EXHIBIT 10.11
YEAR 2000 UNIONBANCAL
CORPORATION
MANAGEMENT STOCK PLAN
PERFORMANCE SHARE PLAN
STOCK UNIT DEFERRAL ELECTIONS
TERMS AND
CONDITIONS
The Executive
Compensation and Benefits Committee (the “Committee”)
of the Board of Directors (the “Board”) of UnionBanCal
Corporation (the “Company”), pursuant to its authority
under the Year 2000 UnionBanCal Corporation Management Stock Plan
(the “Management Stock Plan”), has approved the
following terms and conditions applicable to
Performance Share Plan stock unit
deferral elections (these “Terms and
Conditions”). These Terms and Conditions shall apply to
elections to defer the delivery of shares of common stock of the
Company (“Stock”) payable to Participants for Earned
Awards under the Company’s Performance Share Plan and the
applicable Performance Share Agreement between the Company and the
Participant made as of January 1,
. Capitalized terms used but
not otherwise defined herein shall have the meanings attributed
thereto in the applicable Performance Share Agreement, the
provisions of which are incorporated herein by
reference.
1.
Deferral Elections . A Participant in the
Company’s Performance Share Plan who has received a grant of
Performance Shares for the Performance Cycle extending from
January 1, through
December 31, , may irrevocably
elect to defer delivery of all or a portion of the shares of Stock
payable for his or her Earned Award by making an election on or
before December 31, in
accordance with procedures established by the Committee. All
elections shall be in writing in the form of the Stock Unit
Deferral Election attached hereto or such other form as provided by
the Committee (the “Deferral Election”). To be
effective, the Deferral Election must be received by the
Company’s Human Resources Department on or before
December 31, , and must be
signed and dated by the Participant and the Company’s
Director of Human Resources or his or her designee. The
Deferral Election shall specify the percentage of Earned Award
subject to deferral in 5% increments up to a maximum of 100%, and
shall specify the time and method of distribution of deferred
amounts pursuant to Section 6 below. The Deferral Election
shall incorporate these Terms and Conditions by reference.
2.
Stock Units; Stock Unit Accounts .
(a)
Stock Units . If a Participant elects to defer a
portion of his or her Earned Award, the Company shall, as of the
date on which such Earned Award otherwise would have been paid,
credit to a memorandum account in the name of the Participant (the
“Stock Unit Account”) a number of Stock Units equal to
the number of shares of Stock otherwise payable to the Participant
for the Earned Award under the Management Stock Plan. Each
Stock Unit shall represent the right to receive a share of Stock
subject to the terms and conditions set forth in these Terms and
Conditions.
(b)
Statements . The Company shall submit to each
Participant, within one hundred twenty (120) days after the close
of each calendar year, a statement in such form as the Committee or
its delegate deems desirable setting forth the balance of each
Participant’s Stock Unit Account.
3.
Vesting of Stock Units . Stock Units credited to a
Participant’s Stock Unit Account with respect to deferred
Earned Awards shall be fully vested at all times. Stock Units
representing dividend equivalents credited pursuant to Section 5
below shall also be fully vested at all times.
4.
Limitations on Rights Associated with Stock Units .
The Stock Units credited to a Participant’s 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 pursuant to the Performance Share Agreement and the
Management Stock Plan. The 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 Stock Units granted or credited under the Plan.
The number of Stock Units credited (and the Stock to which the
Participant is entitled upon distribution under the Management
Stock Plan) shall be subject to adjustment in accordance with
Section 7 hereof and Section 3(b) of the Management Stock
Plan. The Deferral Election and these Terms and Conditions
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 Management Stock 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 as a
general unsecured creditor.
5.
Dividend Equivalent Credits to Stock Unit Accounts .
As of each date on which dividends are paid with respect to the
Stock, a Participant’s Stock Unit Account shall be credited
with additional 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 Stock Units allocated to the
Participant’s Stock Unit Account as of that date divided by
(ii) the Fair Market Value (as defined in the Management Stock
Plan) of a share of Stock as of such date.
6.
Time and Method of Distribution of Stock .
(a)
Time of Distribution . The 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 employment for any reason with
the Company and its Subsidiaries, or
(2)
A date certain subsequent to .
Participant may not
change the election of a Payment Date unless otherwise permitted by
the Committee in accordance with the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended (the
“Code”).
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(b)
Method of Distribution . The 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 unless otherwise
permitted by the Committee in accordance with the requirements of
Section 409A of the Code.
(c)
Effect of Death, Disability or Change in Control .
Notwithstanding Sections 6(a) or (b) hereof, if the 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 Stock Units then credited to
Participant’s Stock Unit Account shall be settled by means of
a distribution of shares of Stock in a lump sum as soon as
administratively practicable. Notwithstanding the foregoing,
the settlement of Participant’s 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.
(d)
Change in Control . For purposes of these Terms and
Conditions, 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,
3
Ltd. or any successor thereto
(“BTMU”), (ii) an employee benefit plan of BTMU or
(iii) a corporation controlled by BTMU.
(e)
Form of Distribution . Stock Units may be settled only
in whole shares of Stock. Fractional shares shall be settled
in cash.
(f)
Section 409A . These Terms and Conditions and the
Deferral Election are intended to comply with the requirements of
Section 409A of the Code and shall be interpreted in accordance
therewith. No distribution otherwise required to be made to a
Participant under the Deferral Election and these Terms and
Conditions in connection with the Participant’s termination
of employment shall be made before the earlier of (i) the
expiration of the six (6)-month period measured from the date of
the Participant’s “separation from service” (as
such term is defined in Treasury Regulations issued under Section
409A of the Code) or (ii) the date of the Participant’s
death, if the Company in good faith determines that the Participant
is a “specified employee” within the meaning of that
term under Code Section 409A and that such delayed payment is
required in order to avoid a prohibited distribution under Code
Section 409A(a)(2). Any payment delayed pursuant to this
Section 6(f) shall be made in full upon the expiration of the
applicable Code
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