NOTICE
Exhibit
10.1
NOTICE
This
Restricted Stock Award Agreement (“Agreement”) will be valid only if the Grantee
executes and delivers this Agreement and the attached Stock Power of Attorney
to
Vail Banks, Inc., Attn: Xxxx X. Xxxxxx on or before November
1, 2005.
under
the
VAIL
BANKS, INC.
AMENDED
AND RESTATED STOCK INCENTIVE PLAN
THIS
AGREEMENT, made and entered into as of the 24th day of October 2005, by and
between Xxxx Xxxxx, Inc. (“the “Company”) and Xxx X. Xxxxx (“Grantee”).
WITNESSETH
THAT:
WHEREAS,
the Company maintains the Vail Banks, Inc. Amended and Restated Stock Incentive
Plan (the “Plan”), and the Grantee has been selected by the Committee to receive
a Restricted Stock Award under the Plan;
NOW,
THEREFORE, IT IS AGREED, by and between the Company and the Grantee, as follows:
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1.
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Award
of Restricted Stock
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1.1 The
Company hereby grants to the Grantee an award of 2,000 Shares of restricted
stock (“Restricted Stock”), subject to, and in accordance with, the
restrictions, terms and conditions set forth in this Agreement. The grant
date
of this award of Restricted Stock is October 24, 2005(“Grant Date”).
1.2 This
Agreement shall be construed in accordance and consistent with, and subject
to,
the provisions of the Plan (the provisions of which are incorporated herein
by
reference) and, except as otherwise expressly set forth herein, the capitalized
terms used in this Agreement shall have the same definitions as set forth
in the
Plan.
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2.
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Restrictions
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2.1 Subject
to Sections 2.2, 2.3, and 2.4 below, if the Grantee remains employed by the
Company, the Grantee shall become vested in the Restricted Stock as follows:
10%
of the Shares of Restricted Stock (rounded down to the next whole share)
shall
vest on each anniversary (each such date shall be a “Vesting Date”) of the Grant
Date, such that on October 25, 2015 (“Final Vesting Date”) all of the Shares of
Restricted Stock shall be fully vested. On each Vesting Date, Grantee shall
own
the Vested Shares of Restricted Stock free and clear of all restrictions
imposed
by this Agreement (except those imposed by Section 3.4 below). For purposes
of
this Agreement, employment with any Subsidiary of the Company, or service
as a
Director of the Company or any Subsidiary of the Company, shall be considered
employment with the Company.
2.2 In
the
event, prior to the Final Vesting Date, (i) Grantee dies while actively employed
by the Company, (ii) Grantee’s employment is terminated by reason of Disability,
(iii) Grantee’s employment is terminated by the Company other than for Cause (as
defined in Section 2(e) of the Plan),or (iv) Grantee terminates Grantee’s
employment for Good Reason (as defined in Section 2.5 below), the Restricted
Stock shall become fully vested and nonforfeitable as of the date of Xxxxxxx’s
death, Disability or termination of employment. The Company shall deliver
certificate(s) for the Restricted Stock, free and clear of any restrictions
imposed by this Agreement (except for Section 3.4) to Grantee (or, in the
event
of death, his surviving spouse or, if none, to his estate) as soon as practical
after Xxxxxxx’s date of death or termination for Disability, termination without
Cause, or termination for Good Reason. If Grantee terminates Grantee’s
employment without Good Reason or if the Company terminates Grantee for Cause,
the Restricted Stock shall cease to vest further and Grantee shall only be
entitled to the Restricted Stock that is vested as of his date of
termination.
2.3 Notwithstanding
the other provisions of this Agreement, in the event of a Change in Control
prior to Xxxxxxx’s Final Vesting Date, the Restricted Stock shall become fully
vested and nonforfeitable as of the date of the Change in Control. On the
date
of the Change in Control, the Company shall deliver to Grantee a certificate(s)
for the Restricted Stock, free and clear of any restrictions imposed by this
Agreement.
2.4 The
Restricted Stock may not be sold, assigned, transferred, pledged or otherwise
encumbered prior to the date Grantee becomes vested in the Restricted Stock.
2.5 For
purposes of this Section 2, “Good Reason” shall mean
(i) the
assignment to Grantee of any duties inconsistent with Xxxxxxx’s positions,
duties, responsibilities and status with the Company, its subsidiaries and
affiliates as of the date hereof, or a change in Grantee’s reporting
responsibilities, titles or offices which were in effect as of the date hereof,
or any removal of Grantee from, or any failure to re-elect Grantee to, any
of
such positions, except in connection with the termination of Grantee’s
employment by the Company for Cause or as a result of Xxxxxxx’s death or
Disability or termination by Grantee other than for Good Reason;
(ii) a
reduction by the Company in Grantee’s base salary as in effect on the date
hereof or as the same may be increased from time to time, or failure to give
Grantee annual salary increases consistent with performance review ratings
as
compared with other employees of the same or similar rank;
(iii) a
failure
by the Company to continue to cover Grantee under an annual bonus program
comparable to the annual bonus program provided to Grantee as of the date
hereof;
(iv) the
Company’s requiring that Grantee be based anywhere other than the Company’s
offices in the Telluride, Colorado area, except for required travel on Company
business to an extent substantially consistent with Grantee’s present business
travel obligations, or in the event that Grantee consents to any such
relocations, the failure by the Company to pay (or reimburse Grantee for)
all
reasonable moving expenses incurred by Grantee; or
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(v) the
failure by the Company to continue in full force and effect any benefit,
retirement, savings or compensation plan or any employee life, accident,
disability, medical, dental, vision or other employee welfare benefit plan
in
which Grantee is participating at the date hereof, the taking of any action
by
the Company which would adversely affect Grantee’s participation in or
materially reduce Grantee’s benefits under any of such plans or deprive Grantee
of any material fringe benefit or perquisite enjoyed by Grantee at the
date
hereof, or the failure by the Company to provide Grantee with the number
of paid
personal days to which Xxxxxxx is then entitled in accordance with the
policies
in effect on the date hereof.
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3.
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Stock;
Dividends; Voting
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3.1 Upon
delivery to the Company of the executed Stock Powers attached hereto, the
Company shall register on the Company books stock certificate(s) evidencing
the
shares of Restricted Stock in the name of the Grantee. Physical possession
or
custody of such stock certificate(s) shall be retained by the Company until
such
time as the shares of Restricted Stock are fully vested in accordance with
Section 2. While in its possession, the Company reserves the right to place
a
legend on the stock certificate(s) restricting the transferability of such
certificates and referring to the terms and conditions (including forfeiture)
of
this Agreement and the Plan. Upon forfeiture of all or a portion of the shares
of Restricted Stock, the stock certificate(s) held on behalf of the Grantee
shall be transferred to the Company pursuant to the executed Stock Power
described above.
3.2 During
the period the Restricted Stock is not vested, the Grantee shall be entitled
to
receive dividends and/or other distributions declared on such Restricted
Stock
and Grantee shall be entitled to vote such Restricted Stock.
3.3 In
the
event of a change in capitalization, the number and class of shares of
Restricted Stock or other securities that Grantee shall be entitled to, and
shall hold, pursuant to this Agreement shall be appropriately adjusted or
changed to reflect the change in capitalization, provided that any such
additional shares of Restricted Stock or additional or different shares or
securities shall remain subject to the restrictions in this Agreement. If
additional shares of common stock of the Company or another corporation,
or
other consideration is issued in connection with the Restricted Stock at
a time
at which the restrictions specified in this Agreement have not lapsed, the
Grantee shall execute and deliver to the Committee additional Stock Power(s)
of
Attorney with respect to any such shares of stock, deliver to the Committee
the
stock certificates representing such shares, and forward to the Committee
any
such other consideration. Such stock certificates and/or other consideration
shall be retained by the Company and shall be credited to the account of
the
Grantee and shall be distributed to the Grantee, subject to forfeiture and
the
other terms and conditions of this Agreement and the Plan, at the same time
as
the shares of Restricted Stock are to be distributed free of all
restrictions.
3.4 The
Grantee represents and warrants that Grantee is acquiring the Restricted
Stock
for investment purposes only, and not with a view to distribution thereof.
The
Grantee is aware that the Restricted Stock may not be registered under the
federal or any state securities laws and that, in addition to the other
restrictions on the Restricted Stock, the shares will not be able to be
transferred unless an exemption from registration is available. By making
this
award of Restricted Stock, the Company is not undertaking any obligation
to
register the Restricted Stock under any federal or state securities
laws.
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| 4. |
No
Right to Continued
Employment
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Nothing
in this Agreement or the Plan shall be interpreted or construed to confer
upon
the Grantee any right with respect to continuance of employment by the Company
or a subsidiary, nor shall this Agreement or the Plan interfere in any way
with
the right of the Company or a Subsidiary to terminate the Grantee’s employment
at any time, subject to Xxxxxxx’s rights under this Agreement.
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5.
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Taxes
and Withholding
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The
Grantee shall be responsible for all federal, state and local income taxes
payable with respect to this award of Restricted Stock and any employment
taxes
payable by Grantee as an employee. The Grantee shall have the right to make
such
elections under the Internal Revenue Code of 1986, as amended, as are available
in connection with this award of Restricted Stock, including a Section 83(b)
election. The Company and Grantee agree to report the value of the Restricted
Stock in a consistent manner for federal income tax purposes. The Company
shall
have the right to retain and withhold from any payment of Restricted Stock
the
amount of taxes required by any government to be withheld or otherwise deducted
and paid with respect to such payment. At its discretion, the Company may
require Grantee to reimburse the Company for any such taxes required to be
withheld and may withhold any distribution in whole or in part until the
Company
is so reimbursed. In lieu thereof, the Company shall have the right to withhold
from any other cash amounts due to Grantee an amount equal to such taxes
required to be withheld or withhold and cancel (in whole or in part) a number
of
shares of Restricted Stock having a market value not less than the amount
of
such taxes.
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6.
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Grantee
Bound By The Plan
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The
Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be
bound
by all the terms and provisions thereof.
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7.
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Modification
of Agreement
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This
Agreement may be modified, amended, suspended or terminated, and any terms
or
conditions may be waived, but only by a written instrument executed by the
parties hereto.
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8.
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Severability
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Should
any provision of this Agreement be held by a court of competent jurisdiction
to
be unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall not be affected by such holding and shall continue in full
force
in accordance with their terms.
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9.
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Governing
Law
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The
validity, interpretation, construction and performance of this Agreement
shall
be governed by the laws of the State of Colorado without giving effect to
the
conflicts of laws principles thereof.
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| 10. |
Successors
in Interest
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This
Agreement shall inure to the benefit of, and be binding upon, the Company
and
its successors and assigns, and upon any person acquiring, whether by merger,
consolidation, reorganization, purchase of stock or assets, or otherwise,
all or
substantially all of the Company’s assets and business. This Agreement shall
inure to the benefit of the Grantee’s legal representatives. All obligations
imposed upon the Grantee and all rights granted to the Company under this
Agreement shall be final, binding and conclusive upon the Grantee’s heirs,
executors, administrators and successors.
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11.
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Resolution
of Disputes
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Any
dispute or disagreement which may arise under, or as a result of, or in any
way
relate to the interpretation, construction or application of this Agreement
shall be determined by the Committee. Any determination made hereunder shall
be
final, binding and conclusive on the Grantee and the Company for all
purposes.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
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VAIL
BANKS, INC.
By:
/s/ Xxxx X.
Xxxx
Xxxx X. Xxxx, President
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GRANTEE:
/s/
Xxx
X.Xxxxx
Xxx
X. Xxxxx
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STOCK
POWER
FOR
VALUE
RECEIVED, the undersigned does hereby assign and transfer to
____________________________________ _______________________________ (_____)
shares of the common stock of Vail Banks, Inc. (the “Company”) registered on the
books of the Company in the name of the undersigned (whether a certificate
has
been issued or not), and does hereby irrevocably constitute and appoint
_________________________________ attorney to transfer said stock on the
books
of the Company, with full power of substitution in the premises.
DATED:
______________________
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/s/ Xxx X.
Xxxxx
Name: Xxx X.
Xxxxx
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