EXHIBIT 99.3
VALLEY BANCORP
RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT ("Agreement") entered into by and between
Valley Bancorp, a Nevada corporation ("Company"), and the Grantee named below,
on ______________, _______.
Grantee: __________________________
Number of Shares of Restricted Stock: __________________________
Date of Grant: __________________________
Fair Market Value of
Restricted Stock on Date of Grant: __________________________
Vesting Schedule
Percentage of Number of Shares of Restricted Stock
That Vests on Such Date (rounded up to next highest
Date of Vesting whole number of shares)
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1. Company hereby grants to Grantee the number of shares of restricted stock
("Restricted Stock") identified above, under the terms and conditions
provided in this Agreement.
2. The shares of Restricted Stock are granted under the Valley Bancorp
Amended and Restated Employee Incentive Stock Plan (the "Plan") and are
subject to the terms and conditions of the Plan and this Agreement. The
terms and conditions of the Plan are incorporated herein by this
reference. In the event of a conflict between the terms and conditions of
the Plan and the terms and conditions of this Agreement, the former shall
govern. Capitalized terms used herein that are not otherwise defined shall
have the meaning given those terms in the Plan.
3. Grantee is not required to pay any amounts for shares of Restricted Stock
received hereunder.
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4. Shares of Restricted Stock shall Vest in accordance with the Vesting
Schedule set forth above. Notwithstanding the foregoing, in the event of a
Sale Transaction all unvested Shares of Restricted Stock subject to this
Agreement shall Vest upon the date of closing of such Sale Transaction or
such earlier date as the Committee may fix (assuming that Grantee has
maintained Continuous Status as an Employee through such date). Shares of
Restricted Stock that have not Vested as of the time Grantee first ceases
to maintain Continuous Status as an Employee shall be forfeited to Company
for no consideration.
5. Shares of Restricted Stock are not transferable and may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any manner,
other than by will or by the laws of descent or distribution, prior to the
time such shares Vest.
6. Notwithstanding any contrary provisions of this Agreement, Grantee may not
sell shares of common stock of Company acquired hereunder (whether or not
Vested) unless those shares are registered under applicable securities
laws and regulations or an exemption from such registration is available.
Prior to such sale, Company may require Grantee to provide it with a
letter, at Grantee's expense, from counsel acceptable to Company stating
that the sale of the shares will not violate any such securities laws or
regulations.
7. Certain Tax Matters. Grantee acknowledges that following:
a. Grantee understands that under Section 83(a) of the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), the excess of the
fair market value on the date of Vesting of the shares of Restricted
Stock over the fair market value on the Date of Grant of such shares
will be taxed at the time of Vesting as ordinary income and subject
to payroll and other withholding taxes and to tax reporting, as
applicable. Grantee further understands that he/she may elect under
Section 83(b) of the Code to be taxed at ordinary income rates based
on the fair market value of the shares of Restricted Stock at the
time such shares are acquired, rather than at the time and as the
shares of Restricted Stock Vest. Such election (an "83(b) Election")
must be filed with the Internal Revenue Service within thirty (30)
days from the Date of Grant.
b. Grantee understands that (i) he/she will not be entitled to a
deduction for any ordinary income previously recognized as a result
of the 83(b) Election if shares of Restricted Stock are subsequently
forfeited to Company, and (ii) the 83(b) Election may cause him/her
to recognize more compensation income than you would have otherwise
recognized if the value of the shares of Restricted Stock
subsequently decline.
c. THE FORM FOR MAKING AN 83(b) ELECTION IS ATTACHED TO THIS AGREEMENT
AS EXHIBIT B. GRANTEE UNDERSTANDS THAT FAILURE TO FILE SUCH AN
ELECTION WITHIN THE 30-DAY PERIOD MAY RESULT IN THE RECOGNITION OF
ORDINARY INCOME BY HIM/HER AS THE SHARES OF RESTRICTED STOCK VEST.
Grantee further understands that an additional copy of such election
form should be filed with
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his/her federal income tax return for the calendar year in which the
date of the Date of Grant falls. Grantee acknowledges that the
foregoing is only a summary of the federal income tax laws that
apply to the shares of Restricted Stock and does not purport to be
complete. GRANTEE FURTHER ACKNOWLEDGES THAT COMPANY HAS DIRECTED
HIM/HER TO SEEK INDEPENDENT ADVICE REGARDING THE APPLICABLE
PROVISIONS OF THE CODE, THE INCOME TAX LAWS OF ANY MUNICIPALITY,
STATE OR FOREIGN COUNTRY IN WHICH HE/SHE MAY RESIDE, AND THE TAX
CONSEQUENCES OF HIS/HER DEATH.
d. Grantee agrees to execute and deliver to Company a copy of (i) the
Acknowledgment and Statement of Decision Regarding Section 83(b)
Election, attached hereto as Exhibit A, and (ii) if he/she makes the
Section 83(b) Election, the 83(b) Election attached hereto as
Exhibit B.
e. Grantee acknowledges that determining the actual tax consequences to
him/her of receiving or disposing of shares of Restricted Stock may
be complicated. These tax consequences will depend, in part, on
Grantee's specific situation and may also depend on the resolution
of currently uncertain tax law and other variables not within the
control of Company. Grantee is aware that he/she should consult a
competent and independent tax advisor for a full understanding of
the specific tax consequences to him/her of receiving or disposing
of shares of Restricted Stock. Prior to executing this Agreement,
Grantee either has consulted with a competent tax advisor
independent of Company to obtain tax advice concerning such shares
in light of his/her specific situation or has had the opportunity to
consult with such a tax advisor but has chosen not to do so.
8. As security for the faithful performance of this Agreement, Grantee
agrees, upon execution hereof, to deliver a stock power in the form
attached as Exhibit C (with the transferee, certificate number, date and
number of shares left blank), executed by Grantee and his/her spouse, if
any, along with any certificate(s) evidencing shares of Restricted Stock
issued to him/her, to the Secretary of Company or its designee ("Escrow
Holder"). Grantee hereby appoints the Escrow Holder to hold such stock
power and any such certificate(s) in escrow and to take all such actions,
and to effectuate all such transfers and/or releases of such Shares, as
are in accordance with the terms of this Agreement and the Plan. The
foregoing appointment is a power coupled with an interest and may not be
revoked by Grantee. Grantee and Company agree that Escrow Holder will not
be liable to any party to this Agreement (or to another party) for any
actions or omissions, unless Escrow Holder is grossly negligent relative
thereto. Escrow Holder may rely on any letter, notice or other document
executed by any signature purported to be genuine and may rely on advice
of counsel and obey any order of any court with respect to the
transactions contemplated in this Agreement. Shares of Restricted Stock
will be released to Grantee from escrow as they Vest.
9. Grantee understands and agrees that, in order to ensure compliance with
the restrictions referred to in this Agreement, Company may issue
appropriate "stop-transfer"
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instructions to its transfer agent, if any, and that, if Company transfers
its own securities, it may make appropriate notations to the same effect
in its own records. Company will not be required to (i) transfer on its
books any shares of Restricted Stock that have been sold or transferred in
violation of the provisions of this Agreement, or (ii) treat as the owner
of such shares of Restricted Stock, or otherwise accord voting, dividend
or liquidation rights to, any transferee to whom such shares have been
transferred in contravention of this Agreement.
10. Company may withhold and remit to the appropriate tax authorities, from
funds in its possession that it owes to Grantee, such amounts as it is
required to so withhold and pay under applicable federal, state and local
tax laws. Grantee hereby discharges Company from all claims, charges and
liability that he/she may have against Company and its agents for any
actions taken by them in connection with the immediately foregoing
sentence.
11. Miscellaneous.
a. Any notice required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given either (i) when
delivered personally to the party to whom it is directed (or any
officer or agent of such party), or (ii) three (3) days after being
deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested and properly addressed to
the party to whom it is directed. A writing directed to Grantee
shall be shall be deemed to be properly addressed if sent to him/her
at the address shown beneath his/her signature below; and a writing
directed to Company shall be deemed to be properly addressed if sent
to Company at the following address:
Valley Bancorp
0000 X. Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: ______________
b. No waiver of any provision of this Agreement shall be valid unless
in writing and signed by the person against whom such waiver is
sought to been forced, nor shall failure to enforce any right
hereunder constitute a continuing waiver of the same or a waiver of
any other rights hereunder.
c. Grantee hereby agrees to take whatever additional action and execute
whatever additional documents Company may deem necessary or
advisable in order to carry out or effect one or more of the
obligations or restrictions imposed either on Grantee or on the
shares of Restricted Stock pursuant to the express provisions of
this Agreement.
d. This Agreement and the Plan constitute the entire agreement between
the parties hereto with regard to the subject matter hereof.
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e. The provisions of this Agreement shall inure to the benefit of, and
be binding on, Company and its successors and assigns, and on
Grantee and his/her legal representatives, heirs, legatees,
distributes, assigns and transferees by operation of law, whether or
not any such persons shall have become a party to this Agreement and
agreed in writing to join herein and be bound by the terms and
conditions hereof.
f. Grantee shall be recorded as a shareholder of Company and shall
have, subject to the provisions of this Agreement and the Plan, all
the rights of shareholder with respect to the shares of Restricted
Stock.
g. The issuance of shares of Restricted Stock to Grantee does not
confer upon him/her a right to continue employment with Company or
its subsidiaries, and nothing in the Plan or this Agreement shall
interfere in any way with the right of Grantee, or the right of
Company or its subsidiaries, to terminate the employment
relationship at any time.
h. This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
VALLEY BANCORP,
a Nevada corporation
By _________________________________
__________________________
Title: ___________________
ATTEST:
By _________________________________
__________________________
Title: ___________________
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ACCEPTANCE AND ACKNOWLEDGMENT
I am a resident of the State of Nevada. I acknowledge receipt of a copy of
the Valley Bancorp Employee Incentive Stock Plan. I accept the shares of
Restricted Stock granted to me hereunder and agree to be bound by this
Agreement.
Dated: _______________ ____________________________________
Signature of Grantee
Address: ___________________________
___________________________
___________________________
SPOUSAL CONSENT/CERTIFICATE OF MARITAL STATUS
By his/her signature below, the undersigned spouse of Grantee acknowledges
that he/she has read this Agreement and the Valley Bancorp Employee Incentive
Stock Plan and is familiar with its terms and conditions. He/she agrees to be
bound by all the terms and conditions of this Agreement and such plan.
Dated: _______________ ____________________________________
Spouse's Signature
____________________________________
Print Name of Spouse
By his/her signature below, Grantee certifies that he/she is not legally
married as of the date of this Agreement.
Dated: _______________ ____________________________________
Signature of Grantee
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EXHIBIT A
ACKNOWLEDGMENT AND STATEMENT OF DECISION
REGARDING SECTION 83(b) ELECTION
The undersigned, a recipient of _______ shares of common stock of Valley
Bancorp, a Nevada corporation (the "Company"), pursuant to a grant of restricted
stock under the terms and conditions of the Valley Bancorp Employee Incentive
Stock Plan (the "Plan"), hereby states as follows:
1. The undersigned acknowledges receipt of a copy of the Restricted Stock
Agreement and Plan relating to the offering of such shares. The undersigned has
carefully reviewed the Restricted Stock Agreement and Plan pursuant to which the
shares are granted.
2. The undersigned either (check as applicable)
(a) ____ has consulted, and has been fully advised by, his/her own tax
advisor, regarding the federal, state and local tax consequences of receiving
shares of restricted stock under the Plan, and particularly regarding the
advisability of making an election pursuant to Section 83(b) of the U.S.
Internal Revenue Code of 1986, as amended (the "Code"), and the corresponding
provisions, if any, of applicable state law, or
(b) ____ has knowingly chosen not to consult such a tax advisor.
3. The undersigned hereby states that the undersigned has decided (check
as applicable):
(a) ____ to make an election pursuant to Section 83(b) of the Code, and is
submitting to Company, together with the undersigned's executed Restricted Stock
Agreement, an executed form entitled "Election Under Section 83(b) of the U.S.
Internal Revenue Code of 1986," or
(b) ____ not to make an election pursuant to Section 83(b) of the Code.
4. Neither Company nor any affiliate or representative of Company has made
any representation or warranty to the undersigned with respect to the
consequences of the his/her acquisition of shares under the Plan or of the
making or failure to make an election pursuant to Section 83(b) of the Code or
the corresponding provisions, if any, of applicable state law.
Dated: ___________________
____________________________________
Print Name: ________________________
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EXHIBIT B
ELECTION UNDER SECTION 83(b)
OF THE U.S. INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
U.S. Internal Revenue Code of 1986, as amended, to include in taxpayer's gross
income for the current taxable year the amount of any compensation taxable to
taxpayer in connection with taxpayer's receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of
the undersigned are as follows:
NAME OF TAXPAYER: ________________________________________________________
NAME OF SPOUSE: __________________________________________________________
ADDRESS: _________________________________________________________________
IDENTIFICATION NO. OF TAXPAYER: __________________________________________
IDENTIFICATION NO. OF SPOUSE: ____________________________________________
TAXABLE YEAR: ____________________________________________________________
2. The property with respect to which the election is made is described as
follows: _______________ shares of the common stock of Valley Bancorp, a Nevada
corporation (the "Company").
3. The date on which the property was transferred is: ___________________
4. The property is subject to the following restrictions:
The property is subject to a forfeiture restriction pursuant to which
Company can reacquire the shares described in paragraph 2 if for any reason
taxpayer's services with Company are terminated. Company's right to receive back
the shares lapses in a series of installments over a ___-year period ending on
___________________.
5. The aggregate fair market value at the time of transfer of such
property (determined without regard to any restriction other than a restriction
that by its terms will never lapse) is: $____________
6. The amount (if any) paid for such property is: $___________
The undersigned has submitted a copy of this statement to the person for
whom the services were performed in connection with the undersigned's receipt of
the above-described
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property. The undersigned is the person performing the services in connection
with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
except with the consent of the Commissioner of Internal Revenue.
Dated: _____________________
Taxpayer ____________________________________
Print Name: ________________________
Spouse ____________________________________
Print Name: ________________________
DISTRIBUTION OF COPIES
1. File original with the Internal Revenue Service Center where the
taxpayer's income tax return will be filed. Filing must be made by no later than
thirty (30) days after the date the property was transferred.
2. Attach one copy to the taxpayer's income tax return for the taxable
year in which the property was transferred.
3. Mail one copy to Company at the following address:
Valley Bancorp
0000 X. Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: ________________
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EXHIBIT C
STOCK POWER AND ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________, _________ shares of the common stock of Valley
Bancorp, a Nevada corporation, standing in the undersigned's name on the books
of said corporation represented by Certificate No._____ delivered herewith, and
does hereby irrevocably constitute the Secretary of said corporation as
attorney-in-fact, with full power of substitution, to transfer said stock on the
books of said corporation.
Dated: _____________________
Taxpayer ____________________________________
Print Name: ________________________
Spouse ____________________________________
Print Name: ________________________
Please see paragraph 8 of the Restricted Stock Agreement for information on
completing this form.
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