**Exhibit10.46**

 

**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**

## **NONQUALIFIED STOCK OPTION AGREEMENT**

 

This Nonqualified Stock Option Agreement (the “Agreement”) is made andentered into as of the first day of January, 2002, by and between WesternSierra Bancorp, a California corporation (the “Bancorp”), and Harold Prescott,(“Optionee”);

 

WHEREAS, pursuant to the Western Sierra Bancorp 2002Stock Option Plan (the “Plan”), a copy of which is attached hereto, the Boardof Directors of the Bancorp has authorized granting to Optionee a nonqualifiedstock option to purchase all or any part of four hundred (400) authorized butunissued shares of the Bancorp’s common stock at the price of Sixteen Dollarsand Twenty Five Cents ($16.25) per share, such option to be for the term andupon 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 of fourhundred (400) shares of the Bancorp’s common stock (hereinafter called “stock”)at the price of Sixteen Dollars and Twenty Five Cents ($16.25) per share, whichprice is not less than one hundred percent (100%) of the fair market value ofthe stock as of the date of action of the Board of Directors granting thisoption.

 

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

 
| **Number of  Shares** |   | **Vesting Date** |
|-----------------------|--------|------------------|
| 400                   |   | Immediate        |
|                  |   |             |
|                  |   |             |

 

This option shall remain exercisable as to all vested shares untilJanuary 01, 2012 (but not later than ten (10) years from the date this optionis granted) 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 Directorship or Employment.**Except as provided in Paragraphs 2 and 5 hereof, if Optionee shall cease to bea director or an employee of the Bancorp or a subsidiary corporation for anyreason other than Optionee’s death or disability [as defined in Section22(e)(3) of the Internal Revenue Code of 1986, as amended from time to time(the “Code”)], this option shall expire three (3) months thereafter. During thethree (3) month period this option shall be exercisable only as to thoseinstallments, if any, which had accrued as of the date when Optionee ceased tobe a director or an employee of the Bancorp or a subsidiary corporation. IfOptionee is both a director and an employee, then such option shall expirethree (3) months after the latter of the date of termination of Optionee’sdirectorship or employment.

 

**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 a director or an employee of theBancorp or a subsidiary corporation, or during the three (3) month periodreferred to in Paragraph 4 hereof, this option shall expire one (1) year afterthe date of Optionee’s death or on the day

 

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specified in Paragraph 2 hereof, whichever is earlier. After Optionee’sdeath but before such expiration, the persons to whom Optionee’s rights underthis option shall have passed by will or by the laws of descent anddistribution or the executor or administrator of Optionee’s estate shall havethe right to exercise this option as to those shares for which installments hadaccrued under Paragraph 2 hereof as of the date on which Optionee ceased to bea director or an employee of the Bancorp or a subsidiary corporation.

 

If Optionee terminates his or her directorship oremployment because of disability (as defined in Section 22(e)(3) of the Code),Optionee may exercise this option to the extent he or she is entitled to do soat the date of termination, at any time within one (1) year of the date oftermination, or before the expiration date specified in Paragraph 2 hereof,whichever is earlier.

 

**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 andthe California Department of Corporations pertaining to the issuance and saleof such 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.

 

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

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

 

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