Exhibit 10.39
REPAY HOLDINGS CORPORATION
PERFORMANCE-BASED RESTRICTED STOCK UNITS
AWARD AGREEMENT
(Adjusted EBITDA)
THIS PERFORMANCE-BASED RESTRICTED STOCK UNITS AWARD AGREEMENT (the “Award Document”) is hereby granted as of the “Grant Date” set forth below by Repay Holdings Corporation, a Delaware corporation (“Repay”), to the “Grantee” identified below pursuant to the Repay Holdings Corporation Omnibus Incentive Plan (as amended, the “Plan”) and subject to the terms and conditions set forth therein and as set out in this Award Document. Capitalized terms used herein shall, unless otherwise required by the context, have the meaning ascribed to such terms in the Plan.
By action of the Committee, and subject to the terms of the Plan, the Grantee is hereby granted an Award of the number of performance-based Restricted Stock Units set forth below (“PSUs”), subject in all regards to the terms of the Plan and to the restrictions and risks of forfeiture set forth in this Award Document.
Grantee |
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Grant Date |
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Number of PSUs |
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NOW, THEREFORE, in consideration of the promises and the mutual covenants contained in this Award Document, Repay and the Grantee agree as follows:
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For purposes of this Award Agreement, “Incapacity” shall have the same definition as under any employment agreement between the Company or an Affiliate (or any successor thereof) and the Grantee or, if no such employment agreement exists or if such employment agreement does not contain any such definition or words of similar import, “Incapacity” shall have the same meaning as “Disability” under the Plan; and “Cause” and “Good Reason” shall have the same definitions as under the Plan.
If, prior to a Change in Control and the Vesting Date, the Grantee’s employment with Repay and its Affiliates (or any successor thereof) is terminated by Repay or an Affiliate (or any successor thereof) without Cause, by the Grantee for Good Reason, or on account of Grantee’s death or Incapacity, and such termination constitutes a separation from service (within the meaning of Section 409A of the Code), then this Award of PSUs shall become vested with respect to the employment requirement, notwithstanding the termination of Grantee’s employment with Repay and/or its Affiliates (or any successor thereof), and shall remain eligible to become earned and payable with respect to a Pro Rata Portion (as hereinafter defined) of the Award of PSUs on the same basis that the PSUs would have become earned, vested and payable had the Grantee’s employment with Repay and/or its Affiliates (or any successor thereof) not terminated. For avoidance of doubt, if a Change in Control occurs after the termination of Grantee’s employment under the circumstances described in this paragraph and prior to the Vesting Date, (i) the Pro Rata Portion of the Grantee’s Award of PSUs shall become earned, vested and payable as of the date of the Change in Control, at the Target level as described above, if the successor to Repay does not assume or provide for a substitute for this Award of PSUs, and (ii) the Pro Rata Portion of the Grantee’s Award of PSUs shall be converted into service-based RSUs, at the Target level as described above, if the successor company assumes or provides a substitute award for this Award of PSUs, and shall be payable as of the Change in Control. For purposes of this Agreement, “Pro Rata Portion” means a fraction, which may not exceed one (1), the numerator of which is the number of days from and including the first day of the Performance Period through the date of termination of Grantee’s employment with Repay and/or its Affiliates (or any successor thereof) which constitutes a separation from service (within the meaning of Section 409A of the Code), plus, if applicable, the number of days after such termination of employment for which the Grantee is entitled to receive continued base salary as severance under any employment agreement between Repay or any Affiliate (or successor thereof) and the Grantee, and the denominator of which is the number of days within the Performance Period.
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12. Section 409A. Notwithstanding any other provision of this Award Document, it is intended that payments hereunder will be exempt from or in compliance with Section 409A of the Code. For purposes of this Agreement, all rights to payments hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the Code. Notwithstanding the foregoing, should any payments made in accordance with this Award Document to a “specified employee” (as defined under Section 409A of the Code) be determined to be payments from a nonqualified deferred compensation plan subject to Section 409A of the Code that are payable in connection with the Grantee’s “separation from service” (as defined under Section 409A of the Code), and that are not exempt from Section 409A of the Code, such payments, to the extent otherwise payable within six (6) months after the Grantee’s separation from service, and to the extent necessary to avoid the imposition of taxes under Section 409A of the Code, will be paid in a lump sum on the earlier of the date that is six (6) months and one day after the Grantee’s date of separation from service or the date of the Grantee’s death.
13. Electronic Acceptance and Signature. By clicking the applicable acceptance box on the Equity Edge Online website, Grantee agrees to all of the terms and conditions described in this Award Document and the Plan. Such online acceptance constitutes Grantee’s electronic signature for the execution and delivery of this Agreement, which shall have the same force and effect as if Grantee manually signed this Award Document. The parties hereto may execute and deliver any additional documents in connection with this Award Document using procedures now or hereafter established by Repay (or any third party engaged by Repay to provide administrative services related to the Plan) for electronic signature and delivery.
[Signatures on next page]
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IN WITNESS WHEREOF, Repay has caused this Award Document to be executed on its behalf by its duly authorized officer on the day and year first indicated above.
REPAY HOLDINGS CORPORATION
By: ________________________________
Its: Chief Executive Officer
ELECTRONICALLY ACCEPTED BY: |
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Attachment A
Determination of the Vesting Percentage
The Vesting Percentage for the Performance Period shall be determined as follows:
Step #1 - -
Determine the “Adjusted EBITDA Achievement Percentage” for each of the three (3) Fiscal Years within the Performance Period. The “Adjusted EBITDA Achievement Percentage” for each Fiscal Year within the Performance Period is the growth in Repay’s Adjusted EBITDA for the applicable Fiscal Year compared to Repay’s Adjusted EBITDA for the immediately-preceding Fiscal Year, expressed as a percentage, and determined as follows:
Step #2 - -
Determine the “Payout Percentage” for each of the three (3) Fiscal Years within the Performance Period. The “Payout Percentage” for each applicable Fiscal Year within the Performance Period is the Payout Percentage (rounded down to the nearest one-hundredth of a percent) from the chart below - - at or above Threshold or Target and up to Maximum - - that corresponds to the Adjusted EBITDA Achievement Percentage for the applicable Fiscal Year, as determined in Step #1 above, and determined as follows:
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| Fiscal Year 2024 Adjusted EBITDA Achievement Percentage | Fiscal Year 2025 Adjusted EBITDA Achievement Percentage | Fiscal Year 2026 Adjusted EBITDA Achievement Percentage |
Maximum (Payout Percentage - - 200%) |
__% |
__% |
__% |
Target (Payout Percentage - - 100%) |
__% |
__% |
__% |
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Threshold (Payout Percentage - - 50%) |
__% |
__% |
__% |
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Step #3 - -
Determine the “Vesting Percentage” by dividing (i) the sum of the “Payout Percentages” for each of the three (3) Fiscal Years within the Performance Period, as calculated in Step #2 above, by three (3) (and rounding to the nearest one-hundredth of a percent).
Definitions. For purposes of the Award Document to which this Attachment A is attached, the following words will have the following meanings:
“Adjusted EBITDA” means, for each applicable Fiscal Year, Repay’s net income for the applicable Fiscal Year prior to interest expense, tax expense, depreciation and amortization, as adjusted to add back certain charges deemed to not be part of normal operating expenses, non-cash charges and/or non-recurring charges, such as loss on extinguishment of debt, loss on termination of interest rate hedge, non-cash change in fair value of contingent consideration, non-cash change in fair value of assets and liabilities, share-based compensation charges, transaction expenses, restructuring and other strategic initiative costs and other non-recurring charges, in all cases consistent with Repay’s calculations and determinations set forth in its applicable SEC reports.
“Fiscal Year” means Repay’s fiscal year ending December 31st of each calendar year.
“Performance Period” means the three (3)-year period beginning on January 1, 2024 and ending on December 31, 2026. For clarity, the Performance Period shall be comprised of the following: (i) Repay’s Fiscal Year ending December 31, 2024, (ii) Repay’s Fiscal Year ending December 31, 2025, and (iii) Repay’s Fiscal Year ending December 31, 2026.
Other Terms
The Committee shall adjust financial performance (up or down) at the end of the Performance Period to address any unexpected one-time items (i.e., restructurings, litigation, changes in accounting or tax laws or rates, etc.), as necessary to prevent any inequitable enlargement or dilution of the Grantee’s rights under this Award Document. Repay does not budget for M&A activity. Accordingly, in the event of material M&A activity during the Performance Period, the Committee will adjust the metrics to reflect the projected impact as a result of any such material M&A activity.
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