<PAGE> 1
As filed with the Securities and Exchange Commission on: November 7, 1996
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
CENTRAL COAST BANCORP
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 77-0367061
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
301 MAIN STREET, SALINAS, CALIFORNIA 93901
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE)
----------------------------------------
AMENDED AND RESTATED CENTRAL COAST BANCORP
1994 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
----------------------------------------
NICK VENTIMIGLIA
CENTRAL COAST BANCORP
301 MAIN STREET, SALINAS, CALIFORNIA 93901
(NAME AND ADDRESS OF AGENT FOR SERVICE)
---------------
(408) 422-6642
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE OF PROCESS)
<TABLE>
<CAPTION>
====================================================================================================================
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Aggregate Amount of
to be Registered be Registered Price per Share Offering Price Registration Fee
====================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, no par value 311,901(1) $19.50(2) $6,082,069.50(2) $1,843.05
====================================================================================================================
</TABLE>
1 Issuable upon exercise of options to be granted under the Amended and
Restated Central Coast Bancorp 1994 Stock Option Plan
2 Estimated solely for the purpose of determining the registration fee,
based upon the average of the bid and asked prices for the Common Stock
on October 31, 1996, pursuant to Rule 457(h).
This Registration Statement, including exhibits, consists of 17
sequentially numbered pages. The Exhibit Index is located at page 5.
<PAGE> 2
This Registration Statement is being filed pursuant to General
Instruction E to Form S-8 to register additional shares of Common Stock of the
Registrant with respect to its Amended and Restated Central Coast Bancorp 1994
Stock Option Plan (the "Plan"). Shares of Common Stock offered pursuant to the
Central Coast Bancorp 1994 Stock Option Plan were registered with the Commission
pursuant to Registration Statement No. 33-89948, filed March 3, 1995 (the "Prior
S-8"). Except as modified herein, the contents of the Prior S-8, including
exhibits filed with it, are incorporated by reference. The following additional
required information is not contained in the Prior S-8:
ITEM 4. DESCRIPTION OF SECURITIES
The stock of the Registrant being registered is 311,901 additional
shares of Common Stock, no par value, of which the Registrant is authorized to
issue 20,000,000 shares. Each shareholder is entitled to one vote for each share
of Common Stock held on all matters to be voted on by shareholders. In any
election of directors each shareholder has a right to cumulate the shareholder's
votes, giving one candidate a number of votes equal to the number of directors
to be elected multiplied by the number of shares held by the shareholder, or
distributing such number of votes among as many candidates as the shareholder
shall see fit. Holders of Common Stock have no preemptive rights or other rights
to subscribe for additional shares. There are no conversion rights, redemption
rights, or sinking fund provisions with respect to shares of Common Stock.
Subject to preferences that may be applicable to any shares of any
preferred stock outstanding at that time, holders of Common Stock of the
Registrant are entitled to receive ratably such dividends as may be declared by
the Board of Directors out of funds legally available therefor, and in the event
of liquidation, dissolution or winding up of the Registrant, are entitled to
share ratably in all assets remaining after the payment of all liabilities.
ITEM 8. EXHIBITS
See Index to Exhibits.
<PAGE> 3
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 Salinas , California, on this 31st day of October, 1996.
CENTRAL COAST BANCORP
By: /s/ Nick Ventimiglia
---------------------------
Nick Ventimiglia
President and
Chief Executive Officer
Power of Attorney
Each person whose signature appears below on this Registration
Statement hereby constitutes and appoints Nick Ventimiglia and Thomas A. Sa and
each of them, with full power to act without the other, his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities (until revoked in writing) to sign registration statements
pursuant to the Securities Act of 1933, as amended, relating to the registration
of shares of Common Stock of Central Coast Bancorp to be offered pursuant to the
Amended and Restated Central Coast Bancorp 1994 Stock Option Plan and to sign
any and all amendments (including post-effective amendments and amendments
thereto) to such registration statements, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
<PAGE> 4
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Nick Ventimiglia President, Chief October 31, 1996
- ---------------------
Nick Ventimiglia Executive Officer
and Director
/s/ Thomas A. Sa Chief Financial October 31, 1996
- ---------------------
Thomas A. Sa Officer (Principal
Financial and
Accounting Officer)
/s/ Andrew E. Ausonio
- --------------------- Director October 31, 1996
Andrew E. Ausonio
/s/ C. Edward Boutonnet Director October 31, 1996
- -----------------------
C. Edward Boutonnet
/s/ Bradford G. Crandall
- ------------------------ Director October 31, 1996
Bradford G. Crandall
Director October 31, 1996
- -----------------------
Roger G. Emanuel
/s/ Alfred P. Glover Director October 31, 1996
- -----------------------
Alfred P. Glover
- ----------------------- Director October 31, 1996
Richard C. Green
/s/ Duncan L. McCarter Director October 31, 1996
- -----------------------
Duncan L. McCarter
/s/ Robert M. Mraule Director October 31, 1996
- -----------------------
Robert M. Mraule
/s/ Louis A. Souza Director October 31, 1996
- -----------------------
Louis A. Souza
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
No. Page No.
- --- --------
Exhibit Name
------------
<S> <C> <C>
5 Opinion of Counsel: 6
Bronson, Bronson & McKinnon LLP
23.1 Consent of Independent Auditors: 7
Deloitte & Touche LLP
23.2 Consent of Counsel (See Exhibit 5)
24 Power of Attorney (see signature pages)
99 Amended and Restated Central Coast Bancorp 1994 Stock Option Plan 8-17
</TABLE>
<PAGE> 1
Exhibit 5
October 28, 1996
Board of Directors
Central Coast Bancorp
301 Main Street
Salinas, CA 93901
Re: Amended and Restated Central Coast Bancorp 1994 Stock Option
Plan
Gentlemen:
We refer to the Registration Statement on Form S-8 to be filed by
Central Coast Bancorp (the "Company") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to an
additional 311,901 shares of the Company's Common Stock, no par value, issuable
under the Amended and Restated Central Coast Bancorp 1994 Stock Option Plan. As
counsel to the Company, we have examined such questions of law and such
corporate records and other documents as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion these shares have been duly and
validly authorized and, when issued and sold in the manner contemplated by the
Registration Statement, will be validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
BRONSON, BRONSON & McKINNON LLP
jwc/jwc
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Central Coast Bancorp on Form S-8 of our report dated January 31, 1996 relating
to the financial statements of Central Coast Bancorp appearing in the Form 10-K
of Central Coast Bancorp for the year ended December 31, 1995.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE, LLP
Salinas, California
November 12, 1996
<PAGE> 1
Exhibit 99
AMENDED AND RESTATED CENTRAL COAST BANCORP
1994 STOCK OPTION PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
1. PURPOSE 1
2. ADMINISTRATION 1
3. ELIGIBILITY 2
4. THE SHARES 2
5. EXERCISE PRICE, DURATION, EXERCISABILITY
AND TERMINATION OF OPTIONS 3
6. ADDITIONAL TERMS AND CONDITIONS OF OPTIONS 5
7. ADJUSTMENT OF, AND CHANGES IN, THE SHARES 6
8. AMENDMENT AND TERMINATION OF THE PLAN 7
9. EFFECTIVENESS OF THE PLAN 8
10. INFORMATION TO OPTIONEES 8
11. PRIVILEGES OF STOCK OWNERSHIP, SECURITIES LAW
COMPLIANCE 8
12. NOTICE OF SALE 8
13. INDEMNIFICATION 8
</TABLE>
<PAGE> 2
AMENDED AND RESTATED CENTRAL COAST BANCORP
1994 STOCK OPTION PLAN
1. PURPOSE
The purpose of this Central Coast Bancorp 1994 Stock Option Plan (the
"Plan") is to provide a method whereby those key employees and nonemployee
directors of Central Coast Bancorp and its affiliates (hereinafter collectively
referred to as the "Company"), who are primarily responsible for the management
and growth of the Company's business and who are presently making and are
expected to make substantial contributions to the Company's future management
and growth, may be offered incentives in addition to those presently available,
and may be stimulated by increased personal involvement in the fortunes and
success of the Company to continue in its service, thereby advancing the
interests of the Company and its shareholders.
The word "affiliate," as used in the Plan, means any bank or
corporation in any unbroken chain of banks or corporations beginning or ending
with the Company, if at the time of the granting of an option, each such bank or
corporation other than the last in that chain owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other banks or corporations in the chain.
2. ADMINISTRATION
The following provisions shall govern the administration of the Plan:
(a) Subject to paragraph (b) below, the Plan shall be administered by
the Board of Directors or by one or more duly appointed committees of the Board.
The Board of Directors may from time to time remove members from or add members
to the committee. Vacancies on the committee, however caused, shall be filled by
the Board of Directors. The Board of Directors may designate a Chairman and
Vice-Chairman of the committee from among the committee members. Acts of the
committee (i) at a meeting, held at a time and place and in accordance with
rules adopted by the committee, at which a quorum of the committee is present
and acting, or (ii) reduced to and approved in writing by all members of the
committee, shall be the valid acts of the committee.
(b) Discretionary grants of options to officers and directors of the
Company, including directors who are not also employees of the Company, may be
made by and all discretion with respect to the material terms of such options
may be exercised by either (i) the Board of Directors, or (ii) a duly appointed
committee of the Board composed solely of two or more Non-Employee Directors
having full authority to act in the matter. The term "Non-Employee Directors"
shall have the meaning set forth in Rule 16b-3 as promulgated by the Securities
and Exchange Commission ("SEC") under Section 16(b) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as such rule may be amended from
time to time, and as interpreted by the SEC ("Rule 16b-3").
1
<PAGE> 3
(c) The Board and any such committee(s) referred to in Section 2(a) or
2(b) is referred to hereinafter as the "Committee," except where otherwise
expressly provided or where the context requires otherwise.
(d) The Committee shall effect the grant of options under the Plan by
execution of instruments in writing in a form approved by the Committee. Subject
to the express terms and conditions of the Plan, the Committee shall have full
power to construe the Plan and the terms of any option granted under the Plan,
to prescribe, amend and rescind rules and regulations relating to the Plan or
such options and to make all other determinations necessary or advisable for the
Plan's administration, including, without limitation, the power to (i) determine
which persons meet the requirements of Section 3 hereof for selection as
participants in the Plan; (ii) determine to whom of the eligible persons, if
any, options shall be granted under the Plan; (iii) establish the terms and
conditions required or permitted to be included in every option agreement or any
amendments thereto, including whether options to be granted thereunder shall be
"incentive stock options," as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code") or nonstatutory stock options not
described in Sections 422(b) or 423(a) of the Code; (iv) specify the number of
shares to be covered by each option; (v) determine the fair market value of
shares of the Company's common stock for any purpose under this Plan; (vi) take
appropriate action to amend any option hereunder, provided that no such action
may be taken without the written consent of the affected optionee; and (vii)
make all other determinations deemed necessary or advisable for administering
the Plan. The Committee's determination on the foregoing matters shall be
conclusive.
3. ELIGIBILITY
The persons who shall be eligible to receive the discretionary grant of
options under this Plan shall be those key employees, officers and directors of
the Company (including directors of the Company who are not also employees of
the Company) and persons who became employees of the Company within thirty days
of the date of grant of an option ("Eligible Persons").. Notwithstanding any
other provision of this Plan no Eligible Person shall be granted options to
purchase more than an aggregate of 65,000 shares of the Company's common stock
under this Plan, as adjusted pursuant to Section 7.
4. THE SHARES
The shares of stock subject to options authorized to be granted under
the Plan shall consist of 539,398 shares of the Company's no par value common
stock (the "Shares"), or the number and kind of shares of stock or other
securities which shall be substituted for such Shares or to which such Shares
shall be adjusted as provided in Section 7 hereof. Upon the expiration or
termination for any reason of an outstanding option under the Plan which has not
been exercised in full, all unissued Shares thereunder shall again become
available for the grant of options under the Plan. Shares of the Company's
common stock which are (i) delivered by an optionee in payment of the
2
<PAGE> 4
exercise price of an option pursuant to Section 6(a), or (ii) delivered by an
optionee, or withheld by the Company from the shares otherwise due upon exercise
of a nonstatutory stock option, in satisfaction of applicable withholding taxes
as permitted by Section 6(c) shall again become available for the grant of
options under the Plan.
5. EXERCISE PRICE, DURATION, EXERCISABILITY AND TERMINATION OF
OPTIONS
Options, in the discretion of the Committee, may be granted at any time
prior to the termination of the Plan to Eligible Persons. Options granted by the
Committee pursuant to the Plan shall be subject to the following terms and
conditions:
(a) Grant of Options. Options granted pursuant to the Plan may be
either incentive stock options or nonstatutory stock options; provided, however,
that Eligible Persons must be an employee of the Company or its affiliates to be
granted an incentive stock option. If the aggregate fair market value of the
shares issuable upon exercise of incentive stock options which are exercisable
for the first time during any one calendar year under all incentive stock
options held by an optionee exceeds $100,000 (determined at the time of the
grant of the options), such options shall be treated as nonstatutory stock
options to the extent of such excess.
(b) Exercise Price. The purchase price under each option shall not be
less than one hundred percent of the fair market value of the Shares subject
thereto on the date the option is granted; provided, however, that the purchase
price of an option granted to an individual who owns stock possessing more than
ten percent of the total combined voting power of all classes of stock of the
Company shall not be less than one hundred ten percent of the fair market value
of the Shares subject thereto on the date the option is granted. For any
purposes under this Plan, fair market value per share shall mean, where there is
a public market for the Company's common stock, the mean of the bid and asked
prices (or the closing price if listed on a stock exchange or The Nasdaq
National Market of the Company's common stock for the date of grant, as reported
in the Wall Street Journal (or, if not so reported, as otherwise reported by The
Nasdaq Stock Market or the National Quotation Bureau). If such information is
not available for the date of grant, then such information for the last
preceding date for which such information is available shall be considered as
the fair market value.
(c) Duration of Options. Each option shall be for a term determined by
the Committee; provided, however, that the term of any option may not exceed ten
years and, provided further, that the term of any incentive stock option granted
to an individual who owns stock possessing more than ten percent of the total
combined voting power of all classes of stock of the Company shall not exceed
five years. Each option shall vest in such manner and at such time as the
Committee shall determine and the Committee may accelerate the time of exercise
of any option; provided, however, that no option shall vest for exercise at a
rate of less than twenty percent per year during the five year period following
the date of grant of an option.
3
<PAGE> 5
(d) Termination of Employment or Director Status. Upon the termination
of an optionee's status as an employee or director of the Company, his or her
rights to exercise an option then held shall be only as follows:
DEATH OR DISABILITY: If an optionee's employment or service as
a director is terminated by death or disability, such optionee or such
optionee's qualified representative (in the event of the optionee's mental
disability) or the optionee's estate (in the event of optionee's death) shall
have the right for a period of twelve (12) months (or such longer period as the
Committee may determine at the date of grant or during the term of the option)
following the date of such termination to exercise the option to the extent the
optionee was entitled to exercise such option on the date of such termination;
provided the actual date of exercise is in no event after the expiration of the
term of the option. To the extent the option is not exercised within such period
the option will terminate. An optionee's "estate" shall mean the optionee's
legal representative or any person who acquires the right to exercise an option
by reason of the optionee's death.
CAUSE: If an optionee's employment is terminated because such
optionee is determined by the Board to have committed an act of embezzlement,
fraud, dishonesty, breach of fiduciary duty to the Company, or to have
deliberately disregarded the rules of the Company which resulted in loss, damage
or injury to the Company, or if an optionee makes any unauthorized disclosure of
any of the secrets or confidential information of the Company, induces any
client or customer of the Company to break any contract with the Company or
induces any principal for whom the Company acts as agent to terminate such
agency relations, or engages in any conduct which constitutes unfair competition
with the Company, or if an optionee is removed from any office of the Company by
any bank regulatory agency, the optionee shall have the right for a period of
thirty days to exercise the option to the extent the option was exercisable on
the date of termination; provided that the date of exercise is in no event after
the expiration of the term of the option. To the extent the option is not
exercised within such period the option will terminate. For the purpose of this
paragraph, termination of employment shall be deemed to occur when the Company
dispatches notice or advice to the optionee that the optionee's employment is
terminated, and not at the time of optionee's receipt thereof.
OTHER REASONS: If an optionee's employment or service as a
director is terminated for any reason other than those mentioned above under
"Death or Disability" and "Cause," the optionee may, within three months (or
such longer period as the Committee may determine at the date of grant or during
the term of the option) following such termination, exercise the option to the
extent such option was exercisable on the date of termination, provided the date
of exercise is in no event after the expiration of the term of the option and
provided further that any option which is exercised more than three months
following termination shall be treated as a nonstatutory option whether or not
it was designated as such at the time it was granted. To the extent the option
is not exercised within such period the option will terminate.
4
<PAGE> 6
6. ADDITIONAL TERMS AND CONDITIONS OF OPTIONS
The following terms and conditions shall apply to all options granted
pursuant to the Plan:
(a) Exercise of Options. To the extent the right to purchase Shares has
vested under an optionee's stock option agreement, options may be exercised from
time to time by delivering payment therefor in cash, certified check, official
bank check, or the equivalent thereof acceptable to the Company, together with
written notice to the Secretary of the Company, identifying the option or part
thereof being exercised and specifying the number of Shares for which payment is
being tendered. To the extent permitted by an optionee's stock option agreement,
an optionee may also exercise an option by the delivery and surrender of shares
of Company common stock which (a) have been owned by the optionee for at least
six months or such other period as the Committee may require; and (b) have an
aggregate fair market value on the date of surrender equal to the exercise
price. In addition, an option may be exercised by delivering to the Company (i)
an exercise notice instructing the Company to deliver the certificates for the
Shares purchased to a designated brokerage firm and (ii) a copy of irrevocable
instructions delivered to the brokerage firm to sell the Shares acquired upon
exercise of the option and to deliver to the Company from the sale proceeds
sufficient cash to pay the exercise price and applicable withholding taxes
arising as a result of the exercise.
The Company shall deliver to the optionee, without transfer or issue
tax to the optionee (or other person entitled to exercise the option), at the
principal office of the Company, or such other place as shall be mutually
acceptable, a certificate or certificates for such Shares dated the date the
options were validly exercised; provided, however, that the time of such
delivery may be postponed by the Company for such period as may be required for
it with reasonable diligence to comply with any requirements of law.
(b) Transferability of Option and Shares. Each option shall be
transferable only by will or the laws of descent and distribution and shall be
exercisable during the optionee's lifetime only by the optionee, or in the event
of disability, the optionee's qualified representative. In addition, in order
for Shares acquired upon exercise of incentive stock options to receive the tax
treatment afforded such Shares, the Shares may not be disposed of within two
years from the date of the option grant nor within one year after the date of
transfer of such Shares to the optionee.
(c) Withholding. The Company shall have the right to condition the
issuance of Shares upon exercise of an option upon payment by the optionee of
any applicable taxes required to be withheld under federal, state or local tax
laws or regulations in connection with such exercise. To the extent permitted in
an optionee's stock option agreement, an optionee may elect to pay such tax by
(i) requesting the Company to withhold a sufficient number of Shares from the
total number of Shares issuable upon exercise of the option or (ii) delivering a
sufficient number of shares of Company common stock which have been held by the
optionee for at least six months (or such
5
<PAGE> 7
other period as the Committee may require) to the Company. The value of shares
withheld or delivered shall be the fair market value of such shares on the date
the exercise becomes taxable as determined by the Committee. Such an election is
subject to approval or disapproval by the Committee.
(d) Other Terms and Conditions. Options may also contain such other
provisions, which shall not be inconsistent with any of the foregoing terms, as
the Committee shall deem appropriate. No option, however, nor anything contained
in the Plan, shall confer upon any optionee any right to continue in the employ
or in the status as a director of the Company, nor limit in any way the right of
the Company to terminate an optionee's employment at any time.
7. ADJUSTMENT OF, AND CHANGES IN, THE SHARES
(a) Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the number of shares of common stock covered by
each outstanding option, and the number of shares of common stock which have
been authorized for issuance under the Plan but as to which no options have yet
been granted, as well as the price per share of common stock covered by each
such outstanding option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of common stock resulting from a stock
split, reverse stock split, stock dividend, recapitalization, combination or
reclassification of the common stock, or any other increase or decrease in the
number of issued shares of common stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board of
Directors, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of common stock subject to an option.
(b) Dissolution, Liquidation, Sale or Merger. In the event of a
proposed dissolution or liquidation of the Company, options outstanding under
the Plan shall terminate immediately before the consummation of such proposed
action. The Board will, in such circumstances, provide written notice to the
optionees of the expected dates of termination of outstanding options and
consummation of the proposed dissolution or liquidation.
In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into another
corporation in a transaction in which the Company is not the surviving
corporation, outstanding options may be assumed or equivalent options may be
substituted by the successor corporation (or a parent or subsidiary of the
successor corporation), unless the successor corporation does not agree to
assume the options or to substitute equivalent options. If outstanding options
6
<PAGE> 8
are not assumed or substituted by equivalent options, all outstanding options
shall terminate immediately before the consummation of such sale or merger
(subject to the actual consummation of the sale or merger) and the Company shall
provide written notice to the optionees of the expected dates of termination of
the options and consummation of such transaction. If the transaction is not
consummated, unexercised options shall continue in accordance with their
original terms.
(c) Notice of Adjustments, Fractional Shares. To the extent the
foregoing adjustments relate to stock or securities of the Company, such
adjustments shall be made by the Committee, whose determination in that respect
shall be final, binding and conclusive. No right to purchase fractional shares
shall result from any adjustment in options pursuant to this Section 7. In case
of any such adjustment, the shares subject to the option shall be rounded down
to the nearest whole share. Notice of any adjustment shall be given by the
Company to each holder of an option which was in fact so adjusted and such
adjustment (whether or not such notice is given) shall be effective and binding
for all purposes of the Plan.
No adjustment shall be made for dividends or other rights for which the
record date is prior to the date of such issuance, except as provided in Section
7 hereof.
Any issue by the Company of shares of stock of any class, or securities
convertible into shares of any class, shall not affect the number or price of
shares of common stock subject to the option, and no adjustment by reason
thereof shall be made. The grant of an option pursuant to the Plan shall not
affect in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell, or
transfer all or any part of its business or assets.
8. AMENDMENT AND TERMINATION OF THE PLAN
The Board shall have complete power and authority to terminate or amend
the Plan; provided, however, that the Board shall not, without the approval of
the shareholders of the Company, amend the Plan in a manner that requires
shareholder approval for continued compliance Section 422 of the Code, any
successor rules, or other regulatory authority. Except as provided in Section 7,
no termination, modification or amendment of the Plan may, without the consent
of the optionee to whom such option was previously granted under the Plan,
adversely effect the rights of such optionee. Any consent required by the
preceding sentence may be obtained in any manner deemed appropriate by the
Committee.
The Plan, unless sooner terminated, shall terminate on March 21, 2004,
ten years from the date the Plan was originally adopted by the Board. An option
may not be granted under the Plan after the Plan is terminated.
7
<PAGE> 9
9. EFFECTIVENESS OF THE PLAN
The Plan became effective upon adoption by the Board of Directors on
March 21, 1994 and was approved by the shareholders of the Company at the 1994
annual meeting of shareholders.
10. INFORMATION TO OPTIONEES
The Company shall provide to each optionee during the period for which
he or she has one or more outstanding options, copies of all annual reports and
all other information which is provided to shareholders of the Company. The
Company shall not be required to provide such information to key employees whose
duties in connection with the Company assure their access to equivalent
information.
11. PRIVILEGES OF STOCK OWNERSHIP, SECURITIES LAW COMPLIANCE
No optionee shall be entitled to the privileges of stock ownership as
to any Shares not actually issued and delivered to the optionee. The exercise of
any option under the Plan shall be conditioned upon the registration of the
Shares with the SEC and qualification of the options and underlying Shares under
the California securities laws, unless in the opinion of counsel to the Company
such registration or qualification is not necessary. The Company shall
diligently endeavor to comply with all applicable securities laws before any
options are granted under the Plan and before any Shares are issued pursuant to
the exercise of such options.
12. NOTICE OF SALE
The optionee shall give the Company notice of any sale or other
disposition of any Shares acquired upon exercise of an incentive stock option
not more than five days after such sale or disposition.
13. INDEMNIFICATION
To the extent permitted by applicable law in effect from time to time,
no member of the Board or the Committee shall be liable for any action or
omission of any other member of the Board or Committee nor for any act or
omission on the member's own part, excepting only the member's own willful
misconduct or gross negligence. The Company shall pay expenses incurred by, and
satisfy a judgment or fine rendered or levied against, a present or former
director or member of the Committee in any action against such person (whether
or not the Company is joined as a party defendant) to impose liability or a
penalty on such person for an act alleged to have been committed by such person
while a director or member of the Committee arising with respect to the Plan or
administration thereof or out of membership on the Committee or by the Company,
or all or any combination of the preceding; provided the director or Committee
member was
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acting in good faith, within what such director or Committee member reasonably
believed to have been within the scope of his or her employment or authority and
for a purpose which he or she reasonably believed to be in the best interests of
the Company or its shareholders. Payments authorized hereunder include amounts
paid and expenses incurred in settling any such action or threatened action.
This section does not apply to any action instituted or maintained in the right
of the Company by a shareholder or holder of a voting trust certificate
representing shares of the Company. The provisions of this section shall apply
to the estate, executor, administrator, heirs, legatees or devisees of a
director or Committee member, and the term "person" as used in this section
shall include the estate, executor, administrator, heirs, legatees or devisees
of such person. BBMSF2: 166666 ver 3 October 22, 1996
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