<PAGE>
As filed with the Securities and Exchange Commission on July 11, 1997
Registration No. 33-_________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------
HERITAGE OAKS BANCORP
---------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 77-0388249
---------- ----------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
545 12 TH STREET, PASO ROBLES, CA. 93446
- ----------------------------------- -----
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
1997 HERITAGE OAKS BANCORP STOCK OPTION PLAN
---------------------------------------------
(FULL TITLE OF THE PLAN)
LAWRENCE P. WARD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
HERITAGE OAKS BANCORP
545 12TH STREET
PASO ROBLES, CA 93446
---------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(805) 239-5200
--------------
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
-------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
-------------------------------------------------------------------------
Common Stock, 107,366 shares $16.00 $1,717,856 $520.56
no par value
- --------------------------------------------------------------------------------
(1) This Registration Statement covers, in addition to the number of shares
of Common Stock stated above, such indeterminate number of shares as may become
subject to options under the 1997 Plan as a result of the adjustment provisions
thereof.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457 (g).
<PAGE>
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document containing the information in Part I and the documents
incorporated by reference into this Registration Statement constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933. Pursuant to the notes to Form S-8, such documents need not be filed with
the Securities and Exchange Commission but must be given to participants in the
1997 Plan.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this Registration
Statement:
(a) The Corporation's Annual Report on From 10-KSB for the year ended
December 31, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act since December 31, 1996; and
(c) The description of the Common Stock contained in the Corporation's
Registration Statement on Form S-4, dated April 8, 1994, and any
subsequent amendment updating such description.
Additionally, all documents subsequently filed by the Corporation pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and be part thereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
CALIFORNIA LEGISLATION
The Corporation and its subsidiary, Heritage Oaks Bank (the "Bank") are
subject to the California General Corporation Law (the "CGCL"), which provides a
detailed statutory framework covering limitation of liability of directors in
certain instances and indemnification of any officer or other agent of a
corporation who is made or threatened to be made a party to any legal proceeding
by reason of his or her services on behalf of such corporation.
With respect to limitation of liability, the CGCL permits a California
corporation to adopt a provision inn its articles of incorporation reducing or
eliminating the liability of a director to the corporation or its shareholders
for monetary damages for breach of the fiduciary duty of care, provided that
such liability does not arise from certain proscribed conduct (including
intentional misconduct and breach of duty of loyalty). The CGCL in this regard
relates only to actions brought by shareholders on behalf of the corporation
(i.e., "derivative actions") and does not apply to claims brought by outside
parties.
With respect to indemnification, the CGCL provides that to the extent any
officer, director or other agent of a corporation is successful "on the merits"
in defense of any legal proceeding to which such person is a party or is
threatened to be made a party by reason of his or her service on behalf of such
corporation or in defense of any claim, issue, or matter therein, such agent
shall be indemnified against expenses actually and reasonably incurred by the
agent in connection therewith, but does not require indemnification in any other
circumstance. The CGCL also provides that a corporation may indemnify any agent
of the corporation, including officers and directors, against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in a third party proceeding against such person by reason of his or her services
on behalf of the corporation, provided the person acted in good faith and in a
manner he or she reasonably believed to be in the best interests of such
corporation. The CGCL further provides that in derivative suites a corporation
may indemnify such a person against expenses incurred in such a proceeding,
provided such person acted in good faith and in a manner he or she reasonably
believed to be in the best interests of the corporation and its shareholders.
Indemnification is not available in derivative actions (i) for amounts paid or
expenses incurred in connection with a matter that is settled or otherwise
disposed of without court approval or (ii) with respect to matters for which the
agent shall have been adjudged to be liable to the corporation unless the court
shall determine that such person is entitled to indemnification.
The CGCL permits the advancing of expenses incurred in defending any
proceeding against a corporate agent by reason of his or her service on behalf
of the corporation upon the giving of a promise to repay any such sums in the
event it is later determined that such person is not entitled to be indemnified.
Finally, the CGCL provides that the indemnification provided by the statute is
not exclusive of other rights to which those seeking indemnification may be
entitled, by bylaw, agreement or otherwise, to the extent additional rights are
authorized in a corporation's articles of incorporation. The law further
permits a corporation to procure insurance on behalf of its directors, officers
and agents against any liability incurred by any such individual, even if a
<PAGE>
corporation would not otherwise have the power under applicable law to indemnify
the director, officer or agent for such expenses.
The Articles of Incorporation and Bylaws of the Bank and the Corporation
implement the applicable statutory framework by limiting the personal liability
of directors for monetary damages for a breach of a director's fiduciary duty of
care and allowing the Bank and the Corporation to expand the scope of their
indemnification of directors, officers and other agents to fullest extent
permitted by California law. The Articles of the Bank and the Corporation,
pursuant to the applicable provisions of the CGCL, also include a provision
allowing the Bank and the Corporation to include in their bylaws, and in
agreements between the Bank and the Corporation and their directors, officers
and other agents, provisions expanding the scope of indemnification beyond that
specifically provided under California law.
The Bylaws of the Bank and the Corporation have been amended to provided
for mandatory indemnification in certain instances.
INDEMNIFICATION AGREEMENTS
The Bank and the Corporation have entered into indemnification agreement
with each of their directors and certain of their respective officers
("Indemnification Agreements").
In general, the Indemnification Agreements have a number of principal
effects. First, the Indemnification Agreements establish the presumption that
the indemnitee has met the applicable standard of conduct required for
indemnification. Second, the Indemnification Agreements provide that, in
connection with any proceeding other than a proceeding brought by the
Corporation or the Bank directly in its own right, litigation expenses SHALL be
advanced to an indemnitee upon request and receipt of an undertaking to repay
the amount advanced if it is ultimately determined that the indemnitee is not
entitled to indemnification for the expenses. Third, the Indemnification
Agreements explicitly provide that in any threatened, pending or completed
action brought by or in the right of the Corporation or the Bank, the indemnitee
will be entitled to indemnification for expenses and against amounts paid in
settling or otherwise disposing of such an action, to the fullest extent
permitted by law, where the indemnified party meets the applicable standard of
conduct. Fourth, in the event that the Corporation or the Bank does not pay a
request for indemnification, the Indemnification Agreements allow the indemnitee
to contest the nonpayment by petitioning a court to make an independent
determination of whether the indemnitee is entitled to indemnification under the
Indemnification Agreement. Fifth, the Indemnification Agreements explicitly
provide for partial indemnification of costs and expenses in the event that an
indemnitee is not entitled to full indemnification under the terms of the
Indemnification Agreements. Sixth, the Indemnification Agreements automatically
incorporate future changes in the law that increase the protection available to
the indemnitee. Finally, the Indemnification Agreements explicitly provide that
actions by an indemnitee serving at the request of the Corporation or the Bank
as a director, officer or agent of another corporation, partnership, joint
venture or other enterprise, shall be covered by the indemnification.
<PAGE>
DIRECTORS' AND OFFICERS' LIABILITY INSURANCE
The Corporation presently maintains a policy of directors' and officers'
liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4a 1997 Heritage Oaks Bancorp Stock Option Plan
4b Form of stock option agreement
5 Opinion of Reitner & Stuart relating to the legality of
securities being registered, and consent
23a Consent of Vavrinek, Trine, Day & Co.
23b Consent of Reitner & Stuart is contained in the opinion filed as
Exhibit 5
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the
<PAGE>
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Section 210.3-19 of this chapter at the
start of any delayed offering or throughout a continuous offering.
Financial statements and information otherwise required by Section 10(a)(3)
of the Act need not be furnished, PROVIDED that the registrant includes in
the prospectus to this paragraph (a)(4) and other information necessary to
ensure that all other information in the prospectus is at least as current
as the date of those financial statements. Notwithstanding the foregoing,
with respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and information
required by Section 10(a)(3) of the Act or Section 210.3-19 of this chapter
if such financial statements and information are contained in periodic
reports file with or furnished to the Commission by the registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Form F-3.
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
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
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,
<PAGE>
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
Corporation 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 Paso Robles, State of California on
July 1, 1997.
HERITAGE OAKS BANCORP
By: /s/ LAWRENCE P. WARD
-------------------------
LAWRENCE P. WARD
President and Chief Executive officer
By: /s/ ROBERT E. BLOCH
-------------------------
ROBERT E. BLOCH
Executive Vice President and Chief Financial officer
<PAGE>
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.
Dated:
/s/ B.R. BRYANT Chairman of the July 2, 1997
- ------------------------ Board of
B.R. BRYANT Directors
Vice chairman July , 1997
- ------------------------ of the Board
DONALD H. CAMPBELL of Directors
/s/ ELIZABETH A. COUSINS
- ------------------------ Director July 1, 1997
ELIZABETH A. COUSINS
- ------------------------ Director July , 1997
DOLORES T. LACEY
/s/ MERLE F. MILLER
- ------------------------ Director July 2, 1997
MERLE F. MILLER
/s/ JOHN PALLA
- ------------------------ Director July 2, 1997
JOHN PALLA
/s/ J. RUSSELL ROY
- ------------------------ Director July 2, 1997
J. RUSSELL ROY
/s/ OLE K. VIBORG
- ------------------------ Director July 2, 1997
OLE K. VIBORG
/s/ LAWRENCE P. WARD
- ------------------------ Director July 1, 1997
LAWRENCE P. WARD
<PAGE>
EXHIBIT INDEX
PAGE AT WHICH
EXHIBIT APPEARS
IN SEQUENTIALLY
EXHIBIT DESCRIPTION NUMBERED COPY
- ------- ----------- -------------
4a 1997 Heritage Oaks Bancorp Stock Option Plan
4b Form of stock option agreement
5 Opinion of Reitner & Stuart relating to the legality
of securities being registered, and consent
23a Consent of Vavrinek, Trine, Day & Co.
23b Consent of Reitner & Stuart*
- -------------------------------
* Contained in the opinion filed as Exhibit 5
<PAGE>
EXHIBIT 4a
1997 HERITAGE OAKS BANCORP
STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
The purpose of this 1997 Heritage Oaks Bancorp Stock Option Plan (the
"Plan") is to advance the interests of the Company through providing select key
Employees and Directors of the Bank, the Company, and their Affiliates with the
opportunity to acquire Shares. By encouraging such stock ownership, the Company
seeks to attract, retain and motivate the best available personnel for positions
of substantial responsibility and to provide additional incentive to Directors
and key Employees of the Company or any Affiliate to promote the success of the
business.
2. DEFINITIONS.
As used herein, the following definitions shall apply:
(a) "Affiliate" shall mean any "parent corporation" or "subsidiary
corporation" of the Company, as such terms are defined in Section 424(e) and
(f), respectively, of the Code, and any other subsidiary corporations of a
parent corporation of the Company.
(b) "Agreement" shall mean a written agreement entered into in accordance
with Paragraph 5(c).
(c) "Award" shall mean an Option evidenced by a written agreement entered
into in accordance with Paragraph 5(c).
(d) "Bank" shall mean Heritage Oaks Bank.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(g) "Committee" shall mean the Stock Option Committee appointed by the
Board in accordance with Paragraph 5(a) hereof.
(h) "Common Stock" shall mean the common stock, no par value, of the
Company.
(I) "Company" shall mean Heritage Oaks Bancorp.
(j) "Continuous Service" shall mean the absence of any interruption or
termination of
1
<PAGE>
service as an Employee or Director of the Company or an Affiliate. Continuous
Service shall not be considered interrupted in the case of sick leave, military
leave or any other leave of absence approved by the Company or between the
Company, an Affiliate or a successor.
(k) "Director" shall mean any member of the Board, and any member of the
board of directors of any Affiliate that the Board has by resolution designated
as being eligible for participation in this Plan.
(l) "Non-Employee Director" shall mean any member of the Board who is a
"non-employee director" within the meaning of Rule 16b-3.
(m) "Effective Date" shall mean the date specified in Paragraph 13 hereof.
(n) "Employee" shall mean any person employed by the Company, the Bank or
an Affiliate who is an employee for federal tax purposes.
(o) "Exercise Price" shall mean the price per Optioned Share at which an
Option may be exercised.
(p) "ISO" means an option to purchase Common Stock which meets the
requirements set forth in the Plan, and which is intended to be and is
identified as an "incentive stock option" within the meaning of Section 422 of
the Code.
(q) "Market Value" shall mean the fair market value of the Common Stock,
as determined under Paragraph 7(b) hereof.
(r) "Non-ISO" means an option to purchase Common Stock which meets the
requirements set forth in the Plan but which is not intended to be and is not
identified as an ISO.
(s) "Option" means an ISO and/or a Non-ISO.
(t) "Optioned Shares" shall mean Shares subject to an Award granted
pursuant to this Plan.
(u) "Participant" shall mean any key Employee or other person who receives
an Award pursuant to the Plan.
(v) "Plan" shall mean this 1997 Heritage Oaks Bancorp Stock Option Plan.
(w) "Rule 16b-3" shall mean Rule 16b-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
(x) "Share" shall mean one share of Common Stock.
2
<PAGE>
3. TERM OF THE PLAN AND AWARDS.
(a) Term of the Plan. The Plan shall continue in effect for a term of 10
years from the Effective Date or the date the Plan is adopted by the Board
(whichever period ends earlier), unless sooner terminated pursuant to Paragraph
15 hereof. No Award shall be granted under the Plan after such 10 year term.
(b) Term of Awards. The term of each Award granted under the Plan shall
be established by the Committee, but shall not exceed 10 years; provided,
however, that in the case of an Employee who owns Shares representing more than
10% of the outstanding Common Stock at the time an ISO is granted, the term of
such ISO shall not exceed five years, subject to the provisions of Section 8(e)
hereof.
4. SHARES SUBJECT TO THE PLAN.
Except as otherwise required by the provisions of Paragraph 10 hereof, the
aggregate number of Shares deliverable pursuant to Awards shall not exceed
107,366 Shares. Such Shares will be authorized but unissued Shares. If any
Awards should expire, become unexercisable, or be forfeited, for any reason
without having been exercised or become vested in full, the Optioned Shares
shall, unless the Plan shall have been terminated, be available for the grant of
additional Awards under the Plan.
5. ADMINISTRATION OF THE PLAN.
(a) Composition of the Committee. The Plan shall be administered by the
Committee, which shall consist of not less than three (3) members of the Board
who are Non-Employee Directors. Members of the Committee shall serve at the
pleasure of the Board. In the absence at any time of a duly appointed
Committee, the Plan shall be administered by those members of the Board who are
Non-Employee Directors.
(b) Powers of the Committee. Except as limited by the express provisions
of the Plan or by resolutions adopted by the Board, the Committee shall have
sole and complete authority and discretion (i) to select Participants and grant
Awards, (ii) to determine the form and content of Awards to be issued in the
form of Agreements under the Plan, (iii) to interpret the Plan, (iv) to
prescribe, amend and rescind rules and regulations relating to the Plan, (v) to
make other determinations necessary or advisable for the administration of the
Plan. The Committee shall have and may exercise such other power and authority
as may be delegated to it by the Board from time to time. A majority of the
entire Committee shall constitute a quorum and the action of a majority of the
members present at any meeting at which a quorum is present, or acts approved in
writing by a majority of the Committee without a meeting, shall be deemed the
action of the Committee.
3
<PAGE>
(c) Agreement. Each Award shall be evidenced by a written agreement
containing such provisions as may be approved by the Committee. Each such
Agreement shall constitute a binding contract between the Company and the
Participant, and every Participant, upon acceptance of such Agreement, shall be
bound by the terms and restrictions of the Plan and of such Agreement. The
terms of each such Agreement shall be in accordance with the Plan. In
particular, the Committee shall set forth in each Agreement (i) the Exercise
Price of an Option, (ii) the number of Shares subject to, and the expiration
date of, the Award, (iv) the restrictions, if any, to be placed upon such Award,
or upon Shares which may be issued upon exercise of such Award, and (v) whether
the Option is intended to be an ISO or a Non-ISO.
The Chairman of the Committee and such other Directors and officers as
shall be designated by the Committee are hereby authorized to execute Agreements
on behalf of the Company and to cause them to be delivered to the recipients of
Awards.
(d) Effect of the Committee's Decisions. All decisions, determinations
and interpretations of the Committee shall be final and conclusive on all
persons affected thereby.
(e) Indemnification. In addition to such other rights of indemnification
as they may have, the members of the Committee shall be indemnified by the
Company in connection with any claim, action, suit or proceeding relating to any
action taken or failure to act under or in connection with the Plan or any
Award, granted hereunder to the full extent provided for under the Company's
governing instruments with respect to the indemnification of Directors.
6. GRANT OF OPTIONS.
(a) General Rule. Only key Employees and Directors shall be eligible to
receive grants of Options pursuant to the Plan.
(b) Special Rules for ISOs. The aggregate Market Value, as of the date
the option is granted, of the Shares with respect to which ISOs are exercisable
for the first time by an Employee during any calendar year (under all incentive
stock option plans, as defined in Section 422 of the Code, of the Company or any
present or future Parent or Subsidiary of the Company) shall not exceed
$100,000. Notwithstanding the foregoing, the Committee may grant Options in
excess of the foregoing limitations, in which case such Options granted in
excess of such limitations shall be Options which are Non-ISOs.
7. EXERCISE PRICE FOR OPTIONS
(a) Limits on Committee Discretion. The Exercise Price as to any
particular Option shall not be less than 100% of the Market Value of the
Options Shares on the date of grant without taking into account any restrictions
on the Optioned Shares. In the case of an Employee who owns Shares representing
more than 10% of the Company's outstanding Shares of Common Stock at the time an
ISO is granted, the Exercise Price shall not be less than 110% of the Market
4
<PAGE>
Value of the Optioned Shares at the time the ISO is granted.
(b) Standards for Determining Exercise Price. If the Common Stock is
listed on a national securities exchange (including NASDAQ National Market or
Small Cap System) on the date in question, then the Market Value per Share will
be the average of the highest and lowest selling price on such exchange on such
date, or if there were no sales on such date, then the Exercise Price shall be
the mean between the bid and asked price on such date. If the Common Stock is
traded otherwise than on a national securities exchange on the date in question,
then the Market Value per Share shall be the mean between the bid and asked
price on such date, or, if there is no bid and asked price on such date, then on
the next prior business day on which there was a bid and asked price. If no
such bid and asked price is available, then the Market Value per Share shall be
its fair market value as determined by the Committee, in its sole and absolute
discretion.
8. EXERCISE OF OPTIONS.
(a) Generally. Subject to (e) below, any Option granted hereunder shall
be exercisable at such times and under such conditions as shall be permissible
under the terms of the Plan and of the Agreement granted to a Participant. An
Option may not be exercised for a fractional Share.
(b) Procedure for Exercise. A Participant may exercise Options, subject
to provisions relative to its termination and limitations on its exercise, only
by (1) written notice of intent to exercise the Option with respect to a
specified number of Shares, and (2) payment to the Company (contemporaneously
with delivery of such notice) in cash , in Common Stock, or a combination of
cash and Common Stock, of the amount of the Exercise Price for the number of
Shares with respect to which the Option is then being exercised. Each such
notice shall be delivered, or mailed by prepaid registered or certified mail,
addressed to the Chief Financial Officer of the Company at the Company's
executive offices. Common Stock utilized in full or partial payment of the
Exercise Price for Options shall be valued at its Market Value per Share at the
date of exercise.
(c) Period of Exercisability. Except to the extent otherwise provided in
more restrictive terms of an Agreement, an Option may be exercised by a
Participant only with respect to the vested portion of such Option and only
while he is an Employee or Director and has maintained Continuous Service from
the date of the grant of the Option, or within three months after termination of
such Continuous Service (but not later than the date on which the Option would
otherwise expire), except if the Employee's or Director's Continuous Service
terminates by reason of:
(1) "Just Cause" which for purposes hereof shall mean termination
because of the Employee's or Director's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law,
rule or regulation (other than traffic violations or
5
<PAGE>
similar offenses) or final cease-and-desist order, then the Participant's
rights to exercise such Option shall expire on the date of such
termination;
(2) death, then all Options of the deceased Participant shall become
immediately exercisable and may be exercised within one year from the date
of his death (but not later than the date on which the Option would
otherwise expire) by the personal representatives of his estate or person
or persons to whom his rights under such Option shall have passed by will
or by laws of descent and distribution;
(3) Permanent and Total Disability (as such term is defined in
Section 22(e)(3) of the Code), then all Options of the disabled Participant
shall become immediately exercisable and may be exercised within one year
from the date of such Permanent and Total Disability, but not later than
the date on which the Option would otherwise expire.
(d) Effect of the Committee's Decisions. The Committee's determination
whether a Participant's Continuous Service has ceased, and the effective date
thereof, shall be final and conclusive on all persons affected thereby.
(e) No Option may be exercised prior to the first anniversary date of the
grant of such Option, at which time it may become exercisable with respect to no
more than 20% of the Optioned Shares. On each anniversary of the Option grant
thereafter, the Option may become exercisable with respect to no more than an
additional 20% of the Optioned Shares. Vesting shall cease immediately upon the
termination of employment or directorship of an optionee. The foregoing vesting
schedule is the most rapid vesting permitted under the Plan except in the case
of death or disability (which shall be governed by Paragraphs 8(c)(2) and (3)
above).
9. GRANTS OF OPTIONS TO NON-EMPLOYEE DIRECTORS.
(a) Notwithstanding any other provisions of this Plan to the contrary,
all Awards of Options to Non-Employee Directors pursuant to the Plan shall be
made by the Board and not the Committee. Each such option shall be a Non-ISO
Option. Such Non-ISOs shall have an Exercise Price per Share equal to the
Market Value of a Share on the date of grant.
(b) Terms of Exercise. Options received under the provisions of this
Paragraph may be exercised in accordance with Paragraph 8 above.
10. EFFECT OF CHANGES IN COMMON STOCK SUBJECT TO THE PLAN.
(a) Recapitalizations; Stock Splits, Etc. The number and kind of shares
reserved for issuance under the Plan, and the number and kind of shares subject
to outstanding Awards (and the Exercise Price thereof), shall be proportionately
adjusted for any increase, decrease, change or exchange of Shares for a
different number or kind of shares or other securities of the Company
6
<PAGE>
which results from a merger, consolidation, recapitalization, reorganization,
reclassification, stock dividend, split-up, combination of shares, or similar
event in which the number or kind of shares is changed without the receipt or
payment of consideration by the Company.
(b) Transactions in which the Company Is Not the Surviving Entity. In the
event of (i) the liquidation or dissolution of the Company, (ii) a merger or
consolidation in which the Company is not the surviving entity, (iii) the sale
or disposition of all or substantially all of the Company's assets or (iv) a
tender offer or acquisition by one person or a group of persons acting in
concert of more than 50% of the Company's outstanding Shares (any of the
foregoing to be referred to herein as a "Transaction"), the Committee shall
notify each optionee of the pendency of the Transaction. Upon delivery of said
notice, any Award granted prior to the Transaction shall be, notwithstanding the
provisions of Paragraph 8(e), exercisable in full and not only as to those
Shares with respect to which installments, if any, have been accrued, subject,
however, to earlier expiration or termination as provided elsewhere in the Plan.
Upon the date thirty (30) days after delivery of such notice, any option or
portion thereof not exercised shall terminate, and upon the effective date of
the Transaction, this Plan shall terminate, unless provision is made in
connection with the Transaction for assumption of Options theretofore granted,
or payment therefor, or substitution for such Options of new options covering
stock of a successor corporation, or a parent or subsidiary corporation thereof,
solely at the option of such successor corporation or parent or subsidiary
corporation, with appropriate adjustments as to number and kind of shares and
prices.
(c) Special Rule for ISOs. Any adjustment made pursuant to subparagraphs
(a) or (b) hereof shall be made in such a manner as not to constitute a
modification, within the meaning of Section 424(h) of the Code, of outstanding
ISOs.
(d) Conditions and Restrictions on New, Additional or Difference Shares or
Securities. If, by reason of any adjustment made pursuant to this Paragraph, a
Participant becomes entitled to new, additional or different shares of stock or
securities, such new, additional or different shares of stock or securities
shall thereupon be subject to all of the conditions and restrictions which were
applicable to the Shares pursuant to the Award before the adjustment was made.
(e) Other Issuances. Except as expressly provided in this Paragraph, the
issuance by the Company or an Affiliate of shares of stock of any class, or of
securities convertible in to Shares or stock of another class, for cash or
property or for labor or services either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, shall not affect and no adjustment
shall be made with respect to, the number, class, Exercise Price of Shares then
subject to Awards or reserved for issuance under the Plan.
11. NON-TRANSFERABILITY OF AWARDS.
Awards may not be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner other than by will or by the laws of descent and
distribution, or pursuant to the terms
7
<PAGE>
of a "qualified domestic relations order" (within the meaning of Section 414(p)
of the Code and the regulations and rulings thereunder). An Award may be
exercised only by a Participant, the Participant's personal representative or a
permitted transferee.
12. TIME OF GRANTING AWARDS.
The date of grant of an Award shall, for all purposes, be the later of the
date on which the Committee makes the determination of granting such Award, and
the Effective Date. Notice of the determination shall be given to each
Participant to whom an Award is so granted within a reasonable time after the
date of such grant.
13. EFFECTIVE DATE.
The Plan shall become effective immediately upon its approval by a
favorable vote of stockholders owning at least a majority of the Shares eligible
to be cast at a meeting duly held in accordance with applicable laws.
14. MODIFICATION OF AWARDS.
At any time, and from time to time, the Board may authorize the Committee
to direct execution of an instrument providing for the modification of any
outstanding Award, provided no such modification shall confer on the holder of
said Award any right or benefit which could not be conferred on him by the grant
of a new Award at such time, or impair the Award without the consent of the
holder of the Award.
15. AMENDMENT AND TERMINATION OF THE PLAN.
The Board may from time to time amend the terms of the Plan and, with
respect to any Shares at the time not subject to Awards, suspend or terminate
the Plan.
Except for any changes that may be required to be made at the direction of
the Department of Corporations in connection with a permit procedure under the
California Corporate Securities Law, shareholder approval must be obtained for
any amendment of the Plan that would change the number of Shares subject to the
Plan (except in accordance with Paragraph 10 above), change the category of
persons eligible to be Participants, or materially increase the benefits under
the Plan.
No amendment, suspension or termination of the Plan shall, without the
consent of any affected holders of an Award, alter or impair any rights or
obligations under any Award theretofore granted.
16. CONDITIONS UPON ISSUANCE OF SHARES.
8
<PAGE>
(a) Compliance with Securities Laws. Shares of Common Stock shall not be
issued with respect to any Award unless the issuance and delivery of such Shares
shall comply with all relevant provisions of law, including, without limitation,
the Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, any applicable state securities law, and the requirements of any
stock exchange upon which the Shares may then be listed.
(b) Special Circumstance. The inability of the Company to obtain approval
from any regulatory body or authority deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder shall relieve
the Company of any liability in respect of the non-issuance or sale of such
Shares.
(c) Committee Discretion. The Committee shall have the discretionary
authority to impose in Agreements such restrictions on Shares as it may deem
appropriate or desirable.
17. RESERVATION OF SHARES.
The Company, during the term of the Plan, will reserve and keep available a
number of Shares sufficient to satisfy the requirements of the Plan.
18. WITHHOLDING TAX.
The Company's obligation to deliver Shares upon exercise of Options shall
be subject to the Participant's satisfaction of all applicable federal, state
and local income and employment tax withholding obligations. The Committee, in
its discretion, may permit the Participant to satisfy the obligation, in whole
or in part, by irrevocably electing to have the Company withhold Shares, or to
deliver to the Company Shares that he already owns, having a value equal to the
amount required to be withheld. The value of Shares to be with withheld, or
delivered to the Company, shall be based on the Market Value of the Shares on
the date the amount of tax to be withheld is to be determined. As an
alternative, the Company may retain, or sell without notice, a number of such
Shares sufficient to cover the amount required to be withheld.
19. NO EMPLOYMENT OR OTHER RIGHTS.
In no event shall an Employee's or Director's eligibility to participate or
participation in the Plan create or be deemed to create any legal or equitable
right of the Employee, Director, or any other party to continue service with the
Company, the Bank, or any Affiliate of such corporations.
20. GOVERNING LAW.
The Plan shall be governed by and construed in accordance with the laws of
the State of California, except to the extent that federal law shall be deemed
to apply.
9
<PAGE>
EXHIBIT 4b
HERITAGE OAKS BANCORP
STOCK OPTION AGREEMENT UNDER 1997 STOCK OPTION PLAN
To: Granting Date:
------------------ ------------------------
We are pleased to notify you that Heritage Oaks Bancorp (the "Company")
hereby grants to you an option to purchase all or any part of ________________
shares of the Common Stock of the Company (the "Shares") at the exercise price
of $__________ (the "Exercise Price") per Share as a stock option under the
Company's 1997 Stock Option Plan (the "Plan").
THIS OPTION IS:
A. AN INCENTIVE OPTION ONLY IF THIS BLANK IS INITIALED BY THE
COMPANY AT THE SAME TIME THIS AGREEMENT IS DELIVERED TO YOU
_______.
OTHERWISE, IT IS A NON-QUALIFIED OPTION.
B. A "DIRECTOR OPTION" ONLY IF THIS BLANK IS INITIALED AT THE TIME
THIS AGREEMENT IS DELIVERED TO YOU ___________ . ALL DIRECTOR
OPTIONS ARE NON-QUALIFIED OPTIONS, REGARDLESS OF ANY OTHER TERMS
SET FORTH HEREIN.
THE OPTION MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE TERMS OF THE PLAN.
ONLY CERTAIN PROVISIONS OF THE PLAN ARE SUMMARIZED IN THIS STOCK OPTION
AGREEMENT (THIS "AGREEMENT").
1. PURPOSE OF THE OPTION.
One of the purposes of the Plan is to advance the interests of the Company
and its subsidiaries by stimulating the efforts of directors, officers and
full-time salaried employees on behalf of the Company, by granting them
financial participation in the progress of the Company.
2. SIGNATURE ON OPTION AGREEMENT.
This option cannot be exercised unless you first sign this document in the
place provided and return it to the Secretary of the Company. It should be
returned before the close of business on the 20th day after the granting of this
option. If you fail to do so, this option may terminate and be of no effect.
However, your signing and delivering this letter will not bind you to purchase
any Shares subject to the option. Your obligation to purchase the Shares can
arise only when you exercise this option in the manner set forth in Paragraph 3
below.
1
<PAGE>
3. TERMS OF OPTION AND EXERCISE OF OPTION.
Subject to the provisions of Paragraph 4 and this Paragraph 3, this option
shall vest and become exercisable as to the following shares on the following
dates:
Number of Months Number
Following Grant Of Shares
---------------- ---------
Any portion of this option that you do not exercise shall accumulate and
can be exercised by you any time prior to the expiration of _______________
(_____) months from the granting date.
This option may be exercised by delivering to the Chief Financial Officer
of the Company payment in full of the Exercise Price for the number of Shares
being purchased in cash or by certified check or official Company check or the
equivalent thereof acceptable to the Company or in Shares of Company common
stock, together with a written notice in a form satisfactory to the Company,
signed by you specifying the number of Shares you then desire to purchase and
the time of delivery thereof, which shall not be less than five (5) days and not
more than thirty (30) days after the giving of such notice unless an earlier or
later date is mutually agreed upon. (Common Stock utilized in full or partial
payment of the Exercise Price shall be valued at its market value (determined in
accordance with the Plan) at the date of exercise.) At such time the Company
shall, without transfer or issue tax to you (or such other person entitled to
exercise this option), deliver to you (or such person entitled to exercise this
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 of this option was 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. No
fractional shares shall be issued or delivered.
As a holder of this option, you shall have the rights of a shareholder with
respect to the Shares subject to this option only after such Shares shall have
been issued and delivered to you upon the exercise of this option.
4. TERMINATION OF OFFICE OR EMPLOYMENT.
Except to the extent otherwise provided in more restrictive terms of this
Agreement, this option may be exercised by you only with respect to the vested
portion of your option and only while you are an Employee or Director and have
maintained Continuous Service (all as defined in the Plan) from the date of the
grant of this option, or within three months after termination of such
Continuous
2
<PAGE>
Service (but not later than the date on which this option would otherwise
expire), except if the Employee's or Director's Continuous Service terminates by
reason of:
(a) "Just Cause" which for purposes hereof shall mean termination because
of the Employee's or Director's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order, then your rights to exercise this option shall expire on
the date of such termination;
(b) death, then all of your options shall become immediately exercisable
and may be exercised within one year from the date of your death (but not later
than the date on which the option would otherwise expire) by your personal
representatives of your estate or person or persons to whom your rights under
this option shall have passed by will or by laws of descent and distribution;
(c) Permanent and Total Disability (as such term is defined in Section
22(e)(3) of the Internal Revenue Code), then your options shall become
immediately exercisable and may be exercised within one year from the date of
such Permanent and Total Disability, but not later than the date on which the
option would otherwise expire.
The Company's determination whether your Continuous Service has ceased, and the
effective date thereof, shall be final and conclusive on all persons affected
thereby.
5. NONTRANSFERABILITY OF OPTION.
Your option may not be sold, pledged, assigned, hypothecated, transferred
or disposed of in any manner other than by will or by the laws of descent and
distribution, or pursuant to the terms of a "qualified domestic relations order"
(within the meaning of Section 414(p) of the Internal Revenue Code and the
regulations and rulings thereunder). This option may be exercised only by you,
your personal representative or a permitted transferee.
6. ADJUSTMENT OF AND CHANGES IN THE SHARES.
(a) The number and kind of shares reserved for issuance under the Plan,
and the number and kind of shares subject to this option (and the Exercise Price
thereof), shall be proportionately adjusted for any increase, decrease, change
or exchange of Shares for a different number or kind of shares or other
securities of the Company which results from a merger, consolidation,
recapitalization, reorganization, reclassification, stock dividend, split-up,
combination of shares, or similar event in which the number or kind of shares is
changed without the receipt or payment of consideration by the Company.
(b) In the event of (i) the liquidation or dissolution of the Company,
(ii) a merger or consolidation in which the Company is not the surviving entity,
(iii) the sale or disposition of all or substantially all of the Company's
assets or (iv) a tender offer or acquisition by one person or a group
3
<PAGE>
of persons acting in concert of more than 50% of the Company's outstanding
Shares (any of the foregoing to be referred to herein as a "Transaction"), the
Company shall notify you of the pendency of the Transaction. Upon delivery of
said notice, this option shall be, notwithstanding provisions to the contrary,
exercisable in full and not only as to those Shares with respect to which
installments, if any, have vested, subject, however, to earlier expiration or
termination as provided elsewhere in this option. Upon the date thirty (30)
days after delivery of such notice, this option or any portion thereof not
exercised shall terminate, unless provision is made in connection with the
Transaction for assumption of this option, or payment therefor, or substitution
for this option of a new option covering stock of a successor corporation, or a
parent or subsidiary corporation thereof, solely at the option of such successor
corporation or parent or subsidiary corporation, with appropriate adjustments as
to number and kind of shares and prices.
(c) Any adjustment made pursuant to subparagraphs (a) or (b) hereof shall
be made in such a manner as not to constitute a modification, within the meaning
of Section 424(h) of the Internal Revenue Code, of an outstanding Incentive
Option.
(d) If, by reason of any adjustment made pursuant to this Paragraph, you
become entitled to new, additional or different shares of stock or securities,
such new, additional or different shares of stock or securities shall thereupon
be subject to all of the conditions and restrictions which were applicable to
the Shares pursuant to this option before the adjustment was made.
(e) Except as expressly provided in this Paragraph, the issuance by the
Company or an Affiliate of shares of stock of any class, or of securities
convertible into Shares or stock of another class, for cash or property or for
labor or services either upon direct sale or upon the exercise of rights or
warrants to subscribe therefor, shall not affect and no adjustment shall be made
with respect to, the number, class, or Exercise Price of Shares then subject to
this option.
7. SUBJECT TO TERMS OF THE PLAN.
This Agreement and the option granted hereby shall be subject in all
respects to the terms and conditions of the Plan. In the event of any conflict
or inconsistency between this Agreement and the terms of the Plan, the terms of
the Plan shall control. Your signature herein represents your acknowledgment of
receipt of a copy of the Plan. Any dispute or disagreement which shall arise
under, or as a result of, or pursuant to, this Agreement shall be finally and
conclusively determined by the Board of Directors of the Company or duly
appointed Committee in its sole discretion, and such determination shall be
binding upon all parties.
8. TAX EFFECTS.
THE FEDERAL TAX CONSEQUENCES OF STOCK OPTIONS ARE COMPLEX AND SUBJECT TO
CHANGE. A TAXPAYER'S PARTICULAR SITUATION MAY BE SUCH THAT SOME VARIATION OF
THE GENERAL RULE IS APPLICABLE. ACCORDINGLY, AN
4
<PAGE>
OPTIONEE SHOULD CONSULT WITH HIS OR HER OWN TAX ADVISOR BEFORE EXERCISING ANY
OPTION OR DISPOSING OF ANY SHARES ACQUIRED UPON THE EXERCISE OF AN OPTION.
9. RIGHTS AS A SHAREHOLDER OR EMPLOYEE.
You have no rights as a shareholder of the Company with respect to any
Shares until the date of the issuance and delivery of a stock certificate to you
for such Shares. The existence of this option shall neither create nor imply a
right to continued employment with the Company.
10. NOTIFICATION OF SALE.
You agree that you, or any person acquiring Shares upon exercise of this
option, will notify the Company not more than five (5) days before any sale or
disposition of such Shares. If this option is a non-qualified option, you may,
in addition to the exercise price, be required to pay to the Company an amount
equal to the withholding taxes imposed.
HERITAGE OAKS BANCORP
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Agreed to as of this ______ day
of ______________________.
------------------------------
Optionee
5
<PAGE>
<PAGE>
EXHIBIT 5
REITNER & STUART
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
ATTORNEYS AT LAW
1319 Marsh Street
San Luis Obispo, CA 93401
Tel: (805) 545-8590 Fax: (805) 545-8599
BARNET REITNER* WASHINGTON D.C. OFFICE:
JOHN F. STUART 1730 K STREET, N.W., 11TH FLOOR
- ------------------------ WASHINGTON, D.C. 20006
*ADMITTED ONLY IN CALIFORNIA TEL (202) 466-2818 FAX (202) 466-3535
June 30, 1997
Heritage Oaks Bancorp
545 12th Street
Paso Robles, California 93446
Re: Registration Statement on Form S-8
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") being filed by Heritage Oaks Bancorp (the
"Company") with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of 107,366 shares of
the Company's common stock, (the "Common Stock"), issuable pursuant to stock
grants or upon the exercise of stock options granted pursuant to the Company's
1997 Stock Option Plan (the "Plan").
In rendering this opinion, we have examined such documents and records as
we have deemed relevant. We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
originals of all documents submitted to us as certified or reproduced copies.
Based upon the foregoing and such other and further review of fact and law
as we have deemed necessary or appropriate under the circumstances, and assuming
that (i) all options granted under the Plan will be granted pursuant to the
terms of the Plan, (ii) the consideration for the shares of Common Stock issued
pursuant to the exercise of such options will be received prior to the issuance
thereof and (iii) the shares of Common Stock issued pursuant to the exercise of
such options will be issued in accordance with the terms of the Plan and the
option agreements (as appropriate), upon which assumptions the following
opinions are expressly conditioned, it is our opinion that the shares upon the
exercise of options granted pursuant to the Plan and pursuant to the
Registration Statement will, when sold in accordance with the terms of the Plan
and the option agreements, be validly issued, fully paid and non-assessable.
This opinion is issued to you solely for use in connection with the
Registration Statement and is not to be quoted or otherwise referred to in any
financial statements of the Company or related documents, nor is it to be filed
with or furnished to any government agency or other person, without the prior
written consent of this firm in each instance.
<PAGE>
Heritage Oaks Bancorp
June 30, 1997
Page 2
This firm hereby consents to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to the undersigned under the
heading "Legal Matters" therein and in any prospectus delivered to participants
in the Plan and any amendments thereto.
Respectfully submitted,
/s/Reitner & Stuart
REITNER & STUART
JFS: wsm
<PAGE>
[LETTERHEAD]
July 7, 1997
Mr. Larry Ward, President
Heritage Oaks Bancorp
1200 Vine Street
Paso Robles, CA 93446
Dear Mr. Ward:
We give our consent to include the Company's annual report for 1996 and 1995
inclusive of our independent auditor's opinion in your S-8 registration
statement.
Yours very truly,
/s/ Ron S. White
-----------------
VAVRINEK, TRINE, DAY & CO., LLP
RSW/rd
971070
