FORM OF RESTRICTED STOCK AWARD AGREEMENT 1ST CENTURY BANCSHARES, INC. EQUITY INCENTIVE PLAN NOTICE OF GRANT AND RESTRICTED STOCK AGREEMENT
EXHIBIT
4.5
FORM
OF RESTRICTED STOCK AWARD
AGREEMENT
1ST
CENTURY
BANCSHARES, INC.
EQUITY
INCENTIVE PLAN
NOTICE
OF
GRANT
AND
RESTRICTED
STOCK
AGREEMENT
You
have
been granted the number of Shares of Restricted Stock of the Company set
forth
below (“Shares”), subject
to
the terms and conditions of the 1st
Century
Bancshares, Inc.’s Equity Incentive Plan (“Plan”), and
this
Notice of Grant and Restricted Stock Agreement (collectively, “Notice and
Agreement”). Unless otherwise defined, capitalized terms in
the Notice and Agreement shall have the same meanings set forth in the
Plan. Unless otherwise defined in the Notice and Agreement, terms
with initial capital letters shall have the meanings set forth in the
Plan.
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Participant:
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Home
Address:
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Soc.
Sec. No.:
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Number
of Shares of Restricted Stock Granted:
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Grant
Date:
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Period
of Restriction and Release of Shares from Company’s Return Right (see
Sections 2 and 3 of attached Agreement)
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During
the Period of Restriction, the Shares shall be subject to the Company’s
Return Right, which shall lapse as
follows:
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By
signing below, you accept this grant of Shares and you hereby represent that
you: (i) agree to the terms and conditions of this Notice and Agreement and
the
Plan; (ii) have reviewed the Plan and the Notice and Agreement in their
entirety, and have had an opportunity to obtain the advice of legal counsel
and/or your tax advisor with respect thereto; (iii) fully understand and
accept
all provisions hereof; (iv) agree to accept as binding, conclusive, and final
all of the Administrator’s decisions regarding, and all interpretations of, the
Plan and the Notice and Agreement; and (v) agree to notify the Company upon
any
change in your home address indicated above.
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AGREED
AND ACCEPTED:
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Signature:
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Print
Name:
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EXHIBIT
A
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR
VALUE
RECEIVED I, __________________________, hereby sell, assign and transfer
unto
_______________________________________(__________) shares of the Common
Stock
of 1st
Century
Bancshares, Inc. standing in my name of the books of said corporation
represented by Certificate No. ________ herewith and do hereby irrevocably
constitute and appoint _____________________________ to transfer the said
stock
on the books of the within named corporation with full power of substitution
in
the premises.
This
Stock Assignment may be used only in accordance with the Notice of Grant
and the
Restricted Stock Agreement between 1st
Century
Bancshares, Inc. and the undersigned dated_____________, 200_.
Dated:
_______________, 200__
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Signature:
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Print Name:
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INSTRUCTIONS:
Please
DO NOT fill in any
blanks other than the signature lines.
The
purpose of this assignment is to
enable the Company to exercise its Return Right as set forth in the Notice
and
Agreement, without requiring additional signatures on the part of the
Participant.
EXHIBIT
B
CONSENT
OF SPOUSE
I,
____________________, spouse of ___________________, have read and approve
the
foregoing Notice of Grant and Restricted Stock Agreement (the "Notice and
Agreement"). In consideration of the Company's grant to my spouse of the
shares
of 1st
Century
Bancshares, Inc. as set forth in the Notice and Agreement, I hereby appoint
my
spouse as my attorney-in-fact in respect to the exercise of any rights under
the
Notice and Agreement and agree to be bound by the provisions of the Notice
and
Agreement insofar as I may have any rights in said Notice and Agreement or
any
shares issued pursuant thereto under the community property laws or similar
laws
relating to marital property in effect in the state or country of our residence
as of the date of the signing of the foregoing Notice and
Agreement.
Dated:
_______________, 200 __
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Signature
of Spouse
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Print Name:
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EXHIBIT
C
ELECTION
UNDER SECTION 83(b)
OF
THE
U.S. INTERNAL REVENUE CODE OF 1986
The
undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended, to include in taxpayer's gross income for
the
current taxable year the amount of any compensation taxable to taxpayer in
connection with his or her receipt of the property described below:
1. The
name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
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Name:
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Spouse:
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Taxpayer I.D. No.:
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Address:
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Tax
Year:
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2. The
property with respect to which the election is made is described as follows:
__________________(________) shares of the Common Stock of 1st
Century
Bancshares, Inc. (the "Company").
3. The
date on which the property was transferred is ______________, 200_.
4. The
property is subject to the following restrictions:
The
Shares are subject to the Company’s Return Right as specified in the Notice of
Grant and Restricted Stock Agreement between me and the Company dated as
of
___________, 200_. This right lapses with regard to a portion of the Shares
based on the Participant’s Continued Status as an Employee,
Consultant or Director over time.
5. The
fair market value at the time of transfer, determined without regard to any
restriction other than a restriction which by its terms will never lapse,
of
such property
is: $______________________.
6. The
amount (if any) paid for such property is: ZERO.
The
undersigned has submitted a copy of this statement to the person for whom
the
services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said
property. The undersigned understands that the foregoing election may
not be revoked except with the consent of the Commissioner.
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Dated: ___________________,
200_
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Signature
of Taxpayer
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The
undersigned spouse of taxpayer joins in this election.
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Dated: ___________________,
200_
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Spouse
of Taxpayer
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RESTRICTED
STOCK AGREEMENT
1. Grant
of Restricted
Stock. The Company has granted to you the number of Shares of
Restricted Stock specified in the Notice of Grant on the preceding page (“Notice of Grant”),
subject to the following terms and conditions. In consideration of
such grant, you agree to be bound by such terms and conditions, and by the
terms
and conditions of the Plan.
2. Period
of
Restriction. During the Period of Restriction specified in the
Notice of Grant, the Shares shall remain subject to the Company’s Return Right
(defined in Section 3). The Period of Restriction shall expire and
the Company’s Return Right shall lapse as to the Shares granted in the amount(s)
and on the date(s) specified in the Notice of Grant (each, a “Release Date”);
provided, however, that no Shares shall be released on any Release Date if
the
Participant has ceased Continuous Status as an Employee, Consultant or Director
on or prior to such date. Any and all Shares subject to the Company’s
Return Right at any time shall be defined in this Notice and
Agreement as “Unreleased
Shares.”
3. Company’s
Return
Right. If Participant ceases Continuous Status as an Employee,
Consultant or Director for any reason (including death or Disability), or
in the
event of Participant’s Misconduct, the Company shall have the right to claim the
return of some or all of the Participant’s Unreleased Shares for a period of
sixty (60) days from the effective date of Participant’s termination or
Misconduct, as the case may be (“Return
Right”). If the Company elects to claim the return of any or
all of the Unreleased Shares, it shall deliver a written notice of such election
to the Participant (or the Participant's executor) within such 60-day period,
whereupon the Company shall become the legal and beneficial owner of the
Unreleased Shares and all rights and interests therein or relating thereto,
and
the Company shall have the right to retain and transfer such Unreleased Shares
to its own name. If the Company does not timely exercise its Return
Right as set forth above, the Participant shall continue to own the Shares
subject to the terms of the Plan and this Notice and Agreement until the
Shares
are released from the Company’s Return Right on the Release Date(s) specified in
the Notice of Grant.
4. Restriction
on
Transfer. Except for the transfer of the Shares to the Company or its
assignees contemplated by this Notice and Agreement, none of the Shares or
any
beneficial interest therein shall be transferred, encumbered or otherwise
disposed of in any way until such Shares are released from the Company's
Return
Right in accordance with this Notice and Agreement. In addition, as a condition
to any transfer of the Shares after expiration of the Company’s Return Right,
the Company may, in its discretion, require: (i) that the Shares shall have
been
duly listed upon any national securities exchange or automated quotation
system
on which the Company's Common Stock may then be listed or quoted; (ii) that
either (a) a registration statement under the Securities Act of 1933, as
amended
(“Securities
Act”) with respect to the Shares shall be effective, or (b) in the
opinion of counsel for the Company, the proposed purchase shall be exempt
from
registration under the Securities Act and the Participant shall have entered
into agreements with the Company as reasonably required; and (iii) fulfillment
of any other requirements deemed necessary by counsel for the Company to
comply
with Applicable Law.
5. Retention
of
Shares. To ensure the availability for delivery of the
Participant's Unreleased Shares upon their return to the Company pursuant
to the
Company’s Return Right, the Company shall retain possession of the share
certificates representing the Unreleased Shares, together with a stock
assignment duly endorsed in blank, attached hereto as Exhibit
A. The Company shall hold the Unreleased Shares and related
stock assignment until the Company's Return Right expires as to such Shares.
In
addition, the Company may require the spouse of Participant, if any, to execute
and deliver to the Company the Consent of Spouse in the form attached hereto
as
Exhibit
B. When the Return Right has been exercised or expires, the
Company shall promptly deliver the certificate to the Company or the
Participant, as the case may be.
6. Stockholder
Rights. Subject to the terms hereof, the Participant shall
have all the rights of a stockholder with respect to the Shares while they
are
retained by the Company pursuant to Section 5, including without limitation,
the
right to vote the Shares and to receive any cash dividends declared thereon.
If,
from time to time during the term of the Return Right, there is (i) any stock
dividend, stock split or other change in the Shares, or (ii) any merger or
sale
of all or substantially all of the assets or other acquisition of the Company,
any and all new, substituted or additional securities to which the Participant
shall be entitled by reason of the Participant's ownership of the Shares
shall
be immediately subject to the terms of this Notice and Agreement and included
thereafter as "Shares" for purposes of this Notice and Agreement and the
Company’s Return Right.
7. Legends. The
share certificate evidencing the Shares, if any, issued hereunder shall be
endorsed with the following legend (in addition to any legend required under
applicable state securities laws):
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THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS
UPON TRANSFER AND THE COMPANY’S RETURN RIGHT AS SET FORTH IN AN AGREEMENT
BETWEEN THE COMPANY AND THE HOLDER A COPY OF WHICH IS ON FILE
WITH THE
SECRETARY OF THE COMPANY.
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8. U.S.
Tax
Consequences. The Participant has reviewed with the
Participant's own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated by this
Notice
and Agreement. The Participant is relying solely on such advisors and
not on any statements or representations of the Company or any of its employees
or agents. The Participant understands that the Participant (and not the
Company) shall be responsible for the Participant's own tax liability that
may
arise as a result of the transactions contemplated by this Notice and Agreement.
The Participant understands that for U.S. taxpayers, Section 83 of the
Internal
Revenue Code of 1986, as amended (the "Code"), taxes
as
ordinary income the difference between the purchase price for the Shares
and the
fair market value of the Shares as of the date any restrictions on the
Shares
lapse. In this context, "restriction" includes the right of the Company
to claim
return of the Shares pursuant to the Company’s Return Right. The Participant
understands that if he/she is a U.S. taxpayer, the Participant may elect
to be
taxed at the time the Shares are acquired rather than when and as the Return
Right expires by filing an election under Section 83(b) of the Code with
the IRS
within 30 days from the date of acquisition. The form for making this election
is attached as Exhibit
C hereto.
THE
PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S SOLE RESPONSIBILITY
AND
NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), IF
APPLICABLE, EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES
TO MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
9. General.
(a)
This
Notice and Agreement shall be governed by and construed under the laws of
the
State of California. The Notice and Agreement and the Plan, which is
incorporated herein by reference, represents the entire agreement between
the
parties with respect to the Shares of Restricted Stock granted to the
Participant. In the event of a conflict between the terms and conditions
of the
Plan and the terms and conditions of this Notice and Agreement, the terms
and
conditions of the Plan shall prevail.
(b)
Any
notice, demand or request required or permitted to be delivered by either
the
Company or the Participant pursuant to the terms of this Notice and Agreement
shall be in writing and shall be deemed given when delivered personally,
deposited with an international courier service, or deposited in the U.S.
Mail,
First Class with postage prepaid, and addressed to the parties at the addresses
set forth in the Notice of Grant, or such other address as a party may request
by notifying the other in writing.
(c)
The
rights of the Company under this Notice and Agreement and the Plan shall
be
transferable to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of, and be enforceable by
the
Company's successors and assigns. The rights and obligations of the Participant
under this Notice and Agreement may only be assigned with the prior written
consent of the Company.
(d)
The
Participant agrees upon request to execute any further documents or instruments
necessary or desirable to carry out the purposes or intent of this Notice
and
Agreement.
(e)
PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE RELEASE OF SHARES PURSUANT TO
THIS
AGREEMENT SHALL BE EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE, CONSULTANT
OR DIRECTOR, AND NOT THROUGH THE ACT OF BEING HIRED, APPOINTED OR OBTAINING
SHARES HEREUNDER.
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