TIB FINANCIAL CORP. RESTRICTED STOCK AGREEMENT
EXHIBIT 10.13
THIS
RESTRICTED STOCK AGREEMENT, dated _____________, 2005, is between TIB Financial
Corp., a Florida corporation (the “Company”),
and
_________________________ (the “Holder”).
1. Recitals.
The
Holder is being awarded _______ shares of the $.10 par value common stock of
TIB
Financial Corp. (the “Restricted
Shares”
or
“Shares”)
pursuant to the TIB Financial Corp. 2004 Equity Incentive Plan (“Plan”).
All
terms which are defined in the Plan, as the same may be amended from time to
time, shall have the same meanings in this Agreement as are specified in the
Plan, unless otherwise specifically defined herein.
2. Restrictions.
The
Holder shall not sell, assign, transfer by gift or otherwise, pledge, encumber,
hypothecate, or otherwise dispose of, by operation of law or otherwise, any
of
the Restricted Shares unless and to the extent the Restricted Shares have become
Vested Shares as provided below.
3. Vesting;
Lapse of Restrictions.
(a) General.
Except
as otherwise provided in this Agreement, the Restricted Shares shall vest and
the restrictions shall lapse on the date set forth in Exhibit A to this
Agreement (the “Vesting
Date”),
provided that the Holder shall not have ceased Continuous Service before the
Vesting Date. Restricted Shares that have become vested and as to which the
restrictions have lapsed shall be referred to as “Vested
Shares”;
Restricted Shares that have not become vested and as to which the restrictions
have not lapsed shall be referred to as “Unvested
Shares.”
Subject to Section 5 of this Agreement, the Holder will have all the rights
of a
shareholder with respect to the Restricted Shares, including, but not limited
to, the right to receive all dividends paid on the Restricted Shares and the
right to vote the Restricted Shares.
(b) Vesting
on Certain Events.
All
Unvested Shares shall immediately vest and be considered Vested Shares upon
a
Change of Control or the death of the Holder.
(c) Transfer
Upon Lapse of Restrictions.
The
Holder may sell, assign, transfer by gift or otherwise, hypothecate, or
otherwise dispose of, by operation of law or otherwise, any of the Vested Shares
at the Holder’s discretion, except that the Holder agrees that he shall not make
any sale or transfer of the Vested Shares that would conflict with or violate
any of the provisions of the Securities Act of 1933 or any applicable state
securities laws.
4. Termination
of Services. Subject
to Section 3(b), if the Holder ceases Continuous Services for any reason before
the Unvested Shares have vested, the Holder’s rights with respect to the
Unvested Shares will terminate and be returned to the Company. The Holder
shall
execute such documents and take such other actions as may be necessary in order
to transfer full legal title with respect to such Unvested Shares to the
Company.
5. Delivery
of Unvested Shares.
If the
Holder or the Holder’s representative is required to transfer certain of the
Shares to the Company pursuant to Section 4, the Shares shall promptly be
tendered to the Company by the delivery of certificates for such Shares, duly
endorsed in blank by the Holder or the Holder’s representative or with stock
powers attached thereto duly endorsed, at the Company’s principal offices, all
in form suitable for the transfer of such Shares to the Company. The Company
shall not pay any dividend to the Holder on account of such Shares or permit
the
Holder to exercise any of the privileges or rights of a stockholder with respect
to such Shares, but shall, in so far as permitted by law, treat the Company
as
the owner of such Shares.
6. Effect
of Prohibited Transfer.
The
Company may refuse for any purpose to recognize any transferee who receives
Shares contrary to the provisions of this Agreement as a stockholder of the
Company and may retain and/or recover all dividends on such Restricted Shares
that were paid or payable subsequent to the date on which the prohibited
transfer was made or attempted. In addition to any other legal or equitable
remedies it may have, the Company may enforce its rights to specific performance
to the extent permitted by law and may exercise such other equitable remedies
then available to it.
7. Enforcement
of Restrictions
(a) Legend.
All
certificates representing Restricted Shares shall have affixed thereto the
following legend:
“The
shares of stock represented by this Certificate are subject to all of the terms
of a Restricted Stock Repurchase Agreement between TIB Financial Corp. and
the
registered owner of this Certificate (the “Agreement”). Copies of the Agreement
and the Plan are on file at the office of the Company. The Agreement, among
other things, limits the right of the holder to transfer the shares represented
hereby and provides in certain circumstances that all or a portion of the shares
must be returned to the Company.”
(b) Custody
of Certificates.
The
Company may, in its sole discretion, require the Holder to keep the certificate
representing the Restricted Shares, duly endorsed, in the custody of the Company
while the Shares are subject to the restrictions contained in Section 2. The
Company may, in its sole discretion, require that the certificate representing
the Shares, duly endorsed, be held in the custody of a third party while the
Shares are subject to the restrictions contained in Section 2.
(c) Lapse
of Restrictions.
At the
expiration of the restrictions imposed by this Agreement, the Company will
redeliver to the Holder the certificate or certificates and stock powers,
deposited with the Company pursuant to this Agreement and the Shares represented
by the certificate or certificates will be free of all
restrictions.
8. Adjustments
for Stock Splits, Stock Dividends, etc.
In the
event of any change in the outstanding Stock hereafter by reason of any
reorganization, recapitalization, stock split, stock dividend, a combination
or
exchange of shares, merger, consolidation or any change in the corporate
structure affecting the Stock, the Shares shall be proportionately and
appropriately adjusted by the Board pursuant to the provisions of the Plan.
Any
such additional Shares shall be subject to the restrictions and other provisions
of this Agreement in the same manner and to the same extent as the Restricted
Stock. All certificates representing such additional Shares of capital stock
shall have affixed thereto the restrictive legends contained in Sections 7
and 9 hereof. If the Company shall at any time distribute with respect to the
Stock assets or securities of persons other than the Company (other than
distributions of cash or Stock), if the Company shall at any time grant to
the
holders of its Stock rights to subscribe pro
rata
for
additional shares thereof or for any other securities of the Company or of
any
other corporation, or if there is any other change in the number or kind of
outstanding Stock or any stock or other securities into which the Stock shall
be
changed or for which it shall have been exchanged, and if the Company shall
in
its discretion determine that the event equitably requires an adjustment in
the
number or kind of Shares subject to this Agreement or the taking of any other
action by the Company, including without limitation the setting aside of any
property for delivery upon the full vesting of the Shares subject to this
Agreement, then such adjustments shall be made or other action taken by the
Company and shall be effective for all purposes of this Agreement.
9. Investment
Representations.
If
requested by the Company, the Holder shall provide the Company with a written
representation to the effect that the Shares are being acquired solely for
investment and not with a view to, or for sale in connection with, any
distribution of the Shares in any manner that would violate federal or state
securities laws. The Holder acknowledges that all certificates representing
Shares may have affixed thereto a restrictive legend to evidence the requirement
for compliance with the Securities Act of 1933 and any applicable state
securities laws. If the Shares granted pursuant to this Agreement are not issued
in a registered transaction, the following additional legend shall be printed
on
all certificates representing such Shares:
The
Shares represented by this Certificate are “restricted securities” as defined in
Rule 144 under the Securities Act of 1933 and may not be sold or transferred
except in transactions which comply with Rule 144 or, in the opinion of counsel
acceptable to TIB Financial Corp., are exempt therefrom.
10. General.
(a)
Continuous
Service.
Nothing
in this Agreement shall confer upon Holder the right to continue in the
Continuous Service of the Company or its subsidiaries.
(b) Other
Compensation Plans.
The
adoption of the Plan and the execution of this Agreement shall not affect any
other stock option or incentive or other compensation plans in effect for the
Company or its subsidiaries, nor shall the Plan or this Agreement preclude
the
Company or the Bank from establishing any other forms of incentive or other
compensation for directors, officers, or employees of the Company and/or its
Subsidiaries.
(c) Agreement
Binding on Successors.
This
Agreement shall be binding upon the successors and assigns of the Company and
the Holder.
(d) Singular,
Plural; Gender.
Whenever used herein, nouns in the singular shall include the plural, and the
masculine pronoun shall include the feminine gender.
(e) Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida.
(f) Headings.
Headings of Articles and Sections hereof are inserted for convenience and
reference only; they constitute no part of this Agreement.
(g) Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal,
or unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(h) Notices.
Unless
otherwise specified herein, notices required or permitted to be given hereunder
shall be in writing and shall be mailed by registered or certified mail, return
receipt requested, to the principal office of the Company, Attention: Corporate
Secretary (if notice is to the Company) and to the Holder at the Holder’s
address set forth below (if notice is to the Holder), or to such other person
or
such other address as any such party may designate by like notice to the other
party, and shall be deemed given as of the date and time received.
(i) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which, when
so
executed, shall be considered an original, and all of which together shall
constitute one and the same instrument.
(j) Subject
to Plan.
The
issuance of the Option shall be subject to the terms and conditions of the
Plan.
In the event of any conflict between the terms of this Agreement and the Plan,
the terms of the Plan shall govern.
IN
WITNESS WHEREOF, the parties have executed this Agreement to be effective as
set
forth above.
By:____________________________________
HOLDER
_______________________________________
_______________________________________
[PRINT
NAME]
EXHIBIT
A TO RESTRICTED STOCK AGREEMENT
The
Restricted Shares shall vest and the restrictions shall lapse on ____________,
200___ (which date may not be earlier than one year from the date of the
Agreement
