RESTRICTED STOCK AWARD AGREEMENT under the UNITED WESTERN BANCORP 2007 EQUITY INCENTIVE PLAN
Exhibit
99.3
Restricted
Stock Agreement—Officers
under
the
UNITED
WESTERN BANCORP 2007 EQUITY INCENTIVE PLAN
This
Agreement, effective as of March 19, 2007 (“Effective Date”), is between United
Western Bancorp, Inc., a Colorado corporation (“Company”) and the undersigned
participant (“Participant”) who is an officer of Company or its principal
subsidiary, United Western Bank (“Bank”).
WHEREAS,
Company’s Board of Directors (the “Board”) has adopted the 2007 Equity Incentive
Plan of United Western Bancorp (the “Plan”) and the Plan was approved by the
Company’s shareholders at the May 17, 2007 annual meeting of shareholders; and
WHEREAS,
a copy of the Plan has been delivered to Participant contemporaneously herewith,
and all terms defined in the Plan will have the same meanings in this Agreement
unless otherwise defined herein;
WHEREAS,
the Plan provides for the granting of restricted stock awards to eligible
participants as determined by the Compensation Committee of the Board (the
“Committee”); and
WHEREAS,
the Committee has determined that Participant is a person eligible to receive
a
restricted stock award under the Plan and has determined that it would be in
the
best interest of Company to grant the restricted stock award provided for herein
(the “Award”); and
WHEREAS,
Participant is willing to agree to certain restrictions on Participant’s
post-employment activities as partial consideration for the Award;
NOW,
THEREFORE, in
consideration of Participant’s service to Company and the mutual promises made
herein and the mutual benefits derived therefrom, the parties agree as
follows:
1. Summary
of Terms.
The
following is a summary of the terms of the Award:
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Name
of Participant:
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«First_Name» «Last_Name»
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Number
of Shares:
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«Shares»
shares of Company’s Common Stock (“Common Stock”), vesting in tranches as
set forth below (the “Award Shares”).
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Issuance
of Shares:
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The
Award Shares shall be issued on the Issue Date (as defined below).
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Vesting
Schedule:
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(a)
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Twenty
percent (20%) of the Award Shares (the “Tranche 1 Award Shares”)
shall become vested in full on May 19, 2008 (the “First Anniversary”) so
long as Participant is continuously employed by Company or Bank
from the
Effective Date until the First
Anniversary.
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(b)
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An
additional twenty percent (20%) of the Award Shares (the “Tranche 2
Award Shares”) shall become vested in full on the second anniversary of
the Effective Date (the “Second Anniversary”) so long as Participant is
continuously employed by Company or Bank from the Effective Date
until the
Second Anniversary.
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(c)
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An
additional twenty percent (20%) of the Award Shares (the “Tranche 3
Award Shares”) shall become vested in full on the third anniversary of the
Effective Date (the “Third Anniversary”) so long as Participant is
continuously employed by Company or Bank from the Effective Date
until the
Third Anniversary.
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(d)
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An
additional twenty percent (20%) of the Award Shares (the “Tranche 4
Award Shares”) shall become vested in full on the fourth anniversary of
the Effective Date (the “Fourth Anniversary”) so long as Participant is
continuously employed by Company or Bank from the Effective Date
until the
Fourth Anniversary.
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(e)
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The
final twenty percent (20%) of the Award Shares (the “Tranche 5 Award
Shares”) shall become vested in full on the fifth anniversary of the
Effective Date (the “Fifth Anniversary”) so long as Participant is
continuously employed by Company or Bank from the Effective Date
until the
Fifth Anniversary.
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(f)
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Notwithstanding
the foregoing and without regard to any of the time frames contemplated
above, immediately prior to a Change in Control, all unvested Award
Shares
will become fully vested. For purposes hereof, “Change in Control” means
(i) a merger or consolidation in which Company is not the surviving
Company (other than a merger with a wholly owned subsidiary of
Company),
(ii) a sale of all or substantially all of the business or assets
of
Company, (iii) a liquidation or dissolution of Company, (iv) a
tender
offer; or (v) any other transaction or series of transactions that
the
Committee, in its discretion, determines to involve a threatened
change in
the control of Company. In addition, irrespective of a Change in
Control,
the Committee may at any other time determine, in its discretion,
to
accelerate the vesting of some or all of the unvested Award Shares
in
accordance with the terms of the Plan.
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2. Grant
of Award Shares.
Subject
to the terms and conditions of the Plan, Company grants to Participant the
Award
Shares under the Plan in consideration for Participant’s past and future
services to Company and for Participant’s covenants in Section 11 of this
Agreement. Participant has no beneficial interest in the Award Shares until
Participant countersigns this Agreement and returns it to Company (the “Grant
Date”). The Award Shares will be issued no later than fifteen (15) business days
after the Grant Date (the “Issue Date”).
3. Term;
Termination of Award Shares.
All
Award Shares not vested on or before the Fifth Anniversary (“Term”) shall be
forfeited and Participant shall have no further rights with respect thereto.
In
addition, if Participant ceases for any reason to be an employee of Company
or
Bank, whether due to resignation, death, disability, termination for cause,
termination without cause, or otherwise (such date of termination, the “Service
Termination Date”), all unvested Award Shares shall be forfeited upon such
Service Termination Date and Participant shall have no further rights with
respect thereto except as expressly permitted by the Plan.
4. Withholding
Taxes; Excise Taxes.
(a) Company
shall have the right to deduct from the Award Shares paid any federal, state,
local, or employment taxes which it deems are required by law to be withheld
with respect to such payments. Participant receiving Award Shares pursuant
to
the Award may be required to pay to Company an amount required to be withheld
with respect to the vesting of the Award Shares. At the request of Participant,
or as required by law, such sums as may be required for the payment of any
estimated or accrued income tax liability may be withheld and paid over to
the
governmental entity entitled to receive the same. Notwithstanding the foregoing,
Company may establish procedures to permit a recipient to satisfy such
obligation, if any, in whole or in part, and any other local, state or federal
income tax obligations relating to such Award, by electing (the “Election”) to
pay to Company the amount of any such obligation (i) in cash or by certified
or
bank cashier’s check or by personal check (subject to collection); (ii) by
delivery (by either actual delivery or attestation) of shares of Common Stock
owned by Participant at the time of exercise for a period of at least six months
and otherwise acceptable to the Committee, provided that no securities may
be
surrendered in payment of such obligation if such action would cause Company
to
recognize compensation expense (or additional compensation expense) with respect
to this Award for financial reporting purposes; (iii) if Participant is eligible
to elect to defer compensation under Company’s Deferred Compensation Plan (the
“DCP”) at the time of vesting, then an election by Participant to defer receipt
of the Award Shares that meets the requirements of the DCP; or (iii) a
combination of the foregoing methods. The value of shares tendered in payment
of
such obligation (“Payment Shares”) shall be the Fair Market Value of Company’s
Common Stock on the date that such shares are tendered to Company, and the
number of Payment Shares to be tendered shall, when aggregated with the value
of
any other permitted form of payment provided by Participant, approximate as
nearly as possible (but not exceed) the amount of such obligation being
satisfied. Each Election must be made in writing to the Committee in accordance
with election procedures established by the Committee.
(b) If
and to
the extent Participant has entered into a written employment agreement with
Company or Bank, any restrictions or limitations on the receipt and vesting
of
any Award Shares under this Agreement shall be in addition to, and not a
substitute for, any restrictions or limitations on the payment of compensation
or benefits generally under such agreement. Correspondingly, if any such
employment agreement provides for additional compensation or benefits to
Participant, including but not limited to any obligation of the Company to
accelerate payment or to make payments to Participant for certain taxes, the
benefits provided to Participant by this Agreement shall be in addition to,
and
not a substitute for, the benefits provided to Participant by such employment
agreement.
5. Rights
as Shareholder.
Subject
to the provisions of the Plan, until Award Shares are vested (the “Restriction
Period”), Participant may not sell, transfer, pledge or assign such Award
Shares. During the Restricted Period, Participant shall have, with respect
to
the Award Shares, all of the other rights of a shareholder of Company, including
the right to vote and to receive any dividends. Dividends paid in stock of
Company or stock received in connection with a stock split with respect to
Restricted Stock shall be subject to the same restrictions as the Award Shares.
Company shall retain all certificates for Award Shares in its custody until
vested and shall deliver certificates to Participant only after vesting of
such
Award Shares.
6. Non-Transferability
of the Award Shares.
(a) During
Participant’s lifetime, Participant shall not sell, transfer, assign, pledge or
otherwise encumber the Award Shares until all conditions to vesting have been
met and the shares have been vested.
(b) This
Award shall not be transferable other than by will or the laws of intestate
succession. The designation of a beneficiary does not constitute a transfer.
(c) In
the
event of (i) any attempt by Participant to alienate, assign, pledge, hypothecate
or otherwise dispose of the Award, except as provided for herein, or (ii) the
levy of any attachment, execution or similar process upon the rights or
interests herein conferred, Company may terminate the Award by notice to
Participant and it shall thereafter become null and void.
7. Amendments
and Termination.
Company
may (a) amend, alter or discontinue the Plan, (b) amend the terms of this Award
prospectively or retroactively, or (c) substitute a new Award for this Award,
but no amendment, alteration, substitution or discontinuation shall be made
(except those specifically permitted under other provisions of this Agreement
or
the Plan) which would impair the rights of Participant under the Award without
Participant’s consent.
8. Tax
Treatment of this Award.
The tax
treatment of shares subject to this Award and any events or transactions with
respect thereto, may be dependent upon various factors or events that are not
determined by this Agreement. Company makes no representation with respect
to,
and disclaims all responsibility as to, such tax treatment. Participant
acknowledges that he has been advised and has had the opportunity to consult
with his own tax advisor with respect to this Agreement.
9. Public
Offering Restriction.
In
connection with any underwritten public offering by Company of its equity
securities pursuant to an effective registration statement filed under the
Securities Act, Participant shall not directly or indirectly sell, make any
short sale of, loan, hypothecate, pledge, offer, grant or sell any Award Shares
or other contract for the purchase of, purchase any option or other contract
for
the sale of, or otherwise dispose of or transfer, or agree to engage in any
of
the foregoing transactions with respect to, any Award Shares without the prior
written consent of Company and its underwriters. Such restriction shall be
in
effect for such period of time following the date of the final prospectus for
the offering as may be required by Company or its underwriters. In order to
enforce the provisions of this Section, Company may impose stop transfer
instructions with respect the Award Shares and/or may require Participant to
deposit the Award Shares in escrow until the end of the applicable stand-off
period. Company’s underwriters shall be beneficiaries of the agreement set forth
in this Section, and, if requested by the underwriters, Participant agrees
to
execute the underwriters’ standard form of lock-up agreement. This Section shall
not apply to shares that are specifically included in shares registered under
the Securities Act.
10. Legends.
All
certificates evidencing Award Shares shall bear the following legend until
vested:
The
transferability of this certificate and the shares of stock represented hereby
are subject to the terms and conditions (including forfeiture) of the United
Western Bancorp, Inc. 2007 Equity Incentive Plan and a Restricted Stock Award
Agreement entered into between the registered owner and Company. Copies of
such
Plan and Award Agreement are on file in the offices of Company, 000
00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000.
In
addition, if Participant is or becomes an “affiliate” of Company (as such term
is defined in Rule 144 promulgated under the Securities Act of 1933), then
all
certificates evidencing Award Shares shall bear the following legend until
transferred or sold to a non-affiliate or such time as Participant is no longer
an “affiliate”:
THE
SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE “RESTRICTED SECURITIES” AS DEFINED IN RULE 144
PROMULGATED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”). THE SECURITIES MAY NOT
BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (i) IN COMPLIANCE
WITH RULE 144, OR (ii) PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO COMPANY
THAT SUCH COMPLIANCE IS NOT REQUIRED AS TO SAID SALE, OFFER OR
DISTRIBUTION.
11. Participant’s
Covenants.
In
consideration for the grant of the Award, Participant covenants and agrees
that,
during the Restricted Period, as defined below, Participant shall
not
(except on behalf of Company or with Company’s prior written consent), directly
or indirectly:
(a) (i)
solicit
the business of any of Company’s or Bank’s customers or clients,
(ii) hinder, disrupt or otherwise interfere with Company’s or Bank’s
ongoing business relationship with any of their respective customers or clients,
(iii) solicit the employment of any employee of Company or Bank or (iv) encourage,
counsel or otherwise cause any employee of Company or Bank to terminate the
employee’s employment relationship with Company or Bank.
(b) The
“Restricted Period” shall be the twelve (12) month period following the
termination of Participant’s employment by Company or Bank, irrespective of the
reason for such termination.
(c) If
Participant breaches any of the agreements and covenants in this Section (the
“Covenants”), Company may seek money damages on account of such breach and may
pursue all other remedies, including the right of setoff against any moneys
owed
by Participant by Company or Bank. It is agreed by the parties that a breach
by
Participant of any of the Covenants will cause irreparable harm and damage
to
Company or Bank, the monetary amount of which may be virtually impossible to
ascertain. Participant therefore acknowledges and agrees that Company shall
be
entitled to an injunction from any court of competent jurisdiction enjoining
and
restraining any such breach by Participant or by any of Participant’s
affiliates, associates, partners or agents, either directly or indirectly,
and
that any such injunction or other equitable relief shall be in addition to,
and
not a substitute for, any other remedies available to Company, including but
not
limited to money damages.
(d) The
Covenants are in addition to, and not a substitute for, any covenants or other
agreements with respect to the same or similar subject matter as may be
contained in any written employment agreement of Participant with Company or
Bank.
12. Notices.
All
notices under this Agreement shall be in writing and shall be deemed delivered
when personally delivered to the Secretary of Company or to Participant or
upon
deposit of the same in the United States mail, first class postage prepaid,
or
upon delivery to a recognized overnight delivery service addressed in the case
of mail or delivery service to the Secretary of Company at Company’s executive
offices or to Participant at Participant’s current address as shown on the
records of Company.
13. Interpretation
of this Agreement.
The
Award is granted pursuant to the terms of the Plan, which are incorporated
herein by reference, and the Award and this Agreement shall in all respects
be
interpreted in accordance with the Plan. The Committee shall interpret and
construe the Plan and this Agreement, and the Committee’s interpretations and
determinations shall be conclusive and binding on the parties hereto and any
other person claiming an interest hereunder.
14. Governing
Law.
The
validity, interpretation and effect of this Agreement shall be governed by
and
determined in accordance with the laws of the State of Colorado, without giving
effect to principles of conflict of laws.
15. Preemption
by Applicable Law or Regulations.
Anything in this Agreement to the contrary notwithstanding, if, at any time
specified herein for the issuance of shares to Participant, any law, regulation,
or requirements of any governmental authority having appropriate jurisdiction
shall require either Company or Participant to take any action prior to or
in
connection with the shares of Common Stock then to be issued, sold, or
repurchased, the issue, sale, or repurchase of such shares of Common Stock
shall
be deferred until such action shall have been taken.
16. Resolution
of Disputes.
Any
dispute or disagreement which shall arise under, or as a result of, or pursuant
to, this Agreement shall be determined by the Committee in its absolute and
uncontrolled discretion, and any such determination or any other determination
by the Committee under or pursuant to this Agreement and any interpretation
by
the Committee of the terms of this Agreement shall be final, binding, and
conclusive on all persons affected thereby.
17. Construction.
This
Agreement has been entered into in accordance with the terms of the Plan, and
wherever a conflict may arise between the terms of this Agreement and the terms
of the Plan, the terms of the Plan shall control.
18. Regulatory
Compliance.
No
stock shall be issued hereunder until Company has received all necessary
regulatory approvals and has taken all necessary steps to assure compliance
with
federal and state securities laws or has determined to its satisfaction and
the
satisfaction of its counsel that an exemption from the requirements of the
federal and applicable state securities laws are available.
19. Acceptance
by Participant.
If
Participant does not execute this Agreement within ninety (90) days of the
Effective Date, the grant of the Award Shares shall be null and
void.
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first set
forth
above.
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UNITED
WESTERN BANCORP, INC.
a
Colorado corporation
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| By: | ||
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Xxxx X. Xxxxxx, |
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| Chief Executive Officer | ||
| PARTICIPANT: | ||
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Name: «First_Name» «Last_Name» |
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