UNITED COMMUNITY BANKS, INC. AMENDED AND RESTATED 2000 KEY EMPLOYEE STOCK OPTION PLAN RESTRICTED STOCK UNIT AWARD AGREEMENT (Executive Officer)
EXHIBIT
10.4
UNITED COMMUNITY BANKS, INC.
AMENDED AND RESTATED
2000 KEY EMPLOYEE STOCK OPTION PLAN
AMENDED AND RESTATED
2000 KEY EMPLOYEE STOCK OPTION PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
(Executive Officer)
(Executive Officer)
Grantee:
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Number of RSUs:
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RSUs | |
Date of Grant:
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Vesting Schedule:
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Per attached Statement referred to herein as “Exhibit A” |
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Territory: |
THIS AGREEMENT (the “Agreement”) is entered into as of the ___ day of
__________________, ____________, by and between UNITED COMMUNITY BANKS, INC., a Georgia corporation (the
“Company”), and the individual designated above (the “Grantee”).
WHEREAS, the Company maintains the United Community Banks, Inc. Amended and Restated 2000 Key
Employee Stock Option Plan (the “Plan”), and the Grantee has been selected by the Committee to
receive a Restricted Stock Unit Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Grantee, as follows:
1. Award of Restricted Stock Units
1.1 The Company hereby grants to the Grantee an award of Restricted Stock Units (“RSUs”) in
the amount set forth above, subject to, and in accordance with, the restrictions, terms, and
conditions set forth in this Agreement and the Plan. The grant date of this award of RSUs is set
forth above(the “Date of Grant”).
1.2 This Agreement (including any appendices) 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.
1.3 This Award is conditioned on the Grantee’s execution of this Agreement. If this Agreement
is not executed by the Grantee and returned to the Company within two days of the Date of Grant, it
may be canceled by the Committee resulting in the immediate forfeiture of all RSUs.
2. Vesting and Termination of Employment
2.1 Vesting. Subject to Sections 2.2 through 2.4 below and Section 8, if the Grantee
remains employed by the Company, the RSUs shall vest as provided for in Exhibit B. Each date on
which the RSUs vest is hereinafter referred to as a “Vesting Date”.
Except as otherwise provided below, on the Vesting Date, a number of Shares equal to the
number of vested RSUs shall be issued to the Grantee free and clear of all restrictions imposed by
this Agreement (except those imposed by Section 3.3 below). The Company shall transfer such Shares
to an unrestricted account in the name of the Grantee as soon as practical after the Vesting Date.
For purposes of this Agreement, employment with a Subsidiary of the Company or service as a member
of the Board of Directors of the Company or a Subsidiary shall be considered employment with the
Company.
2.2 Termination for Cause. If the Grantee’s employment is terminated by the Company
for Cause (as defined in the Plan), the unvested RSUs shall be forfeited immediately as of the date
of termination of employment.
2.3 Termination of Employment Without Cause or For Good Reason.
(1) If the Grantee’s employment with the Company is terminated involuntarily by the Company
without Cause (as defined in the Plan) or is terminated by the Grantee for Good Reason (as defined
in subsection (2) below), the unvested RSUs shall continue to vest in accordance with the original
vesting schedule set forth in Exhibit A (just as if the Grantee had remained employed). In the
event of the Grantee’s death after a termination covered by this Section 2.3, the unvested RSUs
shall continue to vest as if the Grantee had lived and upon vesting, a number of Shares equal to
the number of vested RSUs shall be transferred to the Grantee’s surviving spouse or, if none, to
his estate.
(2) For purposes of this Agreement, the Optionee shall be entitled to terminate his or her
employment with the Company for Good Reason in the event of, without the Grantee’s express written
consent, any one of the following acts by the Company, or failures by the Company to act, unless,
in the case of any act or failure to act described in paragraphs (i), (iii), or (iv) below, such
act or failure to act is corrected prior to the Grantee’s date of termination:
(i) a material reduction in the Grantee’s responsibilities at the Company; or
(ii) the required relocation of the Grantee’s employment to a location outside
of the market area of the Company; or
(iii) a material reduction in the levels of coverage of the Grantee under the
Company’s director and officer liability insurance policy or indemnification
commitments; or
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(iv) a substantial reduction in the Grantee’s base salary, a material reduction
in his incentive compensation or the taking of any action by the Company which
would, directly or indirectly, materially reduce any of the benefits provided to the
Grantee under any of the Company’s pension, 401(k), deferred compensation, life
insurance, medical, accident or disability plans in which the Grantee is
participating.
The Grantee’s right to terminate employment for Good Reason shall not be affected by the
Grantee’s incapacity due to physical or mental illness, except for a Disability as defined in the
Plan. The Grantee’s continued employment shall not constitute consent to, or a waiver of rights
with respect to, any act or failure to act constituting Good Reason hereunder.
2.4 Termination of Employment Due to Retirement from the Company. If the Grantee’s
employment with the Company is terminated due to Retirement (as defined in the Plan), the unvested
RSUs shall continue to vest in accordance with the vesting schedule set forth in Exhibit A (just as
if the Grantee had remained employed). In the event of the Grantee’s death after Retirement, the
unvested RSUs shall continue to vest as if the Grantee had lived and upon vesting, a number of
Shares equal to the number of vested RSUs shall be transferred to the Grantee’s surviving spouse
or, if none, to his estate.
2.5 Termination of Employment Due to Death. If the Grantee’s employment is terminated
by the Company as a result of death, the unvested RSUs shall immediately vest, and a number of
Shares equal to the number of vested RSUs shall be transferred to the Grantee’s surviving spouse
or, if none, to his estate.
2.6 Termination of Employment for Other Reasons. If the Grantee’s employment is
terminated by the Company as a result of Disability, or the Grantee voluntarily terminates his or
her employment (except for Good Reason or upon Retirement), the outstanding unvested RSUs shall
immediately be forfeited as of the date of termination of employment.
2.7 Nontransferability. The RSUs may not be sold, assigned, transferred, pledged, or
otherwise encumbered prior to the date the Grantee becomes vested in the RSUs.
3. Change in Capitalization; Deferral Rights
3.1 During the period the RSUs are not vested, the Grantee shall be credited with dividend
equivalents or similar distributions declared on such RSUs in the manner determined by the
Committee.
3.2 In the event of a change in capitalization, the Committee shall make appropriate
adjustments in accordance with Section 4.3 of the Plan to reflect the change in capitalization,
provided that any such additional Shares or additional or different shares or securities reflected
in any such adjustment shall remain subject to the restrictions in this Agreement.
3.3 The Grantee represents and warrants that he is acquiring the Shares under this Agreement
for investment purposes only, and not with a view to distribution thereof. The
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Grantee is aware
that the Shares may not be registered under the federal or any state securities laws and that in
that event, in addition to the other restrictions on the Shares, they will not be able to be
transferred unless an exemption from registration is available or the Shares are registered. By
making this award of RSUs, the Company is not undertaking any obligation to register the RSUs under
any federal or state securities laws.
3.4 To the extent the Grantee is eligible to participate in a deferred compensation plan
established for such purpose, the Grantee may elect to defer delivery of the Shares that would
otherwise be due by virtue of the lapse or waiver of the vesting requirements as set forth in
Section 2. If such deferral election is made, the Committee shall, in its sole discretion,
establish the rules and procedures for such deferrals.
4. No Right to Continued Employment
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.
5. Taxes and Withholding
The Grantee shall be responsible for all federal, state, and local income taxes payable with
respect to this award of RSUs and any dividends paid on unvested RSUs. The Company and the Grantee
agree to report the value of the RSUs in a consistent manner for federal income tax purposes. The
Company shall have the right to retain and withhold from any payment of Shares or cash 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 the 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 the Grantee an amount equal to such taxes required to be withheld or
withhold and cancel (in whole or in part) a number of Shares having a market value not less than
the amount of such taxes.
6. The Grantee Bound By The Plan
The Grantee hereby acknowledges receipt of a copy of the Plan and the prospectus for the Plan,
and agrees to be bound by all the terms and provisions thereof.
7. Modification of Agreement; Severability
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. 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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8. Cancellation and Rescission of Award; Return of Shares
8.1 If, during his employment with the Company or at any time during the one (1) year after the Date of Termination, the Grantee violates the restrictive
covenants set forth in Section 8.2 below, then the Committee shall, notwithstanding any other
provision in this Agreement to the contrary, (i) cancel the outstanding RSUs that are not yet
vested or with respect to which Shares have not yet been issued to the Grantee, and (ii) require
the Grantee to return to the Company any Shares issued to the Grantee pursuant to vesting of the
RSUs during the period six (6) months prior to and on (1) year after
the Date of Termination, and require the Grantee to pay to the Company the then current value of any Shares issued to
the Grantee pursuant to the RSUs during such period.
8.2 The Grantee will not directly or indirectly, individually, or on behalf of any Person
other than the Company or a Subsidiary:
(i) solicit any Customers for the purpose of providing services identical to or
reasonably substitutable for the Company’s Business;
(ii) solicit or induce, or in any manner attempt to solicit or induce, any Person
employed by the Company to leave such employment, whether or not such employment is pursuant
to a written contract with the Company or any Subsidiary or is at will;
(iii) engage in the Company’s Business within the Territory or accept employment or
engagement within the Territory as a director, officer, executive, manager, or business
consultant for any Person engaging in the Company’s Business; or
(iv) knowingly or intentionally damage or destroy the goodwill and esteem of the
Company, any Subsidiary, the Company’s Business or the Company’s or any Subsidiary’s
suppliers, employees, patrons, customers, and others who may at any time have or have had
relations with the Company or any Subsidiary.
The Grantee further agrees that he or she will not, except as necessary to carry out his duties as
an employee of the Company, disclose or use Confidential Information. The Grantee further agrees
that, upon termination or expiration of employment with the Company for any reason whatsoever or at
any time, the Grantee will upon request by the Company deliver promptly to the Company all
materials (including electronically-stored materials), documents, plans, records, notes, or other
papers, and any copies in the Grantee’s possession or control, relating in any way to the Company’s
Business, which at all times shall be the property of the Company.
8.3 For purposes of this Section 8, the following terms shall have the meanings specified
below:
(i) “Company’s Business” means the business of operating a commercial or retail bank,
savings association, mutual thrift, credit union, trust, or other business or financial
services organization or entity.
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(ii) “Confidential Information” means information, without regard to form, relating to
the Company’s or any Subsidiary’s customers, operation, finances, and business that derives
economic value, actual or potential, from not being generally known to other Persons,
including, but not limited to, technical or non-technical data (including personnel data),
formulas, patterns, compilations (including compilations of customer information), programs,
devices, methods, techniques, processes, financial data or lists of actual or potential
customers (including identifying information about customers), whether or not in writing.
Confidential Information includes information disclosed to the Company or any Subsidiary by
third parties that the Company or any Subsidiary is obligated to maintain as confidential.
Confidential Information subject to this Agreement may include information that is not a
trade secret under applicable law, but information not constituting a trade secret only
shall be treated as Confidential Information under this Agreement for a two (2) year period
after the Date of Termination.
(iii) “Customers” means all Persons that (1) the Grantee serviced or solicited on
behalf of the Company or any Subsidiary, (2) whose dealings with the Company or any
Subsidiary were coordinated or supervised, in whole or in part, by the Grantee, or (3) about
whom the Grantee obtained Confidential Information, in each case during the term of this
Agreement or while otherwise employed by the Company.
(iv) “Date of Termination” means the date upon which the Grantee’s employment with the
Company ceases for any reason.
(v) “Person” means any individual, corporation, bank, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or other entity.
9. Governing Law
The validity, interpretation, construction, and performance of this Agreement shall be
governed by the laws of the state of Georgia without giving effect to the conflicts of laws
principles thereof.
10. Successors in Interest
This Agreement shall inure to the benefit of, and be binding upon, the Company and its
successors and assigns, whether by merger, consolidation, reorganization, sale of assets, or
otherwise. 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.
11. Entire Agreement
This Agreement and the Plan contain the entire agreement and understanding of the parties hereto
with respect to the subject matter contained herein and supersede all prior communications,
representations and negotiations in respect thereto.
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12. Resolution of Disputes
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 and the Plan shall be determined
by the Committee. Any determination made hereunder shall be final, binding, and conclusive on the
Grantee and the Company and their successors, assigns, heirs, executors, administrators and legal
representatives for all purposes.
13. Pronouns; Including
Wherever appropriate in this Agreement, personal pronouns shall be deemed to include the other
genders and the singular to include the plural. Wherever used in this Agreement, the term
“including” means “including, without limitation.”
[EXECUTION PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| UNITED COMMUNITY BANKS, INC. |
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| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
By signing below, the Grantee hereby accepts the RSU grant subject to all its terms and
provisions and agrees to be bound by the terms and provisions of this Agreement and the Plan. The
Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations
of the Board of Directors of the Company, or the Compensation Committee or other Committee
responsible for the administration of the Plan, upon any questions arising under the Plan.
| GRANTEE |
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| By: | /s/ | |||
| Name: | ||||
[EXHIBITS FOLLOW]
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