Restricted Stock Award Agreement
Exhibit 10 (m) (ii)
This
agreement (the “Award Agreement”) dated as of November 21,2006 (the “Award
Date”), is entered into by and between State Bancorp, Inc. (the “Company”) and
Xxxxxx X. X’Xxxxx (the “Grantee”) pursuant to the terms of the Employment
Agreement dated as of November 6, 2006 (the “Employment Agreement”) among the
Grantee, the Company and State Bank of Long Island (the “Bank”).
1. Grant.
In
consideration of the Grantee’s acceptance of employment with the Company and the
Bank and execution of the Employment Agreement and pursuant to the terms
of the
Employment Agreement, the Company hereby awards to Grantee a total of 83,612
shares of the Company’s common stock, $5.00 par value (the “Restricted Stock”),
subject to the restrictions set forth herein.
2. Restrictions.
a. During
the period commencing as of the Award Date and until such time as the Restricted
Stock shall have vested in accordance with this Section 3 (the “Restricted
Period”), the Restricted Stock shall remain subject to forfeiture and other
restrictions set forth herein.
b. None
of
the Restricted Stock may be sold, exchanged transferred, pledged, hypothecated,
assigned or otherwise encumbered or disposed of until they shall have vested
in
accordance with this Section 2.
c. Subject
to the Grantee’s continued employment with the Company (or a Subsidiary
thereof), and except as provided below, the Restricted Stock shall vest
in
twenty (20) equal quarterly installments commencing with the end of the
first
quarter in which the Employment Commencement Date (as defined in the Employment
Agreement) occurs.
d. If
the
Grantee’s termination of employment is due to death, the entire unvested portion
of the Restricted Stock shall vest as of the date of the Grantee’s
death.
e. If
the
Grantee’s termination of employment is due to the determination of the Grantee’s
disability pursuant to Section 10 of the Employment Agreement, the Restricted
Stock shall continue to vest as if the Grantee remained in the active service
of
the Company and its Subsidiaries, and, in the event of the Grantee’s death prior
to full vesting of the Restricted Stock, any unvested portion of the Options
shall vest as of the date of the Grantee’s death.
f. If
the
Grantee’s employment is terminated by the Bank with Cause (as defined in the
Employment Agreement), any unvested Restricted Stock shall be forfeited.
If the
Board of Directors of the Company (the “Board”) shall have temporarily suspended
the Grantee’s duties pursuant to the Employment Agreement while any proceeding
to discharge the Grantee with Cause is pending, the Board may, by written
notice
to the Grantee, also temporarily suspend the vesting of the Restricted
Stock.
g. If
the
Grantee’s employment is terminated by the Bank for any reason other than Cause
or disability, any unvested Restricted Stock shall vest as of the date
of such
termination of employment.
h. If
the
Grantee resigns with Good Reason (as defined in the Employment Agreement),
any
unvested Restricted Stock shall vest as of the date of termination of
employment.
i. If
the
Grantee resigns without Good Reason, any unvested Restricted Stock shall
be
forfeited.
3. Rights
as Stockholder.
a. During
the Restricted Period, the Restricted Stock shall be recorded by the Company's
transfer agent on the Company's stock transfer records in a book entry
account
in the name of the Grantee. Within thirty (30) days following request by
the
Grantee, the vested portion of the Restricted Stock will be distributed
to the
Grantee or his or her legal representative by the delivery of a stock
certificate or another method mutually agreeable to the Grantee and the
Company.
Notwithstanding the foregoing, distribution of the Restricted Stock shall
be
made in compliance with Section 409A of the Internal Revenue Code of 1986,
as
amended (the "Code"), and the regulations promulgated thereunder. By signing
this Award Agreement, the Grantee specifically acknowledges that the foregoing
sentence may result in a six (6) month delay in the distribution of Restricted
Stock.
b. The
Grantee shall be entitled to receive dividends and shall have the right
to vote
the Restricted Stock granted hereunder and shall have all other shareholders’
rights with respect to the Restricted Stock, with the exception that (i)
the
Grantee will not be entitled to delivery of the stock certificate representing
the forfeitable portion of the Restricted Stock during the applicable Restricted
Period, (ii) the Company will retain custody of the forfeitable portion
of the
Restricted Stock during the applicable Restricted Period, (iii) failure
to
attain any vesting conditions in this Award Agreement shall cause the forfeiture
of the unvested Restricted Stock and (iv) if any stock dividends are paid
or any
other adjustment is made upon a change in the capital structure of the
Company,
any new, substituted or additional securities or other property (other
than cash
dividends) to which the Grantee is entitled by reason of the Restricted
Stock
will be immediately subject to the same restrictions as the Restricted
Stock
with respect to which they were issued.
c. The
Grantee may, in his discretion, timely file an election under section 83(b)
of
the Code with respect to the Restricted Stock.
4. Governing
Law.
The
validity, construction, interpretation and enforceability of this Award
Agreement shall be determined and governed by the laws of the State of
New York
without regard to any conflicts or choice of law rules or principles that
might
otherwise refer construction or interpretation of this Award Agreement
to the
substantive law of another jurisdiction.
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5. Waiver.
The
waiver by the Company of a breach of any provision of this Award Agreement
by
Grantee shall not operate or be construed as a waiver of any subsequent
breach
by Grantee.
6. Binding
Effect.
The
provisions of this Award Agreement shall be binding upon the parties hereto,
their successors and assigns, including, without limitation, the Company,
its
successors or assigns, the estate of the Grantee and the executors,
administrators or trustees of such estate and any receiver, trustee in
bankruptcy or representative of the creditors of the Grantee.
7. Severability.
The
provisions of this Award Agreement are severable and if any one or more
provisions may be determined to be illegal or otherwise unenforceable,
in whole
or in part, the remaining provisions, and any partially unenforceable provision
to the extent enforceable in any jurisdiction, shall nevertheless be binding
and
enforceable.
8. Beneficiary
Designation.
The
Grantee may, by written notice delivered to the Company prior to the Grantee's
death, designate a beneficiary or beneficiaries who shall, upon the Grantee's
death, succeed to his rights under this Award Agreement and may revoke
a prior
designation by similar subsequent notice.
9. Tax
Withholding.
No
share
certificates will be delivered to the Grantee unless and until the Grantee
pays
to the Company, or makes provision satisfactory to the Company for payment
of,
any federal, state or local withholding taxes required by law to be withheld
in
respect of the Restricted Stock.
10. Compliance
with Securities Laws.
The
issuance of shares pursuant to this Award Agreement shall be subject to
compliance with all applicable requirements of Federal, state and foreign
law
with respect to such securities and the requirements of any stock exchange
or
market system upon which the Company’s stock may then be listed or quoted. In
addition, no share certificates shall be delivered to the Grantee unless
(a) a
registration statement under the Securities Act of 1933 shall at the time
of
such exercise or issuance be in effect with respect to the shares issuable
or
(b) in the opinion of legal counsel to the Company, the shares may be issued
in
accordance with the terms of an applicable exemption from the registration
requirements of the Securities Act. As soon as practicable, the Company
shall
prepare and file with the Securities and Exchange Commission a registration
statement on Form S-8 covering a sufficient number of shares of the Company’s
common stock to provide for all of the common stock contemplated to be
issued
under this Agreement. Thereafter, the Company shall take all actions required
to
maintain the effectiveness of such registration statement until all common
stock
issuable under this Award Agreement has been so issued or forfeited. Subject
to
the Company’s compliance with the foregoing provisions of this Agreement, the
inability of the Company to obtain from any regulatory body having jurisdiction
the authority, if any, deemed by the Company’s legal counsel to be necessary to
the lawful issuance of any shares hereunder shall relieve the Company of
any
liability in respect of the failure to issue such shares as to which such
requisite authority shall not have been obtained.
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11. Gender
and Number.
Except
where otherwise indicated by the context, any masculine term used herein
also
shall include the feminine, the plural shall include the singular, and
the
singular shall include the plural.
12. Severability.
In the
event any provision of this Award Agreement shall be held illegal or invalid
for
any reason, the illegality or invalidity shall not affect the remaining
parts
hereof, and this Award Agreement shall be construed and enforced as if
the
illegal or invalid provision had not been included.
In
Witness Whereof, the parties hereto have caused this Award Agreement to
be
executed to be effective as of the date written above.
STATE
BANCORP, INC.
BY:___________________________
______________________________
XXXXXX
X.
X’XXXXX (Grantee)
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