FORM OF 2UNIFI, LLC CLASS B UNIT AWARD AGREEMENT
FORM OF
2UNIFI, LLC
CLASS B UNIT AWARD AGREEMENT
This CLASS B UNIT AWARD AGREEMENT (this “Agreement”), by and between 2UniFi, LLC (the “Company”) and the individual named on the signature page hereto (“Participant”) is made as of the date set forth on such signature page hereto (the “Grant Date”) pursuant to the 2UniFi, LLC 2023 Equity Unit Incentive Plan (the “Plan”).
WHEREAS, the Committee (and in the case of an Executive Officer, the NBHC Compensation Committee) has determined that it would be in the best interest of the Company to grant Participant a number of Class B Units on the terms and subject to the conditions set forth in this Agreement, the Plan and the LLC Agreement.
NOW, THEREFORE, to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:
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and sale of Class B Units. Participant hereby acknowledges that (a) neither the Company nor NBHC Group has provided, and is not hereby providing, Participant with legal or tax advice and has urged Participant to consult his or her own tax advisor with respect to the taxation consequences of the Class B Units and (b) neither the Company nor NBHC Group has advised Participant to rely on any determination by it or its representatives as to the fair market value specified in the Section 83(b) Election and will have no liability to Participant if the actual fair market value of the Class B Units on the Grant Date exceeds the amount specified in the Section 83(b) Election.
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in addition to any other available equitable and legal remedies or rights to recoupment or forfeiture under any clawback or recoupment provisions or policies as contemplated by Section 11.7 of the Plan. The Clawback shall be exercised by the Company and/or NBH Members (or any of their respective Affiliates designated thereby), as applicable, through the delivery of a written notice to Participant identifying the conduct giving rise to the Clawback and the cash amount to be returned to the Company and/or NBH Members (or any of their respective Affiliates designated thereby), as applicable, by Participant within 30 days following the date such notice is delivered to Participant.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN REPURCHASE OPTIONS AND OTHER PROVISIONS SET FORTH IN THE Limited Liability company Agreement of 2unifI, llc, AS AMENDED AND MODIFIED FROM TIME TO TIME, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE ISSUER’S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE; and
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| i. | except as required for the performance of duties assigned to Participant by the NBHC Group, use any Trade Secret Information to, directly or indirectly, (A) solicit any client or customer of the NBHC Group to transact business with a Competitive Enterprise, or (B) induce or attempt to induce any client, customer, or investor (in each case, whether former, current, or prospective), vendor, supplier, licensee, or other business relation of the NBHC Group to reduce or cease doing business with the NBHC Group, or in any way interfere with the relationship between any such client, customer, investor, vendor, supplier, licensee, or business relation, on the one hand, and the NBHC Group, on the other hand. For purposes of this Section 6.3(a)(i), “Competitive Enterprise” means any business enterprise that engages in any activity closely associated with commercial banking or any other financial services business, including the operations of an institution, the deposits of which are insured by the Federal Deposit Insurance Corporation, that is competitive with any portion of the business conducted by the NBHC Group; |
| ii. | (A) solicit any individual who is, on the date on which Participant incurs a Termination of Employment (the “Date of Termination”) (or was, during the six-month period prior to the Date of Termination), employed by the NBHC Group to terminate or refrain from renewing or extending such employment or to become employed by or become a consultant to any other individual or entity other than the NBHC Group, or (B) initiate discussions with any such individual for any such purpose or authorize or knowingly cooperate with the taking of any such actions by any other individual or entity. |
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Company further agree that, if any provision of this Agreement is determined by any court of competent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, that provision will be deemed to be modified to permit its enforcement to the maximum extent permitted by law. In order that the NBHC Group shall have all the agreed-upon temporal protection recited herein, Participant agrees that the Restricted Period shall be tolled, and shall not run, during any period of time in which Participant is in violation in any material respect of his or her obligations under Section 6.3. No claimed breach of contract or violation of law by the Company, or change in the nature or scope of Participant’s employment or service relationship with the NBHC Group, shall operate to extinguish Participant’s obligation to comply with this Section 6.
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If to the Company:
2UniFi, LLC
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Greenwood Village, CO 80111
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Email:▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
If to Participant:
To the most recent address of Participant set forth in the personnel records of the Company.
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excluded and shall be enforced in accordance with its terms to the maximum extent permitted by law. If for any reason one or more of the provisions contained in this Agreement or in any other instrument referred to herein, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument. Furthermore, a determination in any jurisdiction that this Agreement, in whole or in part, is invalid, illegal or unenforceable shall not in any way affect or impair the validity, legality or enforceability of this Agreement in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date written below.
2unifi, LLC | |
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Name: [__________] Title: [__________] | |
Dated: _____________________________ | |
[Signature page to Class B Unit Award Agreement]
PARTICIPANT SIGNATURE PAGE
Name:
Address:
GRANT DATE:[Grant Date]
NUMBER OF CLASS B UNITS GRANTED:[_____]
BENCHMARK AMOUNT:$[_______]
Signature: | ______________________ |
Date: | __________________________ |
[Signature page to Class B Unit Award Agreement]
EXHIBIT A
LIMITED LIABILITY COMPANY AGREEMENT
Joinder
The undersigned hereby agrees to become a party to the Limited Liability Company Agreement of 2UniFi, LLC, a Delaware limited liability company (the “Company”), dated as of December 11, 2023 (as amended from time to time, the “LLC Agreement”), and shall accept and be subject to, and comply with the terms, conditions and provisions of the LLC Agreement as an Employee Member thereunder, and shall be entitled to the rights and benefits and subject to the duties and obligations of an Employee Member thereunder.
Date: _________________ | |
Acknowledged and Accepted:
2UniFi, LLC
By: National Bank Holdings Corporation, its managing member
By:
Name:
Title:
EXHIBIT B
LIMITED LIABILITY COMPANY AGREEMENT
Spousal Consent
The spouse of the Employee Member executing the Limited Liability Company Agreement of 2UniFi, LLC, a Delaware limited liability company (the “Company”), dated as of December 11, 2023 (as amended from time to time, the “LLC Agreement”), is fully aware of, understands and fully consents and agrees to the provisions of the LLC Agreement and its binding effect upon any community property interests or similar marital property interests in the Units or other securities of the Company they may now or hereafter own, and agrees that the termination of his or her marital relationship with any Employee Member for any reason shall not have the effect of removing any Units or other securities of the Company otherwise subject to the LLC Agreement from the coverage of the LLC Agreement and that their awareness, understanding, consent and agreement are evidenced by his or her signature below.
Date: _________________ | |
EXHIBIT C
ELECTION PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE TO INCLUDE IN GROSS
INCOME THE EXCESS, IF ANY, OF THE FAIR MARKET VALUE OF PROPERTY TRANSFERRED IN CONNECTION WITH SERVICES, OVER THE AMOUNT, IF ANY, PAID FOR SUCH PROPERTY
The undersigned hereby elects pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in the undersigned’s gross income for the [______] taxable year the excess (if any) of the fair market value of the property described below, over the amount the undersigned paid for such property, if any, and supplies herewith the following information in accordance with the Treasury regulations promulgated under Section 83(b):
1.Taxpayer Information. The undersigned’s name, address and taxpayer identification (social security) number are:
Name:
Address:
Social Security #:
The undersigned’s spouse’s name, address and taxpayer identification (social security) number are (complete if applicable):
Name:
Address:
Social Security #:
▇.▇▇▇▇▇▇▇▇ for Which Election Is Made. The property with respect to which the election is made is [______] Class B Units of 2UniFi, LLC (the “Company”).
▇.▇▇▇▇ of Transfer. The date on which the above property was transferred to the undersigned was [_____], and the taxable year to which this election relates is [_____].
4.Restrictions to Which Property Is Subject. The above property is subject to the following restrictions: (a) forfeiture or a right of repurchase by the Company if the undersigned ceases to provide services to the Company or one of its Affiliates or otherwise breaches his or her obligations to the Company or, for a portion of the property, if certain performance conditions are not satisfied, and (b) certain other restrictions pursuant to the agreement evidencing the award and the Limited Liability Company Agreement of the Company, dated as of December 11, 2023, including all exhibits and schedules thereto, as may be amended from time to time.
5.Fair Market Value. The fair market value of the above property at the time of transfer (determined without regard to any restrictions other than those which by their terms will never lapse) is $0.
6.Amount Paid for Property. The amount paid for the above property by the undersigned was $0.
7.Gross Income. The amount to include in gross income is $0.
The undersigned shall file this election with the Internal Revenue Service office with which the undersigned files his or her annual income tax return not later than 30 days after the date of transfer of the property. A copy of the election also shall be furnished to the person for whom the services were performed. The undersigned is the person performing the services in connection with which the property was transferred.
Date: _________________ | |
Date: _________________ | |
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EXHIBIT D
Accredited Investor Status
As used in the Agreement, the term “accredited investor” with respect to a natural person means:
(i) | A natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; |
(ii) | A natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000 at the time of purchase of the Interests; |
(iii) | A natural person who is a director, executive officer, or general partner of the Company, or a director, executive officer, or general partner of the Managing Member; |
(iv) | A natural person who holds in good standing a professional certification, designation or credential from an accredited educational institution that the Securities and Exchange Commission has designated as qualifying an individual for accredited investor status; or |
(v) | A natural person who is a “knowledgeable employee” (as defined in Rule 3c-5(a)(4) of the Investment Company Act) of the Company where the Company would be an investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act. As used in this subsection (v), a “knowledgeable employee” means a natural person who is: (A) an executive officer, director, trustee, general partner, advisory board member, or person serving in a similar capacity, of the Company; or (B) an employee of the Company (other than an employee performing solely clerical, secretarial or administrative functions with regard to the Partnership or its investments) who, in connection with his or her regular functions or duties, participates in the investment activities of the Company, provided that such employee has been performing such functions and duties for or on behalf of the Company, or substantially similar functions or duties for or on behalf of another company for at least 12 months. |
Definition of “Spousal Equivalent”
The term “spousal equivalent” means a cohabitant occupying a relationship generally equivalent to that of a spouse.
Definition of “Net Worth” and “Income”
The term “net worth” means the excess of total assets at fair market value over total liabilities, provided that (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the person’s primary residence, up to the
estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability.
In determining individual “income,” (a) any amounts attributable to tax-exempt income received, losses claimed as a member in any limited partnership, deductions claimed for depletion, contributions to an IRA or ▇▇▇▇▇ retirement plan to the extent vested, alimony payments, and any amount by which income from long-term capital gains has been reduced in arriving at adjusted gross income should be added to the person’s individual adjusted gross income (exclusive of any spousal income), and (b) any unrealized capital gain should be subtracted from the person’s individual adjusted gross income.