Exhibit 99.3
GBC BANCORP
1999 EMPLOYEE STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
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This Stock Option Agreement ("Agreement") is made and entered into as
of the Date of Grant indicated below by and between GBC Bancorp, a California
corporation (the "Company"), and the person named below ("Participant").
WHEREAS, Participant is an employee, director or consultant of the
Company or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's 1999 Employee Stock Incentive Plan
(the "Plan"), the Board of Directors of the Company, or the committee of the
Board of Directors administering the Plan (the "Committee"), has approved the
grant to Participant of an option to purchase shares of the common stock of the
Company (the "Common Stock"), on the terms and conditions set forth herein; and
WHEREAS, the amount of compensation the recipient of the Option (as
defined below) could receive hereunder is based solely on an increase in the
value of the stock of the Company after the date of the grant;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. Grant Of Option; Certain Terms and Conditions. The Company hereby
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grants to Participant, and Participant hereby accepts, as of the Date of Grant,
an option to purchase the number of shares of Common Stock indicated below (the
"Option Shares") at the Exercise Price per share indicated below, which option
shall expire at 5:00 p.m., California time, on the Expiration Date indicated
below and shall be subject to all of the terms and conditions set forth in this
Agreement (the "Option"). On each anniversary of the Date of Grant, the Option
shall become exercisable to purchase, and shall vest with respect to, that
number of Option Shares (rounded to the nearest whole
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share) equal to the total number of Option Shares multiplied by the Annual
Vesting Rate indicated below.
Participant: ____________________
Date of Grant: _____________________
Number of shares purchasable: _____________________
Exercise Price per share: _____________________
Expiration Date: _____________________
Annual Vesting Rate: ____________________%
The Option is not intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Acceleration and Termination of Option.
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(a) Termination of Employment.
(i) Termination Within One Year After Change of Control. In
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the event that Participant shall cease to be an employee, director or
consultant of the Company or any of its subsidiaries (such event shall
be referred to herein as the "Termination" of Participant's
"Employment") for any reason, or for no reason (other than with
respect to an employee or consultant, if such Participant's Employment
is terminated as the result of malfeasance or gross misfeasance in the
performance of duties, or conviction of illegal activity in connection
therewith or conviction of a felony, or with respect to a non-employee
director, if such Participant's Employment is terminated as a result
of such Participant being declared of unsound mind by a order of court
or convicted of a felony), within one year after a Change of Control
(as hereinafter defined), then (A) the portion of the Option that has
not vested on or prior to the date of such Termination of Employment
shall fully vest on such date and (B) the Option shall terminate upon
the earlier of the Expiration Date or three months after the date of
such Termination of Employment. "Change of Control" shall mean the
first to occur of the following events:
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(A) any date upon which the directors of the Company who
were last nominated by the Board of Directors (the "Board") for
election as directors cease to constitute a majority of the directors
of the Company;
(B) the date of the first public announcement that any
person or entity, together with all Affiliates and Associates (as such
capitalized terms are defined in Rule 12b-2 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such person or entity, shall have become the Beneficial Owner (as
defined in Rule 13d-3 promulgated under the Exchange Act) of voting
securities of the Company representing 50% or more of the voting power
of the Company (a "50% Stockholder"); provided, however, that the
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terms "person" and "entity," as used in this clause (B), shall not
include (1) the Company or any of its subsidiaries, (2) any employee
benefit plan of the Company or any of its subsidiaries, (3) any entity
holding voting securities of the Company for or pursuant to the terms
of any such plan, or (4) any person or entity who was a 50%
Stockholder on the date of adoption of the Plan by the Board; or
(C) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or consolidation the sole
purpose of which is to change the Company's domicile solely within the
United States) the consummation of which results in the outstanding
securities of a ny class then subject to the Option being exchanged
for or converted into cash, property or a different kind of
securities; provided, however, that a Change of Control shall not be
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deemed to occur if, as a result of such reorganization, merger or
consolidation of the Company, the securities of any class then subject
to the Option (the "Option Securities") are exchanged for or converted
into securities that represent the same beneficial ownership of the
Company and possess the same voting, liquidation and other rights to
which the Option Securities were entitled immediately prior to such
reorganization, merger or consolidation.
(ii) Retirement. If Participant's Employment is Terminated by
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reason of Participant's retirement in accordance with the Company's then
current retirement policy ("Retirement"), and a Change of Control shall not
have occurred within one year prior thereto, then (A) the portion of the
Option that has not vested on or prior to the date of such Retirement shall
terminate on such date and (B) the remaining vested portion of the Option
shall terminate on the earlier of the Expiration Date or the date three (3)
months after the date of such Termination of Employment .
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(iii) Death or Permanent Disability. If Participant's
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Employment is Terminated by reason of the death or Permanent
Disability (as hereinafter defined) of Participant, and a Change of
Control shall not have occurred within one year prior thereto, then
(A) the portion of the Option that has not vested on or prior to the
date of such Termination of Employment shall terminate on such date
and (B) the remaining vested portion of the Option shall terminate
upon the earlier of the Expiration Date or the first anniversary of
the date of such Termination of Employment. "Permanent Disability"
shall mean the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment
that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months.
Participant shall not be deemed to have a Permanent Disability until
proof of the existence thereof shall have been furnished to the
Committee in such form and manner, and at such times, as the Committee
may require. Any determination by the Committee that Participant does
or does not have a Permanent Disability shall be final and binding
upon the Company and Participant.
(iv) Cause. If Participant's Employment is Terminated for
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"Cause" (as hereinafter defined), and a Change of Control shall not
have occurred within one year prior thereto, then the Option shall
terminate upon the date of such Termination of Employment, unless such
termination is waived by the Committee. "Cause" shall include (i) with
respect to an employee or consultant of the Company, malfeasance or
gross misfeasance in the performance of duties, or conviction of
illegal activity in connection therewith, conviction for a felony or
any conduct detrimental to the interests of the Company or any of its
subsidiaries, and the determination of the Committee with respect
thereto shall be final and conclusive and (ii) with respect to a non-
employee director of the Company, declaration that such director is of
unsound mind by an order of court or conviction of a felony.
(v) Other Termination. If Participant's Employment is
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Terminated for no reason, or for any reason other than Retirement,
death, Permanent Disability or Cause, and a Change of Control shall not
have occurred within one year prior thereto, then (A) the portion of
the Option that has not vested on or prior to the date of such
Termination of Employment shall terminate on such date and (B) the
remaining vested portion of the Option shall terminate on the earlier
of the Expiration Date or the date three (3) months after the date of
such Termination of Employment.
(b) Death Following Termination of Employment. Notwithstanding
anything to the contrary contained in this Agreement, if Participant shall die
at any time after the Termination of his or her Employment and prior to the
Expiration Date, then
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(i) the portion of the Option that has not vested on or prior to the date of
such death shall terminate on such date and (ii) the remaining vested portion of
the Option shall terminate on the earlier of the Expiration Date or the first
anniversary of the date of such death.
(c) Other Events Causing Acceleration of Option. The Committee, in
its sole discretion, may accelerate the exercisability of the Option at any time
and for any reason.
(d) Other Events Causing Termination of Option. Notwithstanding
anything to the contrary contained in this Agreement, the Option shall terminate
upon the consummation of any of the following events, or, if later, the
thirtieth day following the first date upon which such event shall have been
approved by both the Board and the shareholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets of
the Company.
3. Adjustments. In the event that the outstanding securities of the
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class then subject to the Option are increased, decreased or exchanged for or
converted into cash, property or a different number or kind of securities, or
cash, property or securities are distributed in respect of such outstanding
securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular cash dividend) or other distribution, stock split, reverse stock split
or the like, or in the event that substantially all of the property and assets
of the Company are sold, then, unless such event shall cause the Option to
terminate pursuant to Section 2(d) hereof, the Committee shall make appropriate
and proportionate adjustments in the number and type of shares or other
securities or cash or other property that may thereafter be acquired upon the
exercise of the Option; provided, however, that any such adjustments in the
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Option shall be made without changing the aggregate Exercise Price of the then
unexercised portion of the Option.
4. Exercise.
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(a) Subject to Section 8, the Option shall be exercisable during
Participant's lifetime only by Participant or by his or her guardian or legal
representative, and after Participant's death only by the person or entity
entitled to do so under Participant's last will and testament or applicable
intestate law. The Option may only be exercised by (i) the delivery to the
Company of a written notice of such exercise, which notice shall specify the
number of Option Shares to be purchased (the "Purchased Shares") and the
aggregate Exercise Price for such shares (the "Exercise Notice"), together with
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payment in full of such aggregate Exercise Price in cash or by check payable to
the Company; provided, however, that payment of such aggregate Exercise Price
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may instead be made, in whole or in part, by (i) the delivery to the Company of
a certificate or certificates representing shares of Common Stock, duly endorsed
or accompanied by duly executed stock powers, which delivery effectively
transfers to the Company good and valid title to such shares, free and clear of
any pledge, commitment, lien, claim or other encumbrance (such shares to be
valued on the basis of the aggregate Fair Market Value (as defined below)
thereof on the date of such exercise), provided that the Company is not then
prohibited from purchasing or acquiring such shares of Common Stock, or (ii) the
Participant authorizing a third party to sell a portion of the Purchased Shares
and remitting to the Company a sufficient portion of the sale proceeds to pay
the entire Exercise Price and any tax withholding resulting from such exercise.
(b) The "Fair Market Value" of a Common Share on any date (the
"Determination Date") shall be equal to the closing price per Common Share on
the business day immediately preceding the Determination Date, as reported in
The Wall Street Journal, Western Edition, or, if no closing price was so
reported for such immediately preceding business day, the closing price for the
next preceding business day for which a closing price was so reported, or, if no
closing price was so reported for any of the 30 business days immediately
preceding the Determination Date, the average of the high bid and low asked
prices per Common Share on the business day immediately preceding the
Determination Date in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use, or, if the Common Shares were not quoted by
any such organization on such immediately preceding business day, the average of
the closing bid and asked prices on such day as furnished by a professional
market maker making a market in the Common Shares selected by the Board.
5. Payment of Withholding Taxes. If the Company becomes obligated to
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withhold an amount on account of any tax imposed as a result of the exercise of
the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Participant shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company. At the
election of the Participant, and subject to such rules as the Company may
establish, such withholding obligations may be satisfied through the surrender
of Common Shares which the Participant already owns or to which the Participant
otherwise is entitled under the Plan.
6. Notices. All notices and other communications required or
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permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage
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prepaid, return receipt requested, to the Company at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer, or to Participant
at the address set forth beneath his or her signature on the signature page
hereto, or at such other addresses as they may designate by written notice in
the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding
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anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (i) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (ii) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Transferability. Neither the Option nor any interest therein may
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be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise
transferred in any manner other than by will or the laws of descent and
distribution; provided, however, that the Participant, may transfer the Option
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for no consideration to or for the benefit of the Participant's Immediate Family
(including, without limitation, to a trust for the benefit of the Participant's
Immediate Family or to a partnership or limited liability company for one or
more members of the Participant's Immediate Family), subject to such limits as
the Committee may establish, and the transferee shall remain subject to the
terms and conditions applicable to the Option prior to such transfer. The
foregoing right to transfer the Option shall apply to the right to consent to
amendments to this Agreement and, in the discretion of the Committee, shall also
apply to the right to transfer ancillary rights associated with the Option. The
term "Immediate Family" shall mean the Participant's spouse, parents, children,
stepchildren, adoptive relationships, sisters, brothers and grandchildren (and,
for this purpose, shall also include the Participant)
9. Plan. The Option is granted pursuant to the Plan, as in effect on
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the Date of Grant, and is subject to all the terms and conditions of the Plan,
as the same may be amended from time to time; provided, however, that no such
amendment shall deprive Participant, without his or her consent, of the Option
or of any of Participant's rights under this Agreement. The interpretation and
construction by the Committee of the Plan, this Agreement, the Option and such
rules and regulations as may be adopted by the Committee for the purpose of
administering the Plan shall be final and binding upon Participant. Until the
Option shall expire, terminate or be exercised in full, the Company shall, upon
written request therefor, send a copy of the Plan, in its then-current form, to
Participant or any other person or entity then entitled to exercise the Option.
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10. Shareholder Rights. No person or entity shall be entitled to
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vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. Employment or Contract Rights. No provision of this Agreement or
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of the Option granted hereunder shall (i) confer upon Participant any right to
continue in the employ of or contract with the Company or any of its
subsidiaries, (ii) affect the right of the Company and each of its subsidiaries
to terminate the employment or contract of Participant, with or without cause,
or (iii) confer upon Participant any right to participate in any employee
welfare or benefit plan or other program of the Company or any of its
subsidiaries other than the Plan. Participant hereby acknowledges and agrees
that the Company and each of its subsidiaries may terminate the employment or
contract of Participant at any time and for any reason, or for no reason, unless
Participant and the Company or such subsidiary are parties to a written
employment or independent contractor agreement that expressly provides
otherwise.
12. Governing Law. This Agreement and the Option granted hereunder
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shall be governed by and construed and enforced in accordance with the laws of
the State of California without reference to choice or conflict of law
principles.
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of ▇▇▇▇▇.
GBC BANCORP
By ________________________________
Authorized Representative
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PARTICIPANT
___________________________________
Signature
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Printed Name
___________________________________
Street Address
___________________________________
City, State and Zip Code
___________________________________
Social Security Number
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