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EXHIBIT 10.5
VAIL BANKS, INC.
AMENDED AND RESTATED STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, made and entered into as of the 19th day of November,
1999, by and between VAIL BANKS, INC. ("the "Company") and XXXX X. XXXXXX
("Grantee").
WITNESSETH THAT:
WHEREAS, the Company maintains the Vail Banks, Inc. Amended and
Restated Stock Incentive Plan (the "Plan"), and the Grantee has been selected by
the Committee to receive a Restricted Stock Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Grantee, as follows:
1. AWARD OF RESTRICTED STOCK
1.1 The Company hereby grants to the Grantee an award of 10,476 Shares
of restricted stock ("Restricted Stock"), subject to, and in accordance with,
the restrictions, terms and conditions set forth in this Agreement. The grant
date of this award of Restricted Stock is November 19, 1999 ("Grant Date").
1.2 This Agreement shall be construed in accordance and consistent
with, and subject to, the provisions of the Plan (the provisions of which are
incorporated herein by reference) and, except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the same
definitions as set forth in the Plan.
2. RESTRICTIONS
2.1 Subject to Sections 2.2, 2.3, and 2.4 below, if the Grantee remains
employed by the Company, the Grantee shall become vested in the Restricted Stock
as follows: 10% of the Shares of Restricted Stock (rounded down to the next
whole share) shall vest on each anniversary (each such date shall be a "Vesting
Date") of the Grant Date, such that on November 19, 2009 ("Final Vesting Date")
all of the Shares of Restricted Stock shall be fully vested. On each Vesting
Date, Grantee shall own the Vested Shares of Restricted Stock free and clear of
all restrictions imposed by this Agreement (except those imposed by Section 3.4
below). The Company shall deliver a certificate(s) for the Vested Shares of
Restricted Stock to Grantee as soon as practical after each Vesting Date. For
purposes of this Agreement, employment with any
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Subsidiary of the Company, or service as a Director of the Company or any
Subsidiary of the Company, shall be considered employment with the Company.
2.2 In the event, prior to the Final Vesting Date, (i) Grantee dies
while actively employed by the Company, (ii) Grantee has his employment
terminated by reason of Disability, (iii) Grantee's employment is terminated by
the Company other than for Cause (as defined in Section 2(e) of the Plan),or
(iv) Grantee terminates his employment for Good Reason (as defined in Section
2.5 below), the Restricted Stock shall become fully vested and nonforfeitable as
of the date of Grantee's death, Disability or termination of employment. The
Company shall deliver certificate(s) for the Restricted Stock, free and clear of
any restrictions imposed by this Agreement (except for Section 3.4) to Grantee
(or, in the event of death, his surviving spouse or, if none, to his estate) as
soon as practical after his date of death or termination for Disability,
termination without Cause, or termination for Good Reason. If Grantee terminates
his employment without Good Reason or if the Company terminates Grantee for
Cause, the Restricted Stock shall cease to vest further and Grantee shall only
be entitled to the Restricted Stock that is vested as of his date of
termination.
2.3 Notwithstanding the other provisions of this Agreement, in the
event of a Change in Control prior to Grantee's Final Vesting Date, the
Restricted Stock shall become fully vested and nonforfeitable as of the date of
the Change in Control. On the date of the Change in Control, the Company shall
deliver to Grantee a certificate(s) for the Restricted Stock, free and clear of
any restrictions imposed by this Agreement.
2.4 The Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered prior to the date Grantee becomes vested in the
Restricted Stock.
2.5 For purposes of this Section 2, "Good Reason" shall mean
(i) the assignment to the Executive of any duties inconsistent
with his positions, duties, responsibilities and status with the
Company, its subsidiaries and affiliates immediately prior to a Change
in Control, or a change in his reporting responsibilities, titles or
offices which were in effect immediately prior to a Change in Control,
or any removal of him from or any failure to re-elect him to any of
such positions, except in connection with the termination of his
employment by the Company for Cause or as a result of his death or
Disability or termination by him other than for Good Reason;
(ii) a reduction by the Company in the Executive's base salary
as in effect on the date hereof or as the same may be increased from
time to time, or failure to give him annual salary increases consistent
with performance review ratings as compared with other employees of the
same or similar rank;
(iii) a failure by the Company to continue giving the
Executive bonuses comparable to the amount of bonuses given to him
prior to the Change in Control;
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(iv) the Company's requiring that the Executive be based
anywhere other than the Company's principal executive offices in the
Vail, Colorado area, except for required travel on Company business to
an extent substantially consistent with his present business travel
obligations, or in the event that the Executive consents to any such
relocations, the failure by the Company to pay (or reimburse him for)
all reasonable moving expenses incurred by him; or
(v) the failure by the Company to continue in full force and
effect any benefit, retirement, savings or compensation plan or any
employee life, accident, disability, medical, dental, vision or other
employee welfare benefit plan in which the Executive is participating
at the time of a Change in Control of the Company, the taking of any
action by the Company which would adversely affect his participation in
or materially reduce his benefits under any of such plans or deprive
him of any material fringe benefit or perquisite (including but not
limited to the provision of an automobile and the payment of club dues)
enjoyed by him at the time of the Change in Control, or the failure by
the Company to provide him with the number of paid vacation days to
which he is then entitled in accordance with the normal vacation policy
in effect on the date hereof.
3. STOCK; DIVIDENDS; VOTING
3.1 The stock certificate(s) evidencing the Restricted Stock shall be
registered on the Company's books in the name of the Grantee as of the Grant
Date. Physical possession or custody of such stock certificates shall be
retained by the Company until such time as the shares or Restricted Stock are
vested in accordance with Section 2. While in its possession, the Company
reserves the right to place a legend on the stock certificate(s) restricting the
transferability of such certificates and referring to the terms and conditions
(including forfeiture) of this Agreement and the Plan.
3.2 During the period the Restricted Stock is not vested, the Grantee
shall be entitled to receive dividends and/or other distributions declared on
such Restricted Stock and Grantee shall be entitled to vote such Restricted
Stock.
3.3 In the event of a Change in Capitalization, the number and class of
shares or Restricted Stock or other securities that Grantee shall be entitled
to, and shall hold, pursuant to this Agreement shall be appropriately adjusted
or changed to reflect the Change in Capitalization, provided that any such
additional shares or Restricted Stock or additional or different shares or
securities shall remain subject to the restrictions in this Agreement.
3.4 The Grantee represents and warrants that he is acquiring the
Restricted Stock for investment purposes only, and not with a view to
distribution thereof. The Grantee is aware that the Restricted Stock may not be
registered under the federal or any state securities laws and that, in addition
to the other restrictions on the Restricted Stock, the shares will not be able
to be
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transferred unless an exemption from registration is available. By making this
award of Restricted Stock, the Company is not undertaking any obligation to
register the Restricted Stock under any federal or state securities laws.
4. NO RIGHT TO CONTINUED EMPLOYMENT
Nothing in this Agreement or the Plan shall be interpreted or construed
to confer upon the Grantee any right with respect to continuance of employment
by the Company or a subsidiary, nor shall this Agreement or the Plan interfere
in any way with the right of the Company or a Subsidiary to terminate the
Grantee's employment at any time, subject to Grantee's rights under this
Agreement.
5. TAXES AND WITHHOLDING
The Grantee shall be responsible for all federal, state and local
income taxes payable with respect to this award of Restricted Stock. The Grantee
shall have the right to make such elections under the Internal Revenue Code of
1986, as amended, as are available in connection with this award of Restricted
Stock, including a Section 83(b) election." The Company and Grantee agree to
report the value of the Restricted Stock in a consistent manner for federal
income tax purposes. The Company shall have the right to retain and withhold
from any payment of Restricted Stock the amount of taxes required by any
government to be withheld or otherwise deducted and paid with respect to such
payment. At its discretion, the Company may require Grantee to reimburse the
Company for any such taxes required to be withheld and may withhold any
distribution in whole or in part until the Company is so reimbursed. In lieu
thereof, the Company shall have the right to withhold from any other cash
amounts due to Grantee an amount equal to such taxes required to be withheld or
withhold and cancel (in whole or in part) a number of shares of Restricted Stock
having a market value not less than the amount of such taxes.
6. GRANTEE BOUND BY THE PLAN
The Grantee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof.
7. MODIFICATION OF AGREEMENT
This Agreement may be modified, amended, suspended or terminated, and
any terms or conditions may be waived, but only by a written instrument executed
by the parties hereto.
8. SEVERABILITY
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and shall
continue in full force in accordance with their terms.
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9. GOVERNING LAW
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Colorado without giving
effect to the conflicts of laws principles thereof.
10. SUCCESSORS IN INTEREST
This Agreement shall inure to the benefit of, and be binding upon, the
Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, reorganization, purchase of stock or assets, or
otherwise, all or substantially all of the Company's assets and business. This
Agreement shall inure to the benefit of the Grantee's legal representatives. All
obligations imposed upon the Grantee and all rights granted to the Company under
this Agreement shall be final, binding and conclusive upon the Grantee's heirs,
executors, administrators and successors.
11. RESOLUTION OF DISPUTES
Any dispute or disagreement which may arise under, or as a result of,
or in any way relate to the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made hereunder
shall be final, binding and conclusive on the Grantee and the Company for all
purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
VAIL BANKS, INC.
By: /s/ X. X. Xxxxxxx
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/s/ Xxxx X. Xxxxxx
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Name of Grantee: Xxxx X. Xxxxxx
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