RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.36
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”) is made and entered into as of the of , 2009 (the “Effective Date”), by and among NewBridge Bancorp, a North Carolina corporation (the “Corporation”), NewBridge Bank, a North Carolina commercial bank (the “Bank”), and the award recipient whose signature appears below (the “Participant”).
WHEREAS, the Corporation is the holding company of the Bank, and the Bank is an Affiliate of the Corporation; and
WHEREAS, the NewBridge Bancorp Amended and Restated Comprehensive Equity Compensation Plan for Directors and Employees Plan has been approved by the Corporation’s Board of Directors and by its shareholders, and has been thereafter amended from time to time (the “Plan”); and
WHEREAS, Participant is an employee of the Bank, and the Boards of Directors of the Corporation and the Bank, and the Compensation Committee of those Boards (“Committee”), have determined that it is desirable and in the best interests of the Corporation and the Bank to make an award (the “Award”) to the Participant of rights to receive shares of the common stock of the Corporation (“Common Stock”) as permitted under the Plan, subject to certain restrictions as specified below; and
WHEREAS, the Corporation is a recipient of funds under the Capital Purchase Program initiated under the Emergency Economic Stabilization Act of 2008, as amended by the American Recovery and Reinvestment Act of 2009, and the rules of the United States Treasury promulgated thereunder (collectively, the “TARP Rules”); and
WHEREAS, the TARP Rules place certain limitations and restrictions upon the award of incentive compensation to senior executive officers of the Corporation and the Bank generally, and upon the award of restricted stock specifically; and
WHEREAS, capitalized terms not otherwise defined herein shall have the same meaning given to such terms in the Plan.
NOW, THEREFORE, the Parties agree as follows:
Section 1. Date of Award. The date of making the Award under this Agreement is the Effective Date.
Section 2. Award of Restricted Stock Units. Each conditional right to a share of Common Stock awarded hereby shall be referred to as a restricted stock unit (“Restricted Stock Unit”). The Participant is awarded that number of Restricted Stock Units set forth on Annex A attached hereto. Each Restricted Stock Unit entitles the Participant, upon satisfying the vesting requirements set forth in Annex A attached hereto and the Plan, to receive one (1) share of Common Stock at no purchase price per share, subject to any restrictions on transfer set forth in Annex B attached hereto. The Restricted Stock Units shall be delivered following vesting in the form of shares of Common Stock ( “Plan Shares”).
Section 3. Representations, Warranties and Transfer Restrictions.
(a) Representations and Warranties. The Participant makes and agrees to the representations and warranties set forth in Annex C attached hereto.
(b) Restrictions. The Committee may cause a legend to be placed on any certificate representing any of the Plan Shares to make appropriate reference to transfer restrictions established by the Committee or may cause such restrictions to be recorded on the book entry in the Corporation’s share registry with respect to such Plan Shares if issued in
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uncertificated form. Additionally, the Participant agrees that the Plan Shares shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the TARP Rules, the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange or interdealer quotation system upon which the Common Stock is then listed or quoted and any other applicable federal or state securities laws, rules or regulations, and the Committee may cause a legend or legends to be placed on any certificate representing any of the Plan Shares to make appropriate reference to such restrictions or may cause restrictions to be recorded on the book entry in the Corporation’s stock registry with respect to such Plan Shares if issued in uncertificated form.
(c) Other Transfer Restrictions. No Restricted Stock Unit granted hereunder may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of by the Participant.
Section 4. Forfeiture. If the Participant’s employment by the Bank terminates during the vesting period applicable to a Restricted Stock Unit as specified on Annex A (a “Vesting Period”), the Participate shall forfeit such Restricted Stock Unit and this Agreement shall be null and void.
Section 5. Vesting of Restricted Stock Units and Delivery of Plan Shares.
(a) Vesting. Each Restricted Stock Unit shall vest and become nonforfeitable as provided in Annex A. The Participant must be employed by the Bank or an Affiliate thereof at all times during, and through the final day of, the applicable Vesting Period of such Restricted Stock Unit.
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(b) Delivery of Plan Shares to the Participant. After the date on which a Restricted Stock Unit has become vested as provided in this Agreement and in the Plan, the Committee shall instruct the Corporation to cause to be issued to the Participant all Plan Shares derived from all such vested Restricted Stock Units, free from any restrictions other than such restrictions as may be imposed pursuant to Section 3. The delivery of the Plan Shares shall be accomplished on or before the 30th day following the expiration of the applicable Vesting Period and shall be in uncertificated form effected through appropriate notation and book entry recordation in the Corporation’s stock registry unless, in its discretion, the Committee elects to cause such Plan Shares to be issued in certificated form.
(c) Plan Shares Relating To Forfeited Restricted Stock Units. If any Restricted Stock Unit is forfeited pursuant to this Agreement and the Plan, the Plan Share relating to the forfeited Restricted Stock Unit shall thereafter be available for award as provided in the Plan and shall cease to be subject to this Agreement.
Section 6. Rights of Holders of Restricted Stock Units.
(a) No Shareholder Rights. As a holder of Restricted Stock Units, the Participant shall have no rights as a shareholder of the Corporation. Until vested, Restricted Stock Units represent an unfunded, unsecured and contingent obligation of the Corporation to issue the applicable Plan Shares.
Section 7. Effect of Award on Status of Participant. The Award made to the Participant under this Agreement does not confer on the Participant any right to continued employment with the Bank, the Corporation or any subsidiary of either.
Section 8. Impact of Award on Other Benefits of Participant. Neither the contingent value of the Restricted Stock Units at any time before they become vested nor the value of any Plan Shares issued to the Participant under this Agreement shall be includable as compensation or earnings for purposes of any other benefit plan offered by the Bank, the Corporation or any subsidiary of either, except to the extent of any qualified employee benefit plan which specifically provides that any such value shall be included as compensation or earnings for purposes of such plan.
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Section 9. Taxes and Tax Withholding. Upon the vesting of the Restricted Stock Units and the distribution of the applicable Plan Shares to the Participant, at the election of the Corporation, the Participant shall either (a) sell to the Corporation a number of the Plan Shares that would otherwise be distributed to the Participant as would have a fair market value equal to the then existing minimum withholding requirement for all federal, state and local income, excise and employment taxes payable by the Corporation or the Bank on account of such vesting and distribution (the “Tax Amount”) or (b) pay the Tax Amount in cash to the Bank.
Section 10. Adjustments. In the event of any change (such as a reorganization, merger or other change) in the character of the Common Stock or the issuance of shares of Common Stock by the Corporation pursuant to a stock split, stock dividend, recapitalization or other transaction pursuant to which the Corporation issues additional shares of Common Stock to, or reduces the number of shares of Common Stock held by, its shareholders, then the number of Plan Shares issuable upon the vesting of a Restricted Stock Unit shall be the same as if the Participant had held the number of Plan Shares acquirable under such Restricted Stock Unit prior to such change or issuance and had participated therein on the same basis of other shareholders of Common Stock. By way of clarification and not limitation, it is not intended that a merger, share exchange or other transaction through which the Corporation or the Bank acquires another entity or the assets of another entity through the use of Common Stock as consideration, a Common Stock offering by the Corporation, or the issuance of Common Stock by the Corporation through a dividend reinvestment or stock purchase plan shall be deemed to require any such adjustment.
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Section 11. Notices. Any notices or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given if (a) hand delivered, (b) if deposited in the United States mail by certified mail, return receipt requested, properly addressed and postage prepaid, or (c) sent next day delivery by a nationally recognized overnight courier service, all charges prepaid, if to the Corporation, the Bank or the Committee at NewBridge Bancorp, 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: President and Chief Executive Officer; and, if to the Participant, at his or her last address appearing on the employment records of the Bank. The Corporation, the Bank and the Participant may change its, his or her address herein by giving written notice of such change as provided herein. Any notice or other communication hereunder shall be deemed to have been given: (i) if hand delivered, on the date of such delivery; (ii) if sent by United States certified mail, on the third (3rd) business day following the date deposited with the United States Postal Service, or (iii) if sent by overnight courier, on the next business day following the date of timely delivery to such courier.
Section 12. Construction Controlled by Plan. The Plan, a copy of which is attached hereto as Annex D, is incorporated herein by reference. This Award of Restricted Stock Units shall be subject to the terms and conditions of the Plan, and the Participant hereby assumes and agrees to comply with all of the obligations imposed upon the Participant in the Plan. This Agreement shall be construed so as to be consistent with the Plan. The provisions of the Plan shall be deemed to be controlling in the event that any provision hereof should appear to be inconsistent therewith except to the extent the provision hereof is required under the TARP Rules.
Section 13. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid and enforceable under applicable law, but if any
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provision of this Agreement is determined to be unenforceable, invalid or illegal, the validity of any other provision or part thereof shall not be affected thereby and this Agreement shall continue to be binding on the parties hereto as if such unenforceable, invalid or illegal provision or part thereof had not been included herein.
Section 14. Governing Law. Without regard to the principles of conflicts of laws, the laws of the State of North Carolina shall govern and control the validity, interpretation, performance, and enforcement of this Agreement.
Section 15. Modification of Agreement; Waiver. Except as otherwise provided in Sections 11 and 21, this Agreement may be modified, amended, suspended or terminated, and any terms, representations or conditions may be waived, only by a written instrument signed by each of the parties hereto or their successors in interest; provided, however, that to the extent that Section 409A of the Internal Revenue Code, including guidance and regulations issued thereunder (“Section 409A”) applies to any portion of this Agreement or any Award issued hereunder, no amendment, suspension or termination shall be effectuated unless it complies with the requirements of Section 409A. The failure of the Participant or the Corporation and the Bank to insist upon strict compliance with any provision of this Agreement or to assert any right he or she or the Corporation and the Bank may have under this Agreement shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.
Section 16. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, legatees, personal representatives, executors, administrators, successors and assigns.
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Section 17. Miscellaneous. Any dispute, controversy or claim between the parties hereto arising out of or relating to this Agreement shall be settled by arbitration conducted in the City of Greensboro, North Carolina, in accordance with the Commercial Rules of the American Arbitration Association then in force and North Carolina law. The arbitration decision or award shall be final and binding upon the parties. The arbitration shall be in writing and shall set forth the basis therefor. The parties hereto shall abide by all awards rendered in such arbitration proceedings, and all such awards may be enforced and executed upon in any court having jurisdiction over the party against whom enforcement of such award is sought. Each party shall bear its own costs with respect to such arbitration, including reasonable attorneys’ fees; provided, however, that: (i) the fees of the American Arbitration Association shall be borne equally by the parties; and (ii) if the arbitration is resolved wholly in the Participant’s favor, his or her costs of arbitration (including his or her reasonable attorneys’ fees) shall be paid by the Corporation.
Section 18. Entire Agreement. This Agreement (and Annexes) and the Plan constitute and embody the entire understanding and agreement of the parties hereto and, except as otherwise provided hereunder, there are no other agreements or understandings, written or oral, in effect between the parties hereto relating to the matters addressed herein.
Section 19. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
Section 20. Further Assurances. The parties agree to execute any further instrument and to take such action as may be reasonable necessary to carry out the intent of this Agreement.
Section 21. Section 409A Exemption. It is intended that the Plan, this Agreement, the Restricted Stock Units and the Plan Shares issued hereunder fall within the short-term deferral exemption provided by Section 409A such that the Restricted Stock Units and Plan Shares fall
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outside the scope of Section 409A and are not required to comply with the Section 409A requirements. The Plan, this Agreement, the Restricted Stock Units and the Plan Shares will be administered and interpreted in a manner consistent with the intent set forth in this Section 21. The Corporation and the Bank reserve the right to amend the Plan and/or this Agreement, without the Participant’s consent, to the extent the Committee reasonably determines from time to time that such amendment is necessary in order to achieve the purposes of this Section. Notwithstanding the foregoing, neither the Corporation nor the Bank make any representations or warranties as to the treatment of the Restricted Stock Units or the Plan Shares, or any settlement thereof, under Section 409A.
[SIGNATURES ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, each of the Corporation and the Bank have caused this Agreement to be executed in its corporate name by its President, or one of its Executive Vice Presidents, and attested by its Secretary or one of its Assistant Secretaries, all by authority of its Board of Directors first duly given, and the Participant has executed this Agreement, in each case as of the day and year first above written.
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| ATTEST: | ||||
| By: | ||||
| Secretary | ||||
| NEWBRIDGE BANK | ||||
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| ATTEST: | ||||
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| Secretary | ||||
| [Corporate Seal] | ||||
| PARTICIPANT | ||||
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(SEAL) | ||||
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ANNEX A
NUMBER OF RESTRICTED STOCK UNITS; VESTING
1. Number.
The Participant is awarded ( ) Restricted Stock Units.
2. Defined Terms:
| (i) | “Committee” shall mean the Compensation Committee of the Boards of Directors of the Corporation and the Bank. |
| (ii) | “TARP Vesting Date” means the date(s) under the TARP Rules when the award of Restricted Stock Units herein made (or portions thereof) may “fully vest” (as such term is deemed to be interpreted by the United States Treasury or other applicable governmental body). |
| (iii) | “Time Vesting Period” means the twenty-four (24) month period ending on the second anniversary of the Effective Date. |
| (iv) | “Vesting Period” means the Time Vesting Period. |
3. Time Vesting. Subject to Section 4 below, all of the Restricted Stock Units shall vest, if at all, as of the expiration of the Time Vesting Period; provided, however, that Participant must remain employed by the Bank or an Affiliate thereof throughout the Time Vesting Period.
4. Full Vesting. Notwithstanding any other provision of the Agreement or this Annex A, no Restricted Stock Unit awarded herein shall “fully vest” in the Participant until the TARP Vesting Date. The Participant must remain employed by the Bank through each TARP Vesting Date for previously unvested Restricted Stock Units to “fully vest”. Notwithstanding the foregoing, the Committee may declare a portion of the award of Restricted Stock Units made herein to be “fully vested” under the TARP Rules for the purposes of allowing Participant to transfer Restricted Stock Units to meet federal income tax liabilities arising from the award, as permitted by the TARP Rules.
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ANNEX B
RESTRICTIONS
As set forth in the Restricted Stock Award Agreement.
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ANNEX C
REPRESENTATIONS AND WARRANTIES
Participant represents to the Corporation that:
(a) Participant has received a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof, and hereby acknowledges that the Restricted Stock Units, and all Plan Shares issuable therefrom, are subject to all of the terms and provisions of the Plan. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan or this Agreement.
(b) Participant has received a copy of the Prospectus relating to the Plan.
(c) Participant represents that the awarding of Restricted Stock Units to, and the receipt of the Plan Shares by, Participant will not result in the violation by Participant of any law, statute, rule, regulation, order, writ, injunction, judgment or decree of any court or governmental authority to or by which Participant is bound, including, without limitation, United States laws and other laws that may be applicable to Participant and will not conflict with, or result in a material breach or violation of, any of the terms or provisions of, or constitute (with due notice or lapse of time or both) a material default under, any material lease, loan agreement, mortgage, security agreement, domestic relations, trust indenture or other agreement or instrument to which Participant is a party or by which Participant is bound or to which Participant’s material properties or assets is subject, nor result in the creation or imposition of any lien upon any of the material properties or assets of Participant.
(d) Participant acknowledges and agrees that this Agreement is not a contract of employment and that nothing in this Agreement shall confer upon Participant any right with respect to continuation of service to or employment by the Corporation, the Bank or any Affiliate thereof.
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(e) Participant acknowledges and agrees that the vesting of Restricted Stock Units and issuance of Plan Shares pursuant to this Agreement is earned only through Participant’s continued employment with the Bank or an Affiliate thereof throughout all Vesting Periods and not through the grant of the Restricted Stock Units hereunder.
(f) Participant warrants that he or she will hold the Corporation, the Bank, their Affiliates and their respective directors, officers, agents and controlling persons and their respective heirs, representatives, successors and assigns harmless, and will indemnify them from and against all liabilities, costs and expenses incurred by them as a result of any misrepresentation made by Participant contained herein.
(g) Participant hereby accepts this Agreement subject to all of the terms and provisions hereof. Participant has reviewed this Agreement in its entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement, and fully understands all provisions of the Agreement.
(h) Participant acknowledges that the Corporation and the Bank are entitled to rely on the representations made above.
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