EXHIBIT 10.1
FORM OF RESTRICTED STOCK UNIT AGREEMENT
FOR REGULAR GRANTS TO NON-EMPLOYEE DIRECTORS
YEAR 2000 UNIONBANCAL CORPORATION
MANAGEMENT STOCK PLAN
NON-EMPLOYEE DIRECTOR
RESTRICTED STOCK UNIT AGREEMENT
This Agreement is made as of _________________, 200__ (the "Award Date"),
between UnionBanCal Corporation (the "Company") and
_____________________________________ ("Participant").
WITNESSETH:
WHEREAS, the Company has adopted the Year 2000 UnionBanCal Corporation
Management Stock Plan (the "Plan") as an amendment and restatement of the
predecessor UnionBanCal Corporation Management Stock Plan authorizing the
transfer of common stock of the Company ("Stock") to eligible individuals in
connection with the performance of services for the Company and its Subsidiaries
(as defined in the Plan). The Plan is administered by the Executive Compensation
and Benefits Committee ("Committee") of the Company's Board of Directors and is
incorporated in this Agreement by reference and made a part of it; and
WHEREAS, the Company regards Participant as a valuable contributor to the
Company, and has determined that it would be to the advantage and interest of
the Company and its stockholders to grant to Participant the Restricted Stock
Units provided for in this Agreement, subject to restrictions, as an inducement
to remain in the service of the Company and as an incentive for increased
efforts during such service;
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual
covenants herein contained, the parties to this Agreement hereby agree as
follows:
1. RESTRICTED STOCK UNIT AWARD. As of the Award Date, the Company hereby
grants to Participant (_______) Restricted Stock Units (the "Regular
Grant"). Each Restricted Stock Unit represents the right to receive one
share of Stock, subject to the vesting and other terms and conditions set
forth in this Agreement.
2. VESTING.
(a) The Regular Grant awarded under Section 1 shall become vested and
nonforfeitable in accordance with the following schedule so long as
Participant remains in service as a director of the Company (or any of
its Subsidiaries).
(1) On ________________, 100% of the Regular Grant shall become fully
vested and nonforfeitable.
(b) If Participant ceases to be a Non-Employee Director of the Company or
any of its Subsidiaries for any reason other than death, disability
within the meaning of Section 22(e)(3) of the Internal Revenue Code of
1986, as amended ("Disability"), or departure from the Board as
defined from time to time in the rotation policy of the Company's
Corporate Governance Guidelines ("Retirement"), all Restricted Stock
Units to the extent not yet vested under subsection (a) on the date
Participant ceases to be a Non-Employee Director shall be forfeited by
Participant without payment of any consideration to Participant
therefor.
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(c) If Participant's service as a Non-Employee Director of the Company (or
any of its Subsidiaries) terminates by reason of death, Disability or
Retirement, or if the Company is subject to a Change in Control (as
defined below) while Participant is a Non-Employee Director of the
Company (or any of its Subsidiaries), Participant's interest in all
Restricted Stock Units awarded hereunder shall become fully vested and
nonforfeitable as of the date of death, Disability, Retirement or
Change in Control.
(d) The Committee may, in its sole discretion, accelerate the vesting of
the Regular Grant on a pro rata basis if Participant does not stand
for re-election as a member of the Board of Directors of the Company
and its Subsidiaries, effective upon termination of such service.
3. LIMITATIONS ON RIGHTS ASSOCIATED WITH RESTRICTED STOCK UNITS. Participant's
Restricted Stock Units shall be credited to a memorandum account on the
books of the Company ("Restricted Stock Unit Account"). The Restricted
Stock Units credited to a Participant's Restricted Stock Unit Account shall
be used solely as a device for the determination of the number of shares of
Stock to be distributed eventually to the Participant under the Plan
pursuant to Section 5. The Restricted Stock Units shall not be treated as
property or as a trust fund of any kind. No Participant shall be entitled
to any voting or other stockholder rights with respect to Restricted Stock
Units granted or credited under the Plan. The number of Restricted Stock
Units credited (and the Stock to which the Participant is entitled upon
distribution under the Plan) shall be subject to adjustment in accordance
with Section 6 hereof and Section 3(b) of the Plan. This Agreement shall
create only a contractual obligation on the part of the Company as to such
amounts and shall not be construed as creating a trust. The Plan, in and of
itself, has no assets. A Participant shall have only the rights of a
general unsecured creditor of the Company with respect to amounts credited
and rights no greater than the right to receive the Stock (or equivalent
value) as a general unsecured creditor.
4. DIVIDEND EQUIVALENT CREDITS TO RESTRICTED STOCK UNIT ACCOUNTS. As of each
date on which dividends are paid with respect to the Stock, a Participant's
Restricted Stock Unit Account shall be credited with additional Restricted
Stock Units in an amount equal to (i) the amount of the dividends paid on
that number of shares of Stock equal to the aggregate number of Restricted
Stock Units allocated to the Participant's Restricted Stock Unit Account as
of that date divided by (ii) the Fair Market Value (as defined in the Plan)
of a share of Stock as of such date. The additional Restricted Stock Units
credited as dividend equivalents shall be subject to the same vesting and
forfeiture restrictions as the underlying Restricted Stock Units with
respect to which they are credited.
5. DISTRIBUTION OF STOCK.
(a) GENERAL. Unless Participant has made a timely election to defer in
accordance with the provisions of this Agreement, the Company shall
issue to Participant one share of Stock for each Restricted Stock Unit
credited to Participant's Restricted Stock Unit Account on the date
such Restricted Stock Unit becomes vested or as soon as
administratively practicable thereafter. Fractions of shares shall be
paid in cash in connection with any distribution. All shares of Stock
issued hereunder shall be deemed issued to Participant as fully paid
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and nonassessable shares, and Participant shall have all rights of a
stockholder with respect thereto, including the right to vote, to
receive dividends (including stock dividends), to participate in stock
splits or other recapitalizations, and to exchange such shares in a
merger, consolidation or other reorganization. Participant hereby
acknowledges that Participant is acquiring the Stock issued hereunder
for investment and not with a view to the distribution thereof, and
that Participant does not intend to subdivide Participant's interest
in the Stock with any other person.
(b) DEFERRAL ELECTIONS. Participant may elect to defer the delivery of
shares of Stock subject to Restricted Stock Units that vest pursuant
to this Agreement in accordance with the rules set forth below and any
rules and procedures that may hereafter be adopted by the Committee.
Unless otherwise provided by the Committee in accordance with the
requirements of Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"), deferral elections must be in writing, must be
received by the Company at its headquarters and become irrevocable no
later than June 30, 2006, and shall not be effective with respect to
amounts that become payable during 2006.
(c) TIME OF DISTRIBUTION.
A deferral election shall specify the date as of which the
distribution shall be made or commence (the "Payment Date"), which
shall be either:
(1) Participant's termination of service for any reason as a member
of the Board of Directors of the Company and its Subsidiaries, or
(2) A date certain subsequent to the calendar year in which the
Restricted Stock Units subject to a grant are scheduled to become
fully vested pursuant to Section 2(a).
Participant may not change the election of a Payment Date with respect
to any Restricted Stock Units deferred under this Agreement unless
otherwise permitted by the Committee in accordance with the
requirements of Section 409A of the Code.
(d) METHOD OF DISTRIBUTION.
A deferral election shall specify the method in which the distribution
of Stock shall be made, as elected by the Participant, which shall be
either:
(1) in a single distribution on the Payment Date (or as soon
thereafter as administratively feasible),
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(2) in four substantially equal annual installments, commencing on
the Payment Date (or as soon thereafter as administratively
feasible) or
(3) in ten substantially equal annual installments, commencing on the
Payment Date (or as soon thereafter as administratively
feasible).
A Participant may not change the method of any distribution election
with respect to any Restricted Stock Units deferred under this
Agreement unless otherwise permitted by the Committee in accordance
with the requirements of Section 409A of the Code.
(e) EFFECT OF DEATH, DISABILITY OR CHANGE IN CONTROL. Notwithstanding
Sections 5(b), (c) or (d) hereof, if Participant dies or becomes
disabled within the meaning of Section 22(e)(3) of the Code, or if the
Company is subject to a Change in Control (as defined below), the
vested Restricted Stock Units then credited to Participant's
Restricted Stock Unit Account shall be settled by means of a single
distribution of shares of Stock as soon as administratively
practicable. Notwithstanding the foregoing, the settlement of
Participant's Restricted Stock Unit Account shall not be accelerated
upon a Change in Control unless the Change in Control satisfies the
applicable requirements for a distribution in compliance with Section
409A(a)(2) of the Code.
(f) CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred upon the
happening of any of the following events: consummation of a
reorganization, merger or consolidation or sale or other disposition
of all or substantially all of the assets or stock of the Company or
the acquisition of the assets or stock of another entity ("Business
Combination"); excluding, however, such a Business Combination
pursuant to which (a) a Permitted Holder will beneficially own,
directly or indirectly, 30% or more of, respectively, the outstanding
shares of common stock, and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors (together, the "Company Stock"), as the case may
be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries),
and (b) no individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended, has a greater beneficial interest, directly or indirectly, in
the Company Stock than a Permitted Holder. For purposes of this
definition, "Permitted Holder" shall mean (i) The Bank of
Tokyo-Mitsubishi UFJ, Ltd. or any successor thereto ("BTMU"), (ii) an
employee benefit plan of BTMU or (iii) a corporation controlled by
BTMU.
(g) FORM OF DISTRIBUTION. Restricted Stock Units may be settled only in
whole shares of Stock. Fractional shares shall be settled in cash.
(h) 15% PREMIUM FOR RETIREMENT DEFERRALS. If Participant makes a timely
election pursuant to this Agreement to defer delivery of shares of
Stock subject to the Restricted Stock Units until termination of
service as a member of the Board of Directors of the Company and its
Subsidiaries, and if Participant terminates service due to Retirement
(or death or Disability after becoming Retirement eligible),
Participant will be credited with an additional number of Restricted
Stock Units equal to 15% of the number of Restricted Stock Units
granted pursuant to Section 1 of this Agreement, and dividend
equivalents with respect to such additional Restricted Stock Units as
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if such units had been credited to Participant's Restricted Stock Unit
Account on the Award Date. In addition, if Participant terminates
service due to Retirement (or death or Disability after becoming
Retirement eligible) in 2007, but prior to the one-year anniversary of
the Award Date, Participant will be credited with the additional
Restricted Stock Units as described in the immediately preceding
sentence, without regard to whether Participant made a timely election
to defer delivery of shares of Stock until termination. The additional
Restricted Stock Units credited pursuant to this Section 5(h) shall be
settled upon such termination of Board service.
(i) SECTION 409A. This Agreement is intended to comply with the
requirements of Section 409A of the Code and shall be interpreted in
accordance therewith.
6. ADJUSTMENTS IN CASE OF CORPORATE TRANSACTIONS. If there should be any
change in the Company's Stock through merger, consolidation,
reorganization, recapitalization, reincorporation, stock split, stock
dividend (in excess of 2 percent) or other change in the corporate
structure of the Company, the Board of Directors and the Committee shall
make appropriate adjustments in order to preserve but not to duplicate or
otherwise increase the benefit to Participant (taking into account any
dividend equivalents credited pursuant to Section 4), including adjustments
in the number of Restricted Stock Units credited to Participant's
Restricted Stock Unit Account (which shall remain subject to the same
vesting and forfeiture schedule otherwise applicable to the Restricted
Stock Units prior to adjustment). Any adjustment made pursuant to this
Section 6 as a consequence of a change in the corporate structure of the
Company shall not entitle Participant to receive a number of shares of
Stock of the Company or shares of stock of any successor company greater
than the number of shares the Participant would receive if, prior to such
change, Participant had actually held a number of shares of Stock equal to
the number of Restricted Stock Units then credited to his or her Restricted
Stock Unit Account.
7. LIMITATION ON ELIGIBLE DIRECTORS. This Agreement and the award of
Restricted Stock Units hereunder shall not give Participant the right to
continue to serve as a member of the Board of Directors or any rights or
interests other than as herein provided.
8. BENEFICIARIES.
(a) BENEFICIARY DESIGNATION. Upon forms provided by and subject to
conditions imposed by the Committee, Participant may designate in
writing the Beneficiary or Beneficiaries (as defined below) whom such
Participant desires to receive any amounts payable under this
Agreement after his or her death. A Beneficiary designation must be
signed and dated by Participant and delivered to the Committee to
become effective. The Company and the Committee may rely on
Participant's designation of a Beneficiary or Beneficiaries last filed
in accordance with this Agreement.
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(b) DEFINITION OF BENEFICIARY. Participant's "Beneficiary" or
"Beneficiaries" shall be the person(s) designated in writing by
Participant to receive his or her benefits under this Agreement if
Participant dies before receiving all of his or her benefits. In the
absence of a valid or effective Beneficiary designation, Participant's
surviving spouse shall be the Beneficiary or if there is none, the
Beneficiary shall be Participant's estate.
9. RESTRICTIONS ON TRANSFER. Neither the Restricted Stock Units, nor any
interest therein, nor amount payable or Stock deliverable in respect
thereof, may be sold, assigned, transferred, pledged, or otherwise disposed
of, alienated, or encumbered, either voluntarily or involuntarily, other
than by will or the laws of descent and distribution, and in the event
thereof, the Committee at its election may terminate the Restricted Stock
Units. Stock issued upon settlement of a Restricted Stock Unit Account
shall be subject to such restrictions on transfer as may be necessary or
advisable, in the opinion of legal counsel to the Company, to assure
compliance with applicable securities laws.
10. NOTICE. Any notice or other paper required to be given or sent pursuant to
the terms of this Agreement shall be sufficiently given or served hereunder
to any party when transmitted by registered or certified mail, postage
prepaid, addressed to the party to be served as follows:
Company: Executive Vice President and Director of Human
Resources
UnionBanCal Corporation
400 California Street, 10th Floor
San Francisco, CA 94104
Participant: At Participant's address as it appears under
Participant's signature to this Agreement, or to
such other address as Participant may specify in
writing to the Company.
Any party may designate another address for receipt of notices so long
as notice is given in accordance with this Section 10.
11. COMMITTEE DECISIONS CONCLUSIVE. All decisions, determinations and
interpretations of the Committee arising under the Plan or under this
Agreement shall be conclusive and binding on all parties.
12. MANDATORY ARBITRATION. Any dispute arising out of or relating to this
Agreement, including its meaning or interpretation, shall be resolved
solely by arbitration before an arbitrator selected in accordance with the
rules of the American Arbitration Association. The location for the
arbitration shall be in San Francisco, Los Angeles or San Diego as selected
by the Company in good faith. Judgment on the award rendered may be entered
in any court having jurisdiction. The party the arbitrator determines is
the prevailing party shall be entitled to have the other party pay the
expenses of the prevailing party, and in this regard the arbitrator shall
have the power to award recovery to such prevailing party of all costs and
fees (including attorneys fees and a reasonable allocation for the costs of
the Company's in-house counsel), administrative fees, arbitrator's fees and
court costs, all as determined by the arbitrator. Absent such award of the
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arbitrator, each party shall pay an equal share of the arbitrator's fees.
All statutes of limitation which would otherwise be applicable shall apply
to any arbitration proceeding under this Section 12. The provisions of this
Section 12 are intended by Participant and the Company to be exclusive for
all purposes and applicable to any and all disputes arising out of or
relating to this Agreement. The arbitrator who hears and decides any
dispute shall have jurisdiction and authority only to award compensatory
damages to make whole a person or entity sustaining foreseeable economic
damages, and shall not have jurisdiction and authority to make any other
award of any type, including without limitation, punitive damages,
unforeseeable economic damages, damages for pain, suffering or emotional
distress, or any other kind or form of damages. The remedy, if any, awarded
by the arbitrator shall be the sole and exclusive remedy for any dispute
which is subject to arbitration under this Section 12.
13. SUCCESSORS. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns. Nothing contained in the Plan or
this Agreement shall be interpreted as imposing any liability on the
Company or the Committee in favor of Participant or any purchaser or other
transferee of Stock with respect to any loss, cost or expense which
Participant, purchaser or transferee may incur in connection with, or
arising out of any transaction involving any shares of Stock subject to the
Plan or this Agreement.
14. INTEGRATION. The terms of the Plan and this Agreement are intended by the
Company and the Participant to be the final expression of their contract
with respect to the shares of Stock and other amounts received under the
Plan and may not be contradicted by evidence of any prior or
contemporaneous agreement. The Company and Participant further intend that
the Plan and this Agreement shall constitute the complete and exclusive
statement of their terms and that no extrinsic evidence whatsoever may be
introduced in any arbitration, judicial, administrative or other legal
proceeding involving the Plan or this Agreement. Accordingly, the Plan and
this Agreement contain the entire understanding between the parties and
supersede all prior oral, written and implied agreements, understandings,
commitments and practices among the parties. In the event of any conflict
among the provisions of the Plan document and this Agreement, the Plan
document shall prevail. The Company and Participant shall have the right to
amend this Agreement in writing as they mutually agree.
15. WAIVERS. Any failure to enforce any terms or conditions of the Plan or this
Agreement by the Company or by the Participant shall not be deemed a waiver
of that term or condition, nor shall any waiver or relinquishment of any
right or power at any one time or times be deemed a waiver or
relinquishment of that right or power for all or any other times.
16. SEVERABILITY OF PROVISIONS. If any provision of the Plan or this Agreement
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision thereof, and the Plan and this
Agreement shall be construed and enforced as if neither of them included
such provision.
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17. California Law. The Plan and this Agreement shall be construed and enforced
according to the laws of the State of California to the extent not
preempted by the federal laws of the United States of America. In the event
of any arbitration proceedings, actions at law or suits in equity in
relation to the Plan or this Agreement, the prevailing party in such
proceeding, action or suit shall receive from the losing party its
attorneys' fees and all other costs and expenses of such proceeding, action
or suit.
IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock
Unit Agreement as of the date first above written. Participant also hereby
acknowledges receipt of a copy of the Prospectus and the Year 2000 UnionBanCal
Corporation Management Stock Plan.
UNIONBANCAL CORPORATION
By _____________________________________
Paul Fearer, Executive Vice President
____________________________________
Participant Signature
____________________________________
Participant Printed Name
____________________________________
Social Security Number
____________________________________
Street Address
____________________________________
City State Zip Code
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FORM OF RESTRICTED STOCK UNIT AGREEMENT
FOR GRANTS TO NEW NON-EMPLOYEE DIRECTORS
YEAR 2000 UNIONBANCAL CORPORATION
MANAGEMENT STOCK PLAN
NON-EMPLOYEE DIRECTOR
RESTRICTED STOCK UNIT AGREEMENT
This Agreement is made as of _________________, 200__ (the "Award Date"),
between UnionBanCal Corporation (the "Company") and
_____________________________________ ("Participant").
WITNESSETH:
WHEREAS, the Company has adopted the Year 2000 UnionBanCal Corporation
Management Stock Plan (the "Plan") as an amendment and restatement of the
predecessor UnionBanCal Corporation Management Stock Plan authorizing the
transfer of common stock of the Company ("Stock") to eligible individuals in
connection with the performance of services for the Company and its Subsidiaries
(as defined in the Plan). The Plan is administered by the Executive Compensation
and Benefits Committee ("Committee") of the Company's Board of Directors and is
incorporated in this Agreement by reference and made a part of it; and
WHEREAS, the Company regards Participant as a valuable contributor to the
Company, and has determined that it would be to the advantage and interest of
the Company and its stockholders to grant to Participant the Restricted Stock
Units provided for in this Agreement, subject to restrictions, as an inducement
to remain in the service of the Company and as an incentive for increased
efforts during such service;
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual
covenants herein contained, the parties to this Agreement hereby agree as
follows:
1. RESTRICTED STOCK UNIT AWARD. As of the Award Date, the Company hereby
grants to Participant (i) (_______) Restricted Stock Units (the "Initial
Grant") and (ii) (_______) Restricted Stock Units (the "Regular Grant").
Each Restricted Stock Unit represents the right to receive one share of
Stock, subject to the vesting and other terms and conditions set forth in
this Agreement.
2. VESTING.
(a) The Initial Grant awarded under Section 1 shall become vested and
nonforfeitable in accordance with the following schedule so long as
Participant remains in service as a Non-Employee Director of the
Company (or any of its Subsidiaries).
(1) On ________________, 33% of the Initial Grant shall become fully
vested and nonforfeitable.
(2) On ________________, 33% of the Initial Grant shall become fully
vested and nonforfeitable.
(3) On ________________, the balance of the Initial Grant shall
become fully vested and nonforfeitable.
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(b) The Regular Grant awarded under Section 1 shall become vested and
nonforfeitable in accordance with the following schedule so long as
Participant remains in service as a director of the Company (or any of
its Subsidiaries).
(1) On ________________, 100% of the Regular Grant shall become fully
vested and nonforfeitable.
(c) If Participant ceases to be a Non-Employee Director of the Company or
any of its Subsidiaries for any reason other than death, disability
within the meaning of Section 22(e)(3) of the Internal Revenue Code of
1986, as amended ("Disability"), or departure from the Board as
defined from time to time in the rotation policy of the Company's
Corporate Governance Guidelines ("Retirement"), all Restricted Stock
Units to the extent not yet vested under subsections (a) and (b) on
the date Participant ceases to be a Non-Employee Director shall be
forfeited by Participant without payment of any consideration to
Participant therefor.
(d) If Participant's service as a Non-Employee Director of the Company (or
any of its Subsidiaries) terminates by reason of death, Disability or
Retirement, or if the Company is subject to a Change in Control (as
defined below) while Participant is a Non-Employee Director of the
Company (or any of its Subsidiaries), Participant's interest in all
Restricted Stock Units awarded hereunder shall become fully vested and
nonforfeitable as of the date of death, Disability, Retirement or
Change in Control.
(e) The Committee may, in its sole discretion, accelerate the vesting of
the Regular Grant on a pro rata basis if Participant does not stand
for re-election as a member of the Board of Directors of the Company
and its Subsidiaries, effective upon termination of such service.
3. LIMITATIONS ON RIGHTS ASSOCIATED WITH RESTRICTED STOCK UNITS. Participant's
Restricted Stock Units shall be credited to a memorandum account on the
books of the Company ("Restricted Stock Unit Account"). The Restricted
Stock Units credited to a Participant's Restricted Stock Unit Account shall
be used solely as a device for the determination of the number of shares of
Stock to be distributed eventually to the Participant under the Plan
pursuant to Section 5. The Restricted Stock Units shall not be treated as
property or as a trust fund of any kind. No Participant shall be entitled
to any voting or other stockholder rights with respect to Restricted Stock
Units granted or credited under the Plan. The number of Restricted Stock
Units credited (and the Stock to which the Participant is entitled upon
distribution under the Plan) shall be subject to adjustment in accordance
with Section 6 hereof and Section 3(b) of the Plan. This Agreement shall
create only a contractual obligation on the part of the Company as to such
amounts and shall not be construed as creating a trust. The Plan, in and of
itself, has no assets. A Participant shall have only the rights of a
general unsecured creditor of the Company with respect to amounts credited
and rights no greater than the right to receive the Stock (or equivalent
value) as a general unsecured creditor.
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4. DIVIDEND EQUIVALENT CREDITS TO RESTRICTED STOCK UNIT ACCOUNTS. As of each
date on which dividends are paid with respect to the Stock, a Participant's
Restricted Stock Unit Account shall be credited with additional Restricted
Stock Units in an amount equal to (i) the amount of the dividends paid on
that number of shares of Stock equal to the aggregate number of Restricted
Stock Units allocated to the Participant's Restricted Stock Unit Account as
of that date divided by (ii) the Fair Market Value (as defined in the Plan)
of a share of Stock as of such date. The additional Restricted Stock Units
credited as dividend equivalents shall be subject to the same vesting and
forfeiture restrictions as the underlying Restricted Stock Units with
respect to which they are credited.
5. DISTRIBUTION OF STOCK.
(a) GENERAL. Unless Participant has made a timely election to defer in
accordance with the provisions of this Agreement, the Company shall
issue to Participant one share of Stock for each Restricted Stock Unit
credited to Participant's Restricted Stock Unit Account on the date
such Restricted Stock Unit becomes vested or as soon as
administratively practicable thereafter. Fractions of shares shall be
paid in cash in connection with any distribution. All shares of Stock
issued hereunder shall be deemed issued to Participant as fully paid
and nonassessable shares, and Participant shall have all rights of a
stockholder with respect thereto, including the right to vote, to
receive dividends (including stock dividends), to participate in stock
splits or other recapitalizations, and to exchange such shares in a
merger, consolidation or other reorganization. Participant hereby
acknowledges that Participant is acquiring the Stock issued hereunder
for investment and not with a view to the distribution thereof, and
that Participant does not intend to subdivide Participant's interest
in the Stock with any other person.
(b) DEFERRAL ELECTIONS. Participant may elect to defer the delivery of
shares of Stock subject to Restricted Stock Units that vest pursuant
to this Agreement in accordance with the rules set forth below and any
rules and procedures that may hereafter be adopted by the Committee.
Unless otherwise provided by the Committee in accordance with the
requirements of Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"), deferral elections must be in writing, must be
received by the Company at its headquarters and become irrevocable no
later than the Award Date, and shall not be effective with respect to
amounts that become payable during 2006.
(c) TIME OF DISTRIBUTION.
A deferral election shall specify the date as of which the
distribution shall be made or commence (the "Payment Date"), which
shall be either:
(1) Participant's termination of service for any reason as a member
of the Board of Directors of the Company and its Subsidiaries, or
(2) A date certain subsequent to the calendar year in which the
Restricted Stock Units subject to a grant are scheduled to become
fully vested pursuant to Sections 2(a) or (b).
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Participant may not change the election of a Payment Date with respect
to any Restricted Stock Units deferred under this Agreement unless
otherwise permitted by the Committee in accordance with the
requirements of Section 409A of the Code.
(d) METHOD OF DISTRIBUTION.
A deferral election shall specify the method in which the distribution
of Stock shall be made, as elected by the Participant, which shall be
either:
(1) in a single distribution on the Payment Date (or as soon
thereafter as administratively feasible),
(2) in four substantially equal annual installments, commencing on
the Payment Date (or as soon thereafter as administratively
feasible) or
(3) in ten substantially equal annual installments, commencing on the
Payment Date (or as soon thereafter as administratively
feasible).
A Participant may not change the method of any distribution election
with respect to any Restricted Stock Units deferred under this
Agreement unless otherwise permitted by the Committee in accordance
with the requirements of Section 409A of the Code.
(e) EFFECT OF DEATH, DISABILITY OR CHANGE IN CONTROL. Notwithstanding
Sections 5(b), (c) or (d) hereof, if Participant dies or becomes
disabled within the meaning of Section 22(e)(3) of the Code, or if the
Company is subject to a Change in Control (as defined below), the
vested Restricted Stock Units then credited to Participant's
Restricted Stock Unit Account shall be settled by means of a single
distribution of shares of Stock as soon as administratively
practicable. Notwithstanding the foregoing, the settlement of
Participant's Restricted Stock Unit Account shall not be accelerated
upon a Change in Control unless the Change in Control satisfies the
applicable requirements for a distribution in compliance with Section
409A(a)(2) of the Code.
(f) CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" of the Company shall be deemed to have occurred upon the
happening of any of the following events: consummation of a
reorganization, merger or consolidation or sale or other disposition
of all or substantially all of the assets or stock of the Company or
the acquisition of the assets or stock of another entity ("Business
Combination"); excluding, however, such a Business Combination
pursuant to which (a) a Permitted Holder will beneficially own,
directly or indirectly, 30% or more of, respectively, the outstanding
shares of common stock, and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors (together, the "Company Stock"), as the case may
be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries),
and (b) no individual, entity or group (within the meaning of Section
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13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended, has a greater beneficial interest, directly or indirectly, in
the Company Stock than a Permitted Holder. For purposes of this
definition, "Permitted Holder" shall mean (i) The Bank of
Tokyo-Mitsubishi UFJ, Ltd. or any successor thereto ("BTMU"), (ii) an
employee benefit plan of BTMU or (iii) a corporation controlled by
BTMU.
(g) FORM OF DISTRIBUTION. Restricted Stock Units may be settled only in
whole shares of Stock. Fractional shares shall be settled in cash.
(h) 15% PREMIUM FOR RETIREMENT DEFERRALS. If Participant makes a timely
election pursuant to this Agreement to defer delivery of shares of
Stock subject to the Restricted Stock Units until termination of
service as a member of the Board of Directors of the Company and its
Subsidiaries, and if Participant terminates service due to Retirement
(or death or Disability after becoming Retirement eligible),
Participant will be credited with an additional number of Restricted
Stock Units equal to 15% of the number of Restricted Stock Units
granted pursuant to Section 1 of this Agreement, and dividend
equivalents with respect to such additional Restricted Stock Units as
if such units had been credited to Participant's Restricted Stock Unit
Account on the Award Date. The additional Restricted Stock Units
credited pursuant to this Section 5(h) shall be settled upon such
termination of Board service.
(i) SECTION 409A. This Agreement is intended to comply with the
requirements of Section 409A of the Code and shall be interpreted in
accordance therewith.
6. ADJUSTMENTS IN CASE OF CORPORATE TRANSACTIONS. If there should be any
change in the Company's Stock through merger, consolidation,
reorganization, recapitalization, reincorporation, stock split, stock
dividend (in excess of 2 percent) or other change in the corporate
structure of the Company, the Board of Directors and the Committee shall
make appropriate adjustments in order to preserve but not to duplicate or
otherwise increase the benefit to Participant (taking into account any
dividend equivalents credited pursuant to Section 4), including adjustments
in the number of Restricted Stock Units credited to Participant's
Restricted Stock Unit Account (which shall remain subject to the same
vesting and forfeiture schedule otherwise applicable to the Restricted
Stock Units prior to adjustment). Any adjustment made pursuant to this
Section 6 as a consequence of a change in the corporate structure of the
Company shall not entitle Participant to receive a number of shares of
Stock of the Company or shares of stock of any successor company greater
than the number of shares the Participant would receive if, prior to such
change, Participant had actually held a number of shares of Stock equal to
the number of Restricted Stock Units then credited to his or her Restricted
Stock Unit Account.
7. LIMITATION ON ELIGIBLE DIRECTORS. This Agreement and the award of
Restricted Stock Units hereunder shall not give Participant the right to
continue to serve as a member of the Board of Directors or any rights or
interests other than as herein provided.
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8. BENEFICIARIES.
(a) BENEFICIARY DESIGNATION. Upon forms provided by and subject to
conditions imposed by the Committee, Participant may designate in
writing the Beneficiary or Beneficiaries (as defined below) whom such
Participant desires to receive any amounts payable under this
Agreement after his or her death. A Beneficiary designation must be
signed and dated by Participant and delivered to the Committee to
become effective. The Company and the Committee may rely on
Participant's designation of a Beneficiary or Beneficiaries last filed
in accordance with this Agreement.
(b) DEFINITION OF BENEFICIARY. Participant's "Beneficiary" or
"Beneficiaries" shall be the person(s) designated in writing by
Participant to receive his or her benefits under this Agreement if
Participant dies before receiving all of his or her benefits. In the
absence of a valid or effective Beneficiary designation, Participant's
surviving spouse shall be the Beneficiary or if there is none, the
Beneficiary shall be Participant's estate.
9. RESTRICTIONS ON TRANSFER. Neither the Restricted Stock Units, nor any
interest therein, nor amount payable or Stock deliverable in respect
thereof, may be sold, assigned, transferred, pledged, or otherwise disposed
of, alienated, or encumbered, either voluntarily or involuntarily, other
than by will or the laws of descent and distribution, and in the event
thereof, the Committee at its election may terminate the Restricted Stock
Units. Stock issued upon settlement of a Restricted Stock Unit Account
shall be subject to such restrictions on transfer as may be necessary or
advisable, in the opinion of legal counsel to the Company, to assure
compliance with applicable securities laws.
10. NOTICE. Any notice or other paper required to be given or sent pursuant to
the terms of this Agreement shall be sufficiently given or served hereunder
to any party when transmitted by registered or certified mail, postage
prepaid, addressed to the party to be served as follows:
Company: Executive Vice President and Director of Human
Resources
UnionBanCal Corporation
400 California Street, 10th Floor
San Francisco, CA 94104
Participant: At Participant's address as it appears under
Participant's signature to this Agreement, or to
such other address as Participant may specify
in writing to the Company.
Any party may designate another address for receipt of notices so long
as notice is given in accordance with this Section 10.
11. COMMITTEE DECISIONS CONCLUSIVE. All decisions, determinations and
interpretations of the Committee arising under the Plan or under this
Agreement shall be conclusive and binding on all parties.
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12. MANDATORY ARBITRATION. Any dispute arising out of or relating to this
Agreement, including its meaning or interpretation, shall be resolved
solely by arbitration before an arbitrator selected in accordance with the
rules of the American Arbitration Association. The location for the
arbitration shall be in San Francisco, Los Angeles or San Diego as selected
by the Company in good faith. Judgment on the award rendered may be entered
in any court having jurisdiction. The party the arbitrator determines is
the prevailing party shall be entitled to have the other party pay the
expenses of the prevailing party, and in this regard the arbitrator shall
have the power to award recovery to such prevailing party of all costs and
fees (including attorneys fees and a reasonable allocation for the costs of
the Company's in-house counsel), administrative fees, arbitrator's fees and
court costs, all as determined by the arbitrator. Absent such award of the
arbitrator, each party shall pay an equal share of the arbitrator's fees.
All statutes of limitation which would otherwise be applicable shall apply
to any arbitration proceeding under this Section 12. The provisions of this
Section 12 are intended by Participant and the Company to be exclusive for
all purposes and applicable to any and all disputes arising out of or
relating to this Agreement. The arbitrator who hears and decides any
dispute shall have jurisdiction and authority only to award compensatory
damages to make whole a person or entity sustaining foreseeable economic
damages, and shall not have jurisdiction and authority to make any other
award of any type, including without limitation, punitive damages,
unforeseeable economic damages, damages for pain, suffering or emotional
distress, or any other kind or form of damages. The remedy, if any, awarded
by the arbitrator shall be the sole and exclusive remedy for any dispute
which is subject to arbitration under this Section 12.
13. SUCCESSORS. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns. Nothing contained in the Plan or
this Agreement shall be interpreted as imposing any liability on the
Company or the Committee in favor of Participant or any purchaser or other
transferee of Stock with respect to any loss, cost or expense which
Participant, purchaser or transferee may incur in connection with, or
arising out of any transaction involving any shares of Stock subject to the
Plan or this Agreement.
14. INTEGRATION. The terms of the Plan and this Agreement are intended by the
Company and the Participant to be the final expression of their contract
with respect to the shares of Stock and other amounts received under the
Plan and may not be contradicted by evidence of any prior or
contemporaneous agreement. The Company and Participant further intend that
the Plan and this Agreement shall constitute the complete and exclusive
statement of their terms and that no extrinsic evidence whatsoever may be
introduced in any arbitration, judicial, administrative or other legal
proceeding involving the Plan or this Agreement. Accordingly, the Plan and
this Agreement contain the entire understanding between the parties and
supersede all prior oral, written and implied agreements, understandings,
commitments and practices among the parties. In the event of any conflict
among the provisions of the Plan document and this Agreement, the Plan
document shall prevail. The Company and Participant shall have the right to
amend this Agreement in writing as they mutually agree.
15. WAIVERS. Any failure to enforce any terms or conditions of the Plan or this
Agreement by the Company or by the Participant shall not be deemed a waiver
of that term or condition, nor shall any waiver or relinquishment of any
right or power at any one time or times be deemed a waiver or
relinquishment of that right or power for all or any other times.
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16. SEVERABILITY OF PROVISIONS. If any provision of the Plan or this Agreement
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provision thereof, and the Plan and this
Agreement shall be construed and enforced as if neither of them included
such provision.
17. CALIFORNIA LAW. The Plan and this Agreement shall be construed and enforced
according to the laws of the State of California to the extent not
preempted by the federal laws of the United States of America. In the event
of any arbitration proceedings, actions at law or suits in equity in
relation to the Plan or this Agreement, the prevailing party in such
proceeding, action or suit shall receive from the losing party its
attorneys' fees and all other costs and expenses of such proceeding, action
or suit.
IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock
Unit Agreement as of the date first above written. Participant also hereby
acknowledges receipt of a copy of the Prospectus and the Year 2000 UnionBanCal
Corporation Management Stock Plan.
UNIONBANCAL CORPORATION
By _____________________________________
Paul Fearer, Executive Vice President
____________________________________
Participant Signature
____________________________________
Participant Printed Name
____________________________________
Social Security Number
____________________________________
Street Address
____________________________________
City State Zip Code
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