EXHIBIT 10.28
RESTRICTED STOCK AGREEMENT
UNDER THE
BNCCORP, INC. 1995 STOCK INCENTIVE PLAN
THIS AGREEMENT is entered into as of _______________, by and between BNCCORP,
INC. ("BNCCORP") and ______________ ("Award Recipient").
WHEREAS, BNCCORP maintains the 1995 Stock Incentive Plan (the "Plan"), under
which the Compensation Committee of the Board of Directors of BNCCORP (the
"Committee") may, among other things, grant shares of BNCCORP common stock, $.01
par value per share (the "Common Stock"), to key employees of BNCCORP or its
subsidiaries (collectively, the "Company") as the Committee may determine,
subject to terms, conditions, or restrictions as it may deem appropriate;
NOW, THEREFORE, in consideration of the premises, it is hereby agreed with
respect to the shares of Restricted Stock as follows:
1.
AWARD OF SHARES
Under the terms of the Plan, the Committee has awarded to the Award Recipient
a restricted stock award for ----- shares of Restricted Stock, subject to the
terms, conditions, and restrictions set forth in the Plan and in this Agreement.
2.
AWARD RESTRICTIONS
2.1 The shares of Restricted Stock and the right to vote the Restricted Stock
and to receive dividends thereon may not be sold, assigned, transferred,
exchanged, pledged, hypothecated or otherwise encumbered until such time as such
shares vest and the restrictions imposed thereon lapse, as provided below.
2.2 The shares of Restricted Stock will vest and the restrictions imposed
thereon will lapse as follows: 60% on the third anniversary date of this
Agreement; 20% on the fourth anniversary date of this Agreement; and 20% on the
fifth anniversary date of this Agreement, if the Award Recipient remains in the
employ of the Company on the applicable anniversary dates. Earlier vesting may
occur under Section 2.3 below or under Section 9.12 of the Plan in the event of
a change of control of BNCCORP. The period during which the restrictions imposed
on shares of Restricted Stock by the Plan and this Agreement are in effect is
referred to herein as the "Restricted Period." During the Restricted Period, the
Award Recipient shall be entitled to all rights of a shareholder of BNCCORP,
including the right to vote the shares and to receive dividends.
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2.3 All restrictions on the Restricted Stock shall immediately lapse and the
shares shall vest (a) if the Award Recipient dies while he is employed by the
Company, (b) if the Award Recipient becomes disabled within the meaning of
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended ("Disability")
while he is employed by the Company, (c) if the Award Recipient retires from
employment with the Company on or after attaining the age of 65 or is granted
early retirement by a vote of the Board of Directors ("Retirement") or (d)
pursuant to the provisions of the Plan.
3.
STOCK CERTIFICATES
3.1 The stock certificates evidencing the Restricted Stock shall be retained by
BNCCORP until the termination of the Restricted Period. The stock certificates
shall contain the legend provided in the Plan restricting the transferability of
the shares of Restricted Stock.
3.2 Upon the lapse of restrictions on shares of Restricted Stock, BNCCORP shall
cause a stock certificate without a restrictive legend representing the shares
of Restricted Stock to be issued in the name of the Award Recipient or his or
her nominee within 30 days after the end of the Restricted Period. Upon receipt
of such stock certificate, the Award Recipient is free to hold or dispose of the
shares represented by such certificate, subject to applicable securities laws.
4.
DIVIDENDS
Any dividends paid on shares of Restricted Stock shall be paid to the Award
Recipient currently.
5.
WITHHOLDING TAXES
At any time that an Award Recipient is required to pay to the Company an
amount required to be withheld under the applicable income tax laws in
connection with the lapse of restrictions on shares of Restricted Stock, the
participant may, subject to the Committee's approval, satisfy this obligation in
whole or in part by electing (the "Election") to have the Company withhold
shares of Common Stock having a value equal to the amount required to be
withheld in accordance with the terms of the Plan currently in effect or as it
may be amended.
6.
ADDITIONAL CONDITIONS
Anything in this Agreement to the contrary notwithstanding, if at any time
BNCCORP further determines, in its sole discretion, that the listing,
registration or qualification (or any updating
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thereof) of the shares of Common Stock issued or issuable pursuant hereto is
necessary on any securities exchange or under any federal or state securities
law, or that the consent or approval of any governmental regulatory body is
necessary or desirable as a condition of, or in connection with the issuance of
shares of Common Stock pursuant hereto, or the removal or any restrictions
imposed on such shares, such shares of Common Stock shall not be issued, in
whole or in part, or the restrictions thereon removed, unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to BNCCORP.
7.
NO CONTRACT OF EMPLOYMENT INTENDED
Nothing in this Agreement shall confer upon the Award Recipient any right to
continue in the employment of the Company, or to interfere in any way with the
right of the Company to terminate the Award Recipient's employment relationship
with the Company at any time.
8.
BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, executors, administrators and successors.
9.
INCONSISTENT PROVISIONS
The shares of Restricted Stock granted hereby are subject to the provisions
of the Plan as in effect on the date hereof and as it may be amended. If any
provision of this Agreement conflicts with a provision of the Plan, the Plan
provision shall control.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed on the day and year first above written.
BNCCORP, INC.
By: /s/ Xxxx Xxxx
Xxxx Xxxx, Chairman,
Compensation Committee
Award Recipient
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