**Exhibit10.38**

 

**NOTWITHSTANDINGANY OTHER PROVISION OF THIS AGREEMENT, NO SHARES OF WESTERN SIERRA BANCORP’SCOMMON STOCK SHALL BE ISSUED PURSUANT HERETO UNLESS THE WESTERN SIERRA BANCORP1999 STOCK OPTION PLAN SHALL HAVE FIRST BEEN APPROVED BY THE SHAREHOLDERS OFWESTERN SIERRA BANCORP.**

 

**WESTERN SIERRA BANCORP**

**INCENTIVE STOCK OPTION AGREEMENT**

 

This Incentive Stock Option Agreement (the“Agreement”) is made and entered into as of the 20th day of March, 2003, by andbetween Western Sierra Bancorp, a California corporation (the “Bancorp”), andDouglas Nordell (“Optionee”);

 

WHEREAS, pursuant to the Western Sierra Bancorp 1999Stock Option Plan (the “Plan”), a copy of which is attached hereto, the Boardof Directors of the Bancorp has authorized granting to Optionee an incentivestock option to purchase all or any part of Three Thousand (3,000) authorizedbut unissued shares of the Bancorp’s common stock at the price of Twenty-SevenDollars and Seventy-Three Cents ($27.73) per share, such option to be for the termand upon the terms and conditions hereinafter stated;

 

NOW, THEREFORE, it is hereby agreed:

 

**1. Grant of Option.** Pursuant to saidaction of the Board of Directors, the Bancorp hereby grants to Optionee theoption to purchase, upon and subject to the terms and conditions of the Planwhich is incorporated in full herein by this reference, all or any part ofThree Thousand (3,000) shares of the Bancorp’s common stock (hereinafter called“stock”) at the price of Twenty-Seven Dollars and Seventy-Three Cents ($27.73)per share, which price is not less than one hundred percent (100%) of the fairmarket value of the stock (or not less than 110% of the fair market value ofthe stock for Optionee-shareholders who own securities possessing more than tenpercent (10%) of the total combined voting power of all classes of securitiesof the Bancorp) as of the date of action of the Board of Directors grantingthis option.

 

**2. Exercisability.** This option shallbe exercisable as to:

 
| **Number of  Shares** |   | **Vesting Date** |
|-----------------------|--------|------------------|
| 600                   |   | immediate        |
| 600                   |   | 03/20/04         |
| 600                   |   | 03/20/05         |
| 600                   |   | 03/20/06         |
| 600                   |   | 03/20/07         |

 

This option shall remain exercisable as to all vested shares untilMarch 20, 2013 (but not later than ten (10) years from the date this option isgranted) unless this option has expired or terminated earlier in accordancewith the provisions hereof or in the Plan. Subject to paragraphs 4 and 5,shares as to which this option becomes exercisable pursuant to the foregoingprovision may be purchased at any time prior to expiration of this option.

 

**3. Exercise of Option.** This optionmay be exercised by written notice (substantially in the form as that which isattached as Exhibit A) delivered to the Bancorp stating the number of shareswith respect to which this option is being exercised, together with (a) cash inthe amount of the purchase price of such shares, or (b) subject to applicablelaw, with the Bancorp’s stock previously acquired by Optionee and held byOptionee for a period of at least six months. Notwithstanding the foregoing, inthe event Optionee does exercise the option by utilizing (b) above, Optioneeshould obtain tax advice as to the consequences of such action. Not less thanten (10) shares may be purchased at any one time unless the number purchased isthe total number which may be purchased under this option and in no event maythe option be exercised with respect to fractional shares. Upon exercise,Optionee shall make appropriate arrangements and shall be responsible for thewithholding of any federal and state taxes then due.

 

**4. Cessation of Employment.** Exceptas provided in Paragraphs 2 and 5 hereof, if Optionee shall cease to be anemployee of the Bancorp or a subsidiary corporation for any reason other thanOptionee’s death or disability [as defined in Section 22(e)(3) of the InternalRevenue Code of 1986, as amended from time to time (the “Code”)], this optionshall expire three (3) months thereafter. During the three (3) month periodthis option shall be exercisable only as to those installments, if any, whichhad accrued as of the date when Optionee ceased to be an employee of theBancorp or a subsidiary corporation.

 

**5. Termination of Employment for Cause.**If Optionee’s employment with the Bancorp or a subsidiary corporation isterminated for cause, this option shall expire thirty (30) days from the dateof such termination. Termination for cause shall include, but not be limitedto, termination for malfeasance or gross misfeasance in the performance ofduties or conviction of a crime involving moral turpitude, and, in any event,the determination of the Board of Directors with respect thereto shall be finaland conclusive.

 

**6. Nontransferability; Death or Disability of Optionee.**This option shall not be transferable except by will or by the laws of descentand distribution and shall be exercisable during Optionee’s lifetime only byOptionee. If Optionee dies while serving as an employee of the Bancorp or asubsidiary corporation, or during the three (3) month period referred to inParagraph 4 hereof, this option shall expire one (1) year after the date ofOptionee’s death or on the day specified in

 

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Paragraph 2 hereof, whichever is earlier. After Optionee’s death butbefore such expiration, the persons to whom Optionee’s rights under this optionshall have passed by will or by the laws of descent and distribution or theexecutor or administrator of Optionee’s estate shall have the right to exercisethis option as to those shares for which installments had accrued under Paragraph2 hereof as of the date on which Optionee ceased to be an employee of theBancorp or a subsidiary corporation.

 

If Optionee terminates his or her employment becauseof disability (as defined in Section 22(e)(3) of the Code), Optionee mayexercise this option to the extent he or she is entitled to do so at the dateof termination, at any time within one (1) year of the date of termination, orbefore the expiration date specified in Paragraph 2 hereof, whichever isearlier.

 

**7. Employment.** This Agreement shallnot obligate the Bancorp or a subsidiary corporation to employ Optionee for anyperiod, nor shall it interfere in any way with the right of the Bancorp or asubsidiary corporation to reduce Optionee’s compensation.

 

**8. Privileges of Stock Ownership.**Optionee shall have no rights as a shareholder with respect to the Bancorp’sstock subject to this option until the date of issuance of stock certificatesto Optionee. Except as provided in the Plan, no adjustment will be made fordividends or other rights for which the record date is prior to the date suchstock certificates are issued.

 

**9. Modification and Termination.** Therights of Optionee are subject to modification and termination upon theoccurrence of certain events as provided in Sections 13 and 14 of the Plan.

 

**10. Notification of Sale.** Optioneeagrees that Optionee, or any person acquiring shares upon exercise of thisoption, will notify the Bancorp not more than five (5) days after any sale orother disposition of such shares.

 

**11. Representations of Optionee.** Noshares issuable upon the exercise of this option shall be issued and deliveredunless and until the Bancorp has complied with all applicable requirements ofCalifornia and federal law and of the Securities and Exchange Commission and theCalifornia Department of Corporations pertaining to the issuance and sale ofsuch shares, and all applicable listing requirements of the securitiesexchanges, if any, on which shares of the Bancorp of the same class are thenlisted. Optionee agrees to ascertain that such requirements shall have beencomplied with at the time of any exercise of this option. In addition, if theOptionee is an “affiliate” for purposes of the Securities Act of 1933, theremay be additional restrictions on the resale of stock, and Optionee thereforeagrees to ascertain what those restrictions are and to abide by therestrictions and other applicable federal and state securities laws.

 

Furthermore, the Bancorp may, if it deems appropriate,issue stop transfer instructions against any shares of stock purchased upon theexercise of this option and affix to any certificate representing such sharesthe legends which the Bancorp deems appropriate.

 

Optionee represents that the Bancorp, its directors,officers, employees and agents have not and will not provide tax advice withrespect to the option, and Optionee agrees to consult with his or her own taxadvisor as to the specific tax consequences of the option, including theapplication and effect of federal, state, local and other tax laws.

 

**12. Notices.** Any notice to theBancorp provided for in this Agreement shall be addressed to it in care of itsPresident or Chief Financial Officer at its main office and any notice toOptionee shall be addressed to Optionee’s address on file with the Bancorp or asubsidiary corporation, or to such other address as either may designate to theother in writing. Any notice shall be deemed to be duly given if and whenenclosed in a properly sealed envelope and addressed as stated above anddeposited, postage prepaid, with the United States Postal Service. In lieu ofgiving notice by mail as aforesaid, any written notice under this Agreement maybe given to Optionee in person, and to the Bancorp by personal delivery to itsPresident or Chief Financial Officer.

 

**13. Incentive Stock Option.** ThisAgreement is intended to be an incentive stock option agreement as defined inSection 422 of the Code; provided, however, that if the option shall fail toconstitute an incentive stock option for any reason, the option shallthereafter be governed by the provisions of the Plan regarding nonqualifiedstock options.

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement asof the day and year first above written.

 
| **OPTIONEE** | **WESTERN SIERRA BANCORP** |
|--------------|----------------------------|
|         |                       |   |   |
| By           | /s/ Douglas  Nordell       |   | By | /s/ Gary Gall |   |   |
|         | Douglas Nordell            |   |   | Gary Gall,  President & CEO |
|         |                       |   |   |
|         |                       |   |   |
|         |                       | By | /s/ Chuck Bacchi |   |   |
|         |                       |   | Chuck  Bacchi,Chairman |
|              |                            |  |  |  |  |  |  |

 

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