrictions on
transferability of such shares set forth in Section 14(b) shall not apply.
(b) Unless the shares of stock covered by the Plan have been registered
with the Securities and Exchange Commission pursuant to Section 5 of the
Securities Act of 1933 and qualified or registered under any applicable blue sky
laws, Optionee by accepting the Option represents and agrees, for himself or
herself and his or her transferees, that all stock will be acquired for
investment and not for resale or distribution. Upon exercise of any portion of
the Option, the person entitled to exercise the same shall, upon request of the
Corporation, furnish evidence satisfactory to the Corporation (including a
written and signed representation) to the effect that the stock is being
acquired in good faith for investment and not for resale or distribution.
Furthermore, the Corporation, at its sole discretion, may take all reasonable
steps, including affixing a legend, which may be in substantially the following
form, on certificates embodying the shares:
The shares represented by this certificate have not been registered
under the Securities Act of 1933 [or qualified under the California
Corporate Securities Law of 1968] and may not be sold, pledged,
hypothecated or otherwise transferred or offered for sale in the
absence of an effective registration statement with respect to them
under the Act and qualification under applicable blue sky law, or a
written opinion of counsel for the optionee which opinion shall be
acceptable to counsel for the issuer that registration and
qualification are not required.
to assure itself against any sale or distribution by Optionee which does not
comply with the Plan or any federal or state securities laws. In the event that
Optionee at any time contemplates the disposition of any of the stock acquired
upon the exercise of the Option (whether by sale, exchange, gift or other form
of transfer), he or she shall first notify the Corporation of such proposed
disposition and shall thereafter cooperate with the Corporation in complying
with all applicable requirements of law which, in the opinion of the
Corporation, must be satisfied prior to the making of such disposition. Before
consummating such disposition, Optionee shall provide to the Corporation an
opinion of Optionee's counsel, of which both such opinion and such counsel shall
be satisfactory to the Corporation, that such disposition will not result in a
violation of any state or federal securities laws or regulations.
15. Notices. Any notices required or permitted to be given
under this Agreement shall be sufficient if in writing and if sent by registered
or certified mail to , in the case of Optionee, and to its principal office in
the case of the Corporation, or such other address as one may communicate to the
other in writing.
16. Waiver of Breach. The waiver by either party of the
breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach by any such party.
17. Assignment. The rights and obligations of the
Corporation and Optionee under this Agreement shall inure to the benefit of
and shall be binding upon their successors and assigns, except that the
right to exercise the Option herein provided for shall not be assignable
except to the extent set forth in Paragraph
6 hereof.
18. Incentive Stock Option Tax Treatment. It is understood by
Optionee that in granting the Option and by executing this Agreement, the
Corporation desires and intends to qualify the Option as an "incentive stock
option," as defined in Section 422 of the Internal Revenue Code of 1986, as
amended. However, Optionee further understands that, by taking such steps, the
Corporation does not guarantee that the favorable tax treatment available to
incentive stock options will in fact be obtained by Optionee.
19. Entire Agreement. This instrument contains the entire
Agreement of the parties. It may not be changed orally, but only by agreement in
writing signed by the parties against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day of , 19 .
BAY AREA BANCSHARES,
a California corporation
By
Its
Optionee
[For options which are granted as
non-incentive stock options
to nonemployee-directors or consultants]
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement") is made as of the
day of ,19 , by and between BAY AREA BANCSHARES, a California
corporation ("Corporation"), and ("Optionee").
RECITAL
The Board of Directors (the "Board") of the Corporation,
pursuant to the Bay Area Bancshares 1993 Stock Option Plan ("Plan"), has
determined that it desires to grant to Optionee, pursuant to the Plan and as an
incentive for increased efforts during his or her service [as a director/ as a
consultant] of , an option to purchase shares of the common stock of the
Corporation on the terms and conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
1. Stock Subject to Option. The Corporation hereby grants to
Optionee, under and pursuant to the Plan, the right and option ("Option") to
purchase, on the terms and conditions hereinafter set forth, an aggregate of
shares of the Corporation's common stock, no par value. The Option is granted as
a "non-incentive stock option".
2. Exercise of Option. The Option may be exercised at any
time, in whole or in part, during the term of the Option, as provided for in
Section 4 herein. OR The Option may be exercised upon such terms and conditions
as the Board shall determine; provided, however, that the Option shall vest and
be exercisable in installments as follows: [state installment schedule, if any]
. [If there is an installment schedule, add sections 7(d) and 8(c).] CONTINUE IN
EITHER CASE: In no event, however, shall the Corporation be required to issue
fractional shares.
3. Option Price. The purchase price for shares upon exercise
of the Option shall be $ per share, which is [85%-100%] of the per share fair
market value [110% of the per share fair market value, in
the case of a 10% shareholder,] of the shares of the Corporation's common stock
as of the date of grant of the Option, said value having been established by the
Board pursuant to the Plan. Optionee is in agreement that $ is the fair market
value of the shares of the Corporation's common stock as of the date of the
grant of the Option.
4. Term of Option. The term of this Agreement and Option shall
commence on the date hereof, and expire ten (10) years from the date hereof,
that is, at 5:00 p.m. Pacific Time on , , or at such earlier time as provided
herein.
5. Manner of Exercise. To the extent that the right to
purchase shares has accrued hereunder, the Option may be exercised from time to
time by written notice to the Corporation stating the number of shares with
respect to which the Option is being exercised, and the time of the delivery
thereof, which shall not be less than fifteen (15) days and not more than thirty
(30) days after the giving of such notice, unless an earlier date shall have
been mutually agreed upon. Shares of common stock purchased pursuant to the
exercise of the Option shall, at the time of the notice specifying the date of
delivery, be paid for in full, with cash or common stock that is owned by
Optionee, or by delivery of the Optionees's Note in the form of Exhibit A and
Stock Pledge Agreement in the form of Exhibit B to this Agreement. To the extent
payment is being made with cash, Optionee shall deliver a certified or official
bank check or the equivalent thereof acceptable to the Corporation. If shares of
common stock are tendered as payment, such shares shall be valued at their fair
market value, as determined by the Corporation, on the date of the notice given
to the Corporation by Optionee with respect to such exercise. At the time
specified in the notice for delivery of the certificate, the Corporation shall,
without transfer or issue tax to Optionee (or other person entitled to exercise
the Option), deliver to Optionee (or other person entitled to exercise the
Option) at the principal office of the Corporation, or such other place as shall
be mutually acceptable, a certificate or certificates for such shares; provided,
however, that the time of such delivery may be postponed by the Corporation for
such period as may be required for it with reasonable diligence to comply with
any requirements of law. If Optionee (or other person entitled to exercise the
Option) fails to pay for all or any part of the number of shares specified in
such notice or fails to accept delivery of such shares upon tender of delivery
thereof, the right to exercise the Option with respect to such undelivered
shares may be terminated.
6. Non-Assignability of Option Rights. During Optionee's
lifetime, the Option may be exercised only by Optionee, and the Option is
non-assignable, except by will or comparable testamentary instrument, or by the
laws of descent and distribution. In the event of any attachment, execution, or
similar process upon the Option, the Corporation shall, as soon as practicable,
notify Optionee of such process and, if Optionee does not within a reasonable
time (but not to exceed sixty (60) days) obtain an appropriate release of the
Option from such process, the Corporation may exercise its right to terminate
the Option by notice to Optionee. The Option shall thereupon become null and
void.
7. Termination Service as a Director or Consultant. (a) In the
event that Optionee is [no longer a consultant/ and no longer a director] of the
Corporation or one of its subsidiaries for any reason, the Option shall
terminate immediately; provided, however, that Optionee shall have the right,
subject to the provisions of Section 4 hereof with respect to the maximum term
of the Option, to exercise the Option, at any time within three (3) months from
the day he or she ceases to be a [director and/or consultant] to the extent that
he or she was entitled to exercise the same immediately prior to such day,
except as provided below. Whether an authorized leave of absence on military or
government service or for other reasons shall constitute a termination of
service as a director or consultant for purposes of this Agreement shall be
determined by the Board, and such determination of the Board shall be final and
conclusive.
[for director optionees: (b) If Optionee shall retire, die or become disabled,
the three (3) month period specified in Subsection 7(a)(1) shall be five (5)
years. If Optionee shall die within five (5) years from the date when he or she
ceases to be a director, his or her estate, personal representative, or
beneficiary shall have the right, subject to the provisions of Section 4 hereof,
to exercise the Option until the expiration of such five (5) year period, to the
extent that he or she was entitled to exercise the same immediately prior to
death.]
[for consultant (not also director) optionees: (b) If Optionee shall become
disabled, the three (3) month period specified in Subsection 7(a) shall be six
(6) months.
(c) If Optionee shall die while a consultant or within not
more than three (3) months from the date when he or she ceases to be a
consultant, his or her estate, personal representative, or beneficiary shall
have the right, subject to the provisions of Section (4) hereof, to exercise the
Option, at any time within six (6) months from the date of death, to the extent
that he or she was entitled to exercise the Option immediately prior to death.]
[for options granted with installment schedules: (c) Notwithstanding the
foregoing, if the service of Optionee as a [director/consultant] is "Terminated
or Modified", as defined below, as a result of and within 24 months of a Change
of Control, as defined below, and if this Option is not fully vested at the time
of such Termination or Modification, the remaining installments may vest
immediately upon such Termination or Modification. For purposes of this
paragraph, "Terminated or Modified" is defined as a change in the Optionee's
service terms that results in a reduction of economic benefits to the optionee
from the Corporation, including but not limited to a reduction in compensation,
and "Change of Control"
<PAGE>
is defined as a merger, acquisition or change of control that requires notice to
or approval of State or Federal banking regulators.]
8. Adjustments or Changes in Stock; Change in Control. (a) In
the event that the outstanding shares of common stock of the Corporation are
hereafter increased or decreased or changed into or exchanged for a different
number or kind of shares or other securities of the Corporation or of another
corporation, by reason of reorganization, merger, consolidation,
recapitalization, reclassification, stock split, combination of shares, dividend
payable in common stock, or acquisition, or any similar transaction, in which
the Corporation receives no additional consideration other than shares or other
securities, appropriate adjustment shall be made by the Board under the Plan in
the number and kind of shares as to which the Option or portion thereof then
unexercised shall be exercisable, so that Optionee's proportionate interest in
the Corporation by reason of rights under unexercised portions of the Option
shall be maintained as before the occurrence of such event. Such adjustment in
the Option shall be made without change in the total price applicable to the
unexercised portion of the Option and with a corresponding adjustment, if
necessary, in the option price per share.
(b) In the event of a dissolution or liquidation of the Corporation, a
merger, consolidation, acquisition, or other reorganization involving the
Corporation or a principal subsidiary, in which the Corporation or such
principal subsidiary is not the surviving or resulting corporation, or a sale by
the Corporation or by a principal subsidiary of all or substantially all of its
assets, the Board shall cause the termination of the Option as of the effective
date of such transaction, provided, however, that advance notice of the expected
effective date of such transaction shall be given to Optionee, to the extent
practicable, and Optionee shall have the right to exercise the Option until the
date of such termination as to all or any part of the shares as to which the
Option is at that time exercisable.
[for options granted with installment schedules: (c) In the
event this Option is terminated under paragraph (b) immediately above, any
portion of this Option that is not vested as of the date of the advance notice
to Optionee of the expected effective date of the transaction shall become
vested and the Option shall be exercisable in full from the date of such notice
until the date the Option terminates.]
9. Rights as a Shareholder. Optionee shall have no rights as a
shareholder with respect to any shares of common stock of the Corporation until
the date of issuance of a stock certificate to Optionee for such shares. No
adjustment shall be made for dividends or other rights for which the record date
is prior to the date of such issuance, except as otherwise provided in Paragraph
8 herein.
10. Notification of Sale. Optionee shall promptly notify the
Corporation in writing of any sale, transfer or other disposition of any shares
acquired by Optionee as a result of exercising all or any part of the Option
granted hereunder, which are sold, transferred or otherwise disposed of within
two (2) years from the date of grant of the Option and/or within one (1) year
from the date of the acquisition of shares by Optionee through exercise of the
Option.
11. Withholding Taxes. Whenever the Corporation proposes or is
required to issue or transfer shares of common stock under this Agreement, the
Corporation shall have the right to require Optionee to remit to the Corporation
an amount sufficient to satisfy any Federal, state and/or local withholding tax
requirements prior to the delivery of any certificate or certificates for such
shares. Alternatively, the Corporation may issue or transfer such shares of
common stock net of the number of shares sufficient to satisfy the withholding
tax requirements. For withholding tax purposes, the shares of common stock shall
be valued on the date the withholding obligation is incurred.
12. No Obligation to Exercise. The granting of the Option
hereunder shall impose no obligation upon Optionee to exercise the Option as to
the shares or any portion thereof covered thereby.
13. Incorporation of Bay Area Bancshares 1993 Stock Option
Plan. The Option is granted by the Corporation pursuant to the Plan, adopted by
the Board and approved by the shareholders of the Corporation. The parties
hereby agree that the terms and conditions of the Plan, as now in effect, shall,
by this reference, be incorporated in this Stock Option Agreement as though set
forth in full. Optionee acknowledges receipt of a copy of the Plan. A copy of
the Plan shall also be maintained at the principal office of the Corporation and
made available to Optionee for inspection during the business hours of the
Corporation. In the event of any conflict between the provisions of this
Agreement and the provisions of the Plan, then the provisions of the Plan shall
be controlling.
14. Restrictions on Transferability. (a) If the shares of
stock covered by the Plan have been registered with the Securities and Exchange
Commission pursuant to Section 5 of the Securities Act of 1933 and qualified or
registered under any applicable blue sky laws, the restrictions on
transferability of such shares set forth in Section 14(b) shall not apply.
(b) Unless the shares of stock covered by the Plan have been
registered with the Securities and Exchange Commission pursuant to Section 5 of
the Securities Act of 1933 and qualified or registered under any applicable blue
sky laws, Optionee by accepting the Option represents and agrees, for himself or
herself and his or her transferees, that all stock will be acquired for
investment and not for resale or distribution. Upon exercise of any portion of
the Option, the person entitled to exercise the same shall, upon request of the
Corporation, furnish evidence satisfactory to the Corporation (including a
written and signed representation) to the effect that the stock is being
acquired in good faith for investment and not for resale or distribution.
Furthermore, the Corporation, at its sole discretion, may take all reasonable
steps, including affixing a legend, which may be in substantially the following
form, on certificates embodying the shares:
The shares represented by this certificate have not been registered
under the Securities Act of 1933 [or qualified under the California
Corporate Securities Law of 1968] and may not be sold, pledged,
hypothecated or otherwise transferred or offered for sale in the
absence of an effective registration statement with respect to them
under the Act and qualification under applicable blue sky law, or a
written opinion of counsel for the optionee which opinion shall be
acceptable to counsel for the issuer that registration and
qualification are not required.
to assure itself against any sale or distribution by Optionee which does not
comply with the Plan or any federal or state securities laws. In the event that
Optionee at any time contemplates the disposition of any of the stock acquired
upon the exercise of the Option (whether by sale, exchange, gift or other form
of transfer), he or she shall first notify the Corporation of such proposed
disposition and shall thereafter cooperate with the Corporation in complying
with all applicable requirements of law which, in the opinion of the
Corporation, must be satisfied prior to the making of such disposition. Before
consummating such disposition, Optionee shall provide to the Corporation an
opinion of Optionee's counsel, of which both such opinion and such counsel shall
be satisfactory to the Corporation, that such disposition will not result in a
violation of any state or federal securities laws or regulations.
15. Notices. Any notices required or permitted to be given
under this Agreement shall be sufficient if in writing and if sent by registered
or certified mail to , in the case of Optionee, and to its principal office in
the case of the Corporation, or such other address as one may communicate to the
other in writing.
16. Waiver of Breach. The waiver by either party of the breach
of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach by any such party.
17. Assignment. The rights and obligations of the Corporation
and Optionee under this Agreement shall inure to the benefit of and shall
be binding upon their
successors and assigns, except that the right to exercise the Option herein
provided shall not be assignable except to the extent set forth in Paragraph 6
hereof.
18. Entire Agreement. This instrument contains the entire
agreement of the parties. It may not be changed orally, but only by agreement in
writing signed by the parties against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day of , 19 .
BAY AREA BANCSHARES,
a California corporation
By
Its
Optionee
Exhibit 99
ss. 204. Articles of incorporation; optional provisions
The articles of incorporation may set forth:
(a) Any or all of the following provisions, which shall not be effective unless
expressly provided in the articles:
(1) Granting, with or without limitations,
the power to levy assessments upon the shares or any class of shares.
(2)Granting to shareholders preemptive rights to subscribe to any or all issues
of shares or securities.
(3) Special qualifications of persons who may be shareholders.
(4) A provision limiting the duration of the corporation's existence to a
specified date.
(5) A provision requiring, for any or all corporate actions (except as provided
in Section 303, subdivision (b) of Section 402.5, subdivision (c) of Section 708
and Section 1900) the vote of a larger proportion or of all of the shares of any
class or series, or the vote or quorum for taking action of a larger proportion
or of all of the directors, than is otherwise required by this division.
(6) A provision limiting or restricting the business in which the
corporation may engage or the powers which the corporation may exercise or both.
(7) A provision conferring upon the holders of any evidences of indebtedness,
issued or to be issued by the corporation, the right to vote in the election of
directors and on any other matters on which shareholders may vote.
(8) A provision conferring
upon shareholders the right to determine the consideration for which shares
shall be issued.
(9) A provision requiring the approval of the shareholders
(Section 153) or the approval of the outstanding shares (Section 152) for any
corporate action, even though not otherwise required by this division.
(10)Provisions eliminating or limiting the personal liability of a director for
monetary damages in an action brought by or in the right of the corporation for
breach of a director's duties to the corporation and its shareholders, as set
forth in Section 309, provided, however, that (A) such a provision may not
eliminate or limit the liability of directors (i) for acts or omissions that
involve intentional misconduct or a knowing and culpable violation of law, (ii)
for acts or omissions that a director believes to be contrary to the best
interests of the corporation or its shareholders or that involve the absence of
good faith on the part of the director, (iii) for any transaction from which a
director derived an improper personal benefit, (iv) for acts or omissions that
show a reckless disregard for the director's duty to the corporation or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of serious injury to the corporation or its shareholders, (v) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the corporation or its shareholders, (vi)
under Section 310, or (vii) under Section 316, (B) no such provision shall
eliminate or limit the liability of a director for any act or omission occurring
prior to the date when the provision becomes effective, and (C) no such
provision shall eliminate or limit the liability of an officer for any act or
omission as an officer, notwithstanding that the officer is also a director or
that his or her actions, if negligent or improper, have been ratified by the
directors.
(11) A provision authorizing, whether by bylaw, agreement, or
otherwise, the indemnification of agents (as defined in Section 317) in excess
of that expressly permitted by Section 317 for those agents of the corporation
for breach of duty to the corporation and its stockholders, provided, however,
that the provision may not provide for indemnification of any agent for any acts
or omissions or transactions from which a director may not be relieved of
liability as set forth in the exception to paragraph (10) or as to circumstances
in which indemnity is expressly prohibited by Section 317. Notwithstanding this
subdivision, in the case of a close corporation any of the provisions referred
to above may be validly included in a shareholders' agreement. Notwithstanding
this subdivision, bylaws may require for all or any actions by the board the
affirmative vote of a majority of the authorized number of directors. Nothing
contained in this subdivision shall affect the enforceability, as between the
parties thereto, of any lawful agreement not otherwise contrary to public
policy.
(b) Reasonable restrictions upon the right to transfer or hypothecate
shares of any class or classes or series, but no restriction shall be binding
with respect to shares issued prior to the adoption of the restriction unless
the holders of such shares voted in favor of the restriction.
(c) The names and addresses of the persons appointed to act as initial
directors.
(d) Any other provision, not in conflict with law, for the management of the
business and for the conduct of the affairs of the corporation, including any
provision which is required or permitted by this division to be stated in the
bylaws. (Added by Stats.1975, c. 682, ss. 7, eff. Jan. 1, 1977. Amended by
Stats.1976, c. 641, ss. 6.2, eff. Jan. 1, 1977; Stats.1977, c. 235, p. 1043, ss.
1.5; Stats.1983, c. 1223, ss. 2; Stats.1987, c. 1201, ss. 5; Stats.1987, c.
1203, ss. 1, eff. Sept. 27, 1987.)
<PAGE>
ss. 317. Indemnification of agent of corporation in proceedings or actions
(a) For the purposes of this section, "agent" means any person who is or was a
director, officer, employee or other agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of the predecessor
corporation; "proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative; and
"expenses" includes without limitation attorneys' fees and any expenses of
establishing a right to indemnification under subdivision (d) or paragraph (4)
of subdivision (e).
(b) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to procure a
judgment in its favor) by reason of the fact that the person is or was an agent
of the corporation, against expenses, judgments, fines, settlements, and other
amounts actually and reasonably incurred in connection with the proceeding if
that person acted in good faith and in a manner the person reasonably believed
to be in the best interests of the corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of the person was
unlawful. The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best interests of the
corporation or that the person had reasonable cause to believe that the person's
conduct was unlawful.
(c) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending, or completed action by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was an agent
of the corporation, against expenses actually and reasonably incurred by that
person in connection with the defense or settlement of the action if the person
acted in good faith, in a manner the person believed to be in the best interests
of the corporation and its shareholders. No indemnification shall be made under
this subdivision for any of the following: (1) In respect of any claim, issue or
matter as to which the person shall have been adjudged to be liable to the
corporation in the performance of that person's duty to the corporation and its
shareholders, unless and only to the extent that the court in which the
proceeding is or was pending shall determine upon application that, in view of
all the circumstances of the case, the person is fairly and reasonably entitled
to indemnity for expenses and then only to the extent that the court shall
determine. (2) Of amounts paid in settling or otherwise disposing of a pending
action without court approval. (3) Of expenses incurred in defending a pending
action which is settled or otherwise disposed of without court approval.
(d) To the extent that an agent of a corporation has been successful on the
merits in defense of any proceeding referred to in subdivision (b) or (c) or in
defense of any claim, issue, or matter therein, the agent shall be indemnified
against expenses actually and reasonably incurred by the agent in connection
therewith.
(e) Except as provided in subdivision (d), any indemnification under this
section shall be made by the corporation only if authorized in the specific
case, upon a determination that indemnification of the agent is proper in the
circumstances because the agent has met the applicable standard of conduct set
forth in subdivision (b) or (c), by any of the following: (1) A majority vote of
a quorum consisting of directors who are not parties to such proceeding. (2) If
such a quorum of directors is not obtainable, by independent legal counsel in a
written opinion. (3) Approval of the shareholders (Section 153), with the shares
owned by the person to be indemnified not being entitled to vote thereon. (4)
The court in which the proceeding is or was pending upon application made by the
corporation or the agent or the attorney or other person rendering services in
connection with the defense, whether or not the application by the agent,
attorney or other person is opposed by the corporation.
(f) Expenses incurred in defending any proceeding may be advanced by the
corporation prior to the final disposition of the proceeding upon receipt of an
undertaking by or on behalf of the agent to repay that amount if it shall be
determined ultimately that the agent is not entitled to be indemnified as
authorized in this section. The provisions of subdivision (a) of Section 315 do
not apply to advances made pursuant to this subdivision.
(g) The indemnification authorized by this section
shall not be deemed exclusive of any additional rights to indemnification for
breach of duty to the corporation and its shareholders while acting in the
capacity of a director or officer of the corporation to the extent the
additional rights to indemnification are authorized in an article provision
adopted pursuant to paragraph (11) of subdivision (a) of Section 204. The
indemnification provided by this section for acts, omissions, or transactions
while acting in the capacity of, or while serving as, a director or officer of
the corporation but not involving breach of duty to the corporation and its
shareholders shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise, to the extent the
additional rights to indemnification are authorized in the articles of the
corporation. An article provision authorizing indemnification "in excess of that
otherwise permitted by Section 317" or "to the fullest extent permissible under
California law" or the substantial equivalent thereof shall be construed to be
both a provision for additional indemnification for breach of duty to the
corporation and its shareholders as referred to in, and with the limitations
required by, paragraph (11) of subdivision (a) of Section 204 and a provision
for additional indemnification as referred to in the second sentence of this
subdivision. The rights to indemnity hereunder shall continue as to a person who
has ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of the person. Nothing
contained in this section shall affect any right to indemnification to which
persons other than the directors and officers may be entitled by contract or
otherwise.
(h) No indemnification or advance shall be made under this section,
except as provided in subdivision (d) or paragraph (4) of subdivision (e), in
any circumstance where it appears: (1) That it would be inconsistent with a
provision of the articles, bylaws, a resolution of the shareholders, or an
agreement in effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or other amounts
were paid, which prohibits or otherwise limits indemnification. (2) That it
would be inconsistent with any condition expressly imposed by a court in
approving a settlement.
(i) A corporation shall have power to purchase and
maintain insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in that capacity or arising
out of the agent's status as such whether or not the corporation would have the
power to indemnify the agent against that liability under this section. The fact
that a corporation owns all or a portion of the shares of the company issuing a
policy of insurance shall not render this subdivision inapplicable if either of
the following conditions are satisfied: (1) if the articles authorize
indemnification in excess of that authorized in this section and the insurance
provided by this subdivision is limited as indemnification is required to be
limited by paragraph (11) of subdivision (a) of Section 204; or (2)(A) the
company issuing the insurance policy is organized, licensed, and operated in a
manner that complies with the insurance laws and regulations applicable to its
jurisdiction of organization, (B) the company issuing the policy provides
procedures for processing claims that do not permit that company to be subject
to the direct control of the corporation that purchased that policy, and (C) the
policy issued provides for some manner of risk sharing between the issuer and
purchaser of the policy, on one hand, and some unaffiliated person or persons,
on the other, such as by providing for more than one unaffiliated owner of the
company issuing the policy or by providing that a portion of the coverage
furnished will be obtained from some unaffiliated insurer or reinsurer.
(j) This section does not apply to any proceeding against any trustee,
investment manager, or other fiduciary of an employee benefit plan in that
person's capacity as such, even though the person may also be an agent as
defined in subdivision (a) of the employer corporation. A corporation shall have
power to indemnify such a trustee, investment manager, or other fiduciary to the
extent permitted by subdivision (f) of Section 207. (Added by Stats.1975, c.
682, ss. 7, eff. Jan. 1, 1977. Amended by Stats.1976, c. 641, ss. 11, eff. Jan.
1, 1977; Stats.1977, c. 235, p. 1049, ss. 4.5; Stats.1987, c. 1201, ss. 8;
Stats.1987, c. 1203, ss. 3, eff. Sept. 27, 1987; Stats.1988, c. 919, ss. 3.)
(Amended by Stats.1995, c. 154 (A.B.640), ss. 4.)
