FINWISE BANCORP RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this “Agreement”),
made to be effective as of __________ (the “Effective Date”) among Finwise Bancorp, a bank holding company (the “Company”) and ___________ (the “Executive”). The Company and the Executive are hereafter sometimes individually referred to as a “party” and collectively as
the “parties”.
WHEREAS, the Executive is an employee of the Company or an affiliate of the Company;
WHEREAS, the parties hereto desire to enter into this Agreement to provide for the issuance and vesting of shares of stock in
the Company.
NOW THEREFORE, for and good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged the Company and the Executive agree as follows:
1. Issuance of Award. Pursuant to and subject to the terms of the Company’s 2019 Stock Option Plan (the “Plan”) and this Agreement, the Company hereby grants to the Executive, as of the Effective Date, an award of
_____________ restricted shares of Common Stock (the “Award”).
2. Incorporation of Plan. All terms, conditions and restrictions of the Plan are incorporated herein and made part hereof as if stated herein. If there is any conflict between the terms and conditions of the
Plan and this Agreement, the terms and conditions of the Plan, as interpreted by the Administrator, shall govern. Except as otherwise provided herein, all capitalized terms used herein shall have the meaning given to such terms in the Plan.
3. Vesting; Forfeiture.
3.1. Vesting. Subject to Section 3.2, a number of whole shares as close as possible to ⅓ of the Award will vest on each of the first three anniversaries of the Effective Date (each such date, a “Vesting Date”), provided that with respect to each Vesting Date, the Return on Average Assets (“ROAA”) for FinWise Bank (the “Bank”), a wholly-owned subsidiary of the Company, for the most recent annual period ended on or immediately prior to such Vesting Date that is also ended on the last day of the
most recent annual period for which the Federal Deposit Insurance Corporation (the “FDIC”) has published a national average ROAA is at least ___ times the national average
ROAA published by the FDIC for such annual period.
3.2. Forfeiture. If the Executive’s service with the Company or an affiliate of the Company terminates for any reason, whether by the employer or the Executive, prior to his becoming vested in all of the shares
of Common Stock comprising the Award, then any part of the Award in which the Executive is not vested at the time of such termination, shall be automatically forfeited and cancelled without any payment thereon and all dividends or other
distributions accrued with respect to such forfeited shares also shall be forfeited.
4. Rights as a Shareholder.
4.1. Reasonably promptly after the later to
occur of the Effective Date and the execution and delivery of this Agreement by the parties hereto, the Company shall either issue stock certificates, registered in the name of the Executive, evidencing the shares of the Award or shall make (or
cause to be made) an appropriate book entry reflecting the Executive’s ownership of such shares. The restricted shares, if certificated, shall bear a legend reflecting the restrictions and forfeiture provisions set forth in the Plan and thus
Agreement, and if held in uncertificated form, shall be subject to an appropriate electronic coding or stop order. Each such stock certificate shall be held in the custody of the Company until such shares vest.
4.2. The Executive shall not be deemed for
any purpose to be, or have rights as, a shareholder of the Company by virtue of the grant of the Award, except to the extent a stock certificate is issued therefor or an appropriate book entry is made reflecting the issuance thereof pursuant to
Section 4.1 hereof, and then only from the date such certificate is issued or such book entry is made. Following the issuance of such stock certificate or the making of such book entry, the Executive shall have all rights as a shareholder of common stock for all shares comprising the Award, whether or not such shares are vested, including all rights to dividends, subject to forfeiture of such dividends in the
event that the underlying shares are later forfeited, as well as the right to vote; provided, however, that the Executive acknowledges that unless he has made an election under Section 83(b) of the IRS Code, any amounts paid as dividends on
shares that have not vested may be treated as additional compensation to the Executive and the Executive hereby authorizes the Company to withhold any taxes or other amounts required to be withheld from such dividends.
4.3. Unless the Administrator otherwise
determines, any property received by the Executive with respect to a share of the Award as a result of any cash dividend, stock dividend, recapitalization, merger, consolidation, combination, exchange of shares, distribution or otherwise, (i)
will not vest until such share of the Award vests, (ii) may, in the sole discretion of the Administrator, be held in custody by the Company and (iii) shall be subject to the provisions of this Agreement, and to all other restrictions as apply to
the shares in respect of which such property was paid. The Company shall issue to the Executive a receipt evidencing the property held by it in respect of the Award. Any such property received by the Executive with respect to a share of the
Award shall be delivered to the Company in the event such share is forfeited. Any securities received by the Executive with respect to a restricted share of the Award as a result of any dividend, recapitalization, merger, consolidation,
combination, exchange of shares or otherwise shall bear a legend or be subject to an electronic coding or stop order, as set forth in Section 4.1 hereof.
5. Restrictions on Transfer of Awards. Prior to vesting, the Award may not be transferred without the prior written consent of the Company which consent may be withheld
in its discretion; provided, however, that the Award may be transferred for estate planning purposes to a trust or limited liability company controlled by the Executive. Any permitted transferee of the Award shall take such Award subject to
the terms of this Agreement. Any such permitted transferee must agree to be bound by this Agreement, and shall execute a joinder agreement, and must agree to such other waivers, limitations, and restrictions as the Company may reasonably
require. Any transfer of the Award which is not made in compliance with this Agreement shall be null and void and of no effect.
- 2 -
6. Tax Advice. The Executive acknowledges that none of the Employers or their agents,
employees or representatives have made any warranties or representations to the Executive with respect to the income tax consequences of the transactions contemplated by this Agreement, and the Executive is in no manner relying on the Company
or its agents, employees or representatives for an assessment of such tax consequences. The Executive should rely on the Executive’s own tax advisors for such advice.
7. Taxes. The Executive is solely responsible for any taxes, interest or penalties
with respect to the issuance, vesting or disposition of the Award. Prior to the vesting of any portion of the Award, the Executive must make arrangements satisfactory to the Company to pay or provide for any applicable federal, state and local
withholding obligations of the Company. The Executive may satisfy such tax withholding obligation relating to the vesting of the Award by tendering a cash payment or through such means as the Administrator may determine in its sole discretion.
The Company may withhold from amounts, if any, payable to the Executive any applicable withholding or employment taxes resulting from the issuance or vesting of the Award or any
dividends or distribution with respect to the Award.
8. Remedies. The Executive shall be liable to the Company for all costs and damages, including incidental and consequential damages, resulting from a disposition of the
Award which is in violation of the provisions of this Agreement. Without limiting the generality of the foregoing, the Executive agrees that the Company shall be entitled to obtain specific performance of the obligations of the Executive under
this Agreement and immediate injunctive relief in the event any action or proceeding is brought in equity to enforce the same. The Executive will not urge as a defense that there is an adequate remedy at law.
9. Notices. Any notice or communication required or permitted to be given to any party under this Agreement shall be in writing and shall be deemed to have been duly
given or made: (a) if delivered personally by courier or otherwise, then as of the date delivered or if delivery is refused, then as of the date presented; (b) if sent or mailed by reputable overnight courier service to the Company at its
principal office address and to the Executive at his address appearing in the current records of the Company, then as of the first business day after the date so sent; (c) if sent or mailed by certified U.S. Mail, return receipt requested, to
the Company at its principal office address and to the Executive at his address appearing in the current records of the Company, then as of the third business day after the date so mailed or (d) by email to the Company at [______] and to the
Executive at his email address appearing in the current records of the Company. The address or email address to which notices to a party shall be sent may be changed by such party from time to time by written notice to the other party.
10. Successors and Assigns. Subject to the limitations set forth in this Agreement, this Agreement shall be binding upon, and inure to the benefit of, the executors,
administrators, heirs, legal representatives, successors and assigns of the parties hereto, including, without limitation, any business entity that succeeds to the business of the Company. Subject to the restrictions on transfer herein set
forth, this Agreement shall be binding upon the Executive and his or her heirs, executors, administrators, successors and assigns.
- 3 -
11. Interpretation. The Executive hereby acknowledges that all decisions,
determinations and interpretations of the Administrator in respect of this Agreement and the Award shall be final and conclusive.
12. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party hereto upon any breach or default of any party under this Agreement,
shall impair any such right, power or remedy of such party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under
this Agreement, or any waiver on the part of any party or any provisions or conditions of this Agreement, must be in a writing signed by such party and shall be effective only to the extent specifically set forth in such writing.
13. Entire Agreement; Amendments and Waivers. This Agreement, [together with the Executive’s employment agreement, dated as of_______,] constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. This Agreement may not be amended except in an instrument in
writing signed on behalf of each of the parties hereto and approved by the Board. No amendment, supplement, modification or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby.
14. Non-solicitation.
14.1. In consideration of the Award, the
Executive agrees and covenants not to:
a. directly or
indirectly, solicit, hire, recruit, attempt to hire or recruit, or induce the termination of employment of any employee of the Company or its Affiliates for twelve months following the Executive’s termination of employment; or
b. or indirectly,
solicit, contact (including, but not limited to, e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with the current customers of the Company or any of its Affiliates for purposes of offering or
accepting goods or services similar to or competitive with those offered by the Company or any of its Affiliates for a period of twelve months following the Executive’s termination of employment.
14.2. In the event of a breach or threatened
breach of any of the covenants contained in Section 14.1, the Executive hereby consents and agrees that the Company shall be entitled to, in addition to other available remedies, a temporary or permanent injunction or other equitable relief
against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or
other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief.
- 4 -
15. Clawback. The Award or any portion thereof, whether or not vested, shall be subject to forfeiture as set forth in this Section 15, as determined by the Administrator
in its sole discretion. In the event that any portion of the Award is forfeited, any dividends or other distributions with respect to such shares also shall be forfeited. Upon notice by the Administrator, the Executive shall deliver to the
Company any applicable stock certificates and any dividends or other distributions received by the Executive relating to the forfeited Award or portion of the Award.
15.1. Financial Restatement. In the event of the restatement of the Company’s financial statements due to material noncompliance with financial reporting requirements under applicable securities laws, as required
by the Securities and Exchange Commission, any portion of the Award that would not have been granted to the Executive or which would not have vested, after giving effect to the restatement, will be subject to forfeiture.
15.2. Financial Loss or Reputational Damage. If the Company suffers extraordinary financial loss, reputational damage or similar adverse impact as a result of actions taken or decisions made by the Executive in
circumstances constituting illegal or intentionally wrongful conduct, gross negligence or seriously poor judgment, the entire Award will be subject to forfeiture.
15.3. Risk-Adjustment: Unvested shares of the Award will be subject to forfeiture if the Executive engaged in risk-taking that is determined by the Administrator to be outside the company’s risk parameters.
16. Invalidity. If for any reason one or more of the provisions contained in this Agreement or in any other instrument referred to herein, shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument.
17. Titles. The titles, captions or headings of the Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the
meaning or interpretation of this Agreement.
18. No Right to Employment. This Agreement shall NOT confer upon the Executive any right to continue as an employee of the Company or an affiliate. Further, nothing in this Agreement shall be construed to limit the discretion of the Company or any
affiliate to terminate the Executive’s employment at any time and for any reason.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, with regard to the conflict of laws principles
thereof.
20. Titles. The titles, captions or headings of the Sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the
meaning or interpretation of this Agreement.
- 5 -
21. Counterparts. This Agreement may be executed in any number of counterparts, any of
which may be executed and transmitted by facsimile, by email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, and each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument.
22. Executive Acknowledgment. The Executive hereby acknowledges (i) receipt of a copy of the Plan, (ii) that all decisions, determinations and interpretations of the Administrator
in respect of the Plan, this Agreement and the Award shall be final and conclusive and (iii) that any shares of Common Stock acquired pursuant to the Award are being acquired for the Employee’s own account and not with a view to distribution.
[Signature Page Follows]
- 6 -
IN WITNESS WHEREOF, the parties hereto have executed this Restricted Stock Agreement as of the day and year first above
written.
|
FINWISE BANCORP, a Utah corporation
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
The Executive hereby accepts and agrees to be bound by all of the terms and conditions of this Agreement.
|
|
|
|
[Name]
|
|
- 7 -
