Exhibit 10.2
F.N.B. CORPORATION
PERFORMANCE RESTRICTED STOCK AWARD AGREEMENT
(PURSUANT TO 2007 INCENTIVE COMPENSATION PLAN)
This Performance Restricted Stock Award Agreement (the "Agreement") is made
and entered into as of July 18, 2007 (the "Award Date") between F.N.B.
CORPORATION, a Florida corporation (the "Company"), and ________________ (the
"Employee").
W I T N E S S E T H T H A T:
WHEREAS, at a meeting of the Compensation Committee (the "Committee") of
the Board of Directors of the Company (the "Board") held on the Award Date, the
Committee, pursuant to the F.N.B. Corporation 2007 Incentive Compensation Plan
(the "Plan"), awarded to certain employees of the Company, employees of First
National Bank of Pennsylvania (the "Bank") and employees of other non-Bank
"Affiliates" (the term "Affiliates" is defined in the Plan), shares of the
Company's Common Stock, par value $0.01 per share (the "Stock");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and intending to be legally bound hereby, each of the parties
covenants and agrees as follows:
1. Restricted Stock Award. Subject to the terms and conditions of the Plan
and this Agreement, the Company, pursuant to the Plan, a copy of which is
incorporated herein by reference thereto and made a part hereof as though set
forth in full herein (refer to Section 5 herein for a copy of the Plan), hereby
confirms a restricted stock award to the Employee of an aggregate of _______
shares of Stock (the "Shares").
2. Terms and Conditions. The award of Shares to the Employee is subject to
the following terms and conditions.
(a) Vesting and Forfeiture
The Employee's right to the Shares will vest subject to the following
terms and conditions:
(i) Performance Restricted Stock Award Vesting. The Employee's
right to the Shares will vest (together with all dividends
and/or shares purchased on account of such Shares under the
Company Dividend Reinvestment and Voluntary Stock Purchase Plan
("DRP")) and the Shares will become freely transferable on
January 16, 2011 (the "Vesting Date"), if during the four (4)
year period beginning on January 1, 2007, and ending on
December 31, 2010, (the "Performance Period"), the Company's
average return on average tangible equity ("Average ROATE") is
within the Top Quartile of peer financial institutions as
described in Section 2(a)(ii) herein, and the Employee has
remained continuously employed by the Company, the Bank or any
of its non-Bank Affiliates, from the Award Date through the
Vesting Date (the "Vesting Period"), or on an earlier date in
the event of a "Change in Control" or "Termination of
Employment" in accordance with Section 2(a)(iii) and Section
2(b) herein, respectively.
(ii) Performance Goal. For purposes of this Agreement the
calculation of the Company's Average ROATE for the Performance
Period shall be computed by taking the Company's average net
income during the Performance Period, adjusted for the average
after-tax effect of the amortization of the Company's
acquisition related intangible assets during the Performance
Period, divided by the Company's average shareholders' equity
during the Performance Period minus the Company's acquisition
related average intangible assets during the Performance
Period. Also, for purposes of this Agreement the term "Top
Quartile" shall mean that the Company's Average ROATE during
the Performance Period meets or exceeds the 75th percentile of
the Average ROATE of surviving financial institutions for the
forty-eight (48) month period beginning on October 1, 2006 and
ending on September 30, 2010, from the list of peer financial
institutions and bank holding companies identified in Schedule
1 attached hereto, as approved by the Committee at a meeting
held on January 24, 2007 ("Average ROATE Performance Goal").
(iii) Accelerated Vesting - Change in Control or Sale. In the event
of a "(i) Change in Control," as defined in the Plan, prior to
the Vesting Date and the Employee has remained continuously
employed by Company, Bank or non-Bank Affiliate since the Award
Date, the restrictions on the Shares shall lapse and all such
Shares (references to "Shares" in this Agreement shall also
include all dividends and/or shares of Stock purchased under
the DRP on account of such Shares) shall immediately vest. All
of Employee's Shares shall immediately vest upon the sale of
all or substantially all of the common stock or assets (a
"Sale") of the Bank prior to the Vesting Date, provided the
Employee remains continuously employed by the Bank, the Company
or non-Bank Affiliate. In the event of a Sale of a non-Bank
Affiliate which employed the Employee on the Award Date and the
Employee has been continuously employed by the non-Bank
Affiliate, the Company or the Bank since the Award Date, the
Shares shall vest in an amount not less than the pro rata
amount of the Shares awarded under this Agreement for the
period from the Award Date to the consummation date of the Sale
of the non-Bank Affiliate, calculated by taking the Shares
times the fraction, the numerator of which is the actual full
number of months the Employee worked from the Award Date
(Employee shall be credited with working the full month of July
2007) to the consummation date of the Sale of the non-Bank
Affiliate, and the denominator of which is forty-two (42),
representing the number of full months (including July 2007) in
the Vesting Period. (By way of example and for avoidance of
doubt, if the non-Bank Affiliate is sold on
-2-
April 1, 2009, the Employee would be entitled to vesting of
one-half the Shares (21 months worked/42 months total in
Vesting Period) under this Agreement).
For purposes of this Agreement the termination of the Employee
following execution of a definitive agreement contemplating a
"Change in Control" or Sale of the Bank or non-Bank Affiliate,
without "Cause" (as defined in the Plan), prior to the
consummation date of the "Change in Control" or such Sale shall
result in full vesting (or pro-rata vesting for the time the
Employee worked between the Award Date and the Sale
consummation date in the case of the Sale of a non-Bank
Affiliate) of the Shares on the consummation date of a "Change
in Control" or "Sale".
(iv) In accordance with the terms of the Plan the Committee may
determine the occurrence of a "significant event" which the
Committee expects to have a substantial effect on the
measurement of the Average ROATE Performance Goal specified in
this Agreement and therefore, the Committee has sole discretion
to establish a revised Average ROATE measurement or other
performance measurement as it shall deem necessary and
equitable for purposes of maintaining the objective of the
Performance Restricted Stock Award contemplated by this
Agreement. Such modification of the performance measurement
specified in this Agreement by the Committee shall ensure that
the Company's Average ROATE Goal or measurement thereof, or
establishment of new performance measurement shall in no event
be detrimental to the Employee and shall be consistent with any
adjustment to the Company's capital structure during the
Performance Period. Such "significant events" contemplated
herein may include, but not be limited to, capital raises,
stock splits, stock buybacks, sale of business units, business
restructuring charges, merger related costs, non-recurring
activities, and other comparable events.
(b) Termination of Employment; Forfeiture or Accelerated Vesting of
Shares. Upon the effective date of the termination of Employee's
employment with the Company, Bank or non-Bank Affiliate by which the
Employee is employed, all Shares then subject to a risk of forfeiture
shall immediately be forfeited and returned to the Company by the
Administrator of the DRP without consideration or further action being
required of the Company; except in the event such termination is a
result of the following circumstances:
(1) Death. The Restrictions on the Shares shall lapse and the
Shares shall automatically vest immediately as a result of
Employee's death during the Vesting Period.
-3-
(2) Disability. Provided the Company's financial performance during
the Performance Period meets or exceeds the Average ROATE
Performance Goal the Employee shall be entitled to vesting of
not less than the pro rata amount of the Shares on the Vesting
Date for the number of full months of the Vesting Period
(Employee shall be credited with working the full month of July
2007) the Employee worked before becoming a "Disabled
Participant" (as defined in the Plan). The number of Employee
Shares that Employee is entitled to have vest under this
Agreement as a result of becoming a "Disabled Participant"
shall be calculated by multiplying the Shares by the fraction,
the number of which is the full number of months the Employee
worked during the Vesting Period before the date Employee
became a "Disabled Participant," and the denominator of which
is forty-two (42), representing the total number of months in
the Vesting Period.
(3) Early Retirement. Provided the Company's financial performance
during the Performance Period meets or exceeds the Average
ROATE Performance Goal the Employee shall be entitled to
vesting of not less than the pro rata amount of the Shares on
the Vesting Date for the number of full months of the Vesting
Period (Employee shall be credited with working the full month
of July 2007) during which Employee remained employed until the
effective date of the Employee's "Early Retirement," as this
term is defined in the Plan (from the Award Date to the actual
date of the Employee's Early Retirement). The number of
Employee Shares that shall vest under this Agreement upon
Employee's "Early Retirement" shall be calculated by
multiplying the Shares by the fraction, the numerator of which
is the full number of months the Employee worked during the
Vesting Period before the Employee's actual Early Retirement
date, and the denominator of which is forty-two (42),
representing the total number of months in the Vesting Period.
(4) Normal Retirement. Provided the Company's financial performance
during the Performance Period meets or exceeds the Average
ROATE Performance Goal the restrictions on the Shares shall
lapse and the Shares shall fully vest on the Vesting Date in
the event of the Employee's "Normal Retirement," occurs during
the Vesting Period, as that term is defined in the Plan, except
that if the Employee's Normal Retirement occurs in calendar
year 2007, the number of Shares that shall vest will be pro
rated by multiplying the Shares by the fraction,
-4-
the numerator of which is the number of actual number of full
months the Employee worked in 2007 between the Award Date,
(Employee shall be credited with having worked the full month
of July 2007) and December 31st, and the denominator of which
is forty-two (42) representing the total number of months in
the Vesting Period.
(c) Enrollment of Shares in DRP. All Shares shall be enrolled in the
Employee's name in the Company's DRP and must remain enrolled in the
DRP throughout the Vesting Period applicable to such Shares. On the
date on which the transfer restrictions on any Shares lapse, the
Company shall notify the DRP Administrator as to the name of the
Employee and the number of the Employee's Shares as to which the
restrictions have lapsed. The Employee shall be entitled to exercise
all rights to the unrestricted Shares, including the right to withdraw
such Shares from the DRP, in accordance with the terms of the DRP.
Upon withdrawal of the unrestricted Shares the Company shall require
Employee to remit to the Company an amount sufficient to satisfy any
tax withholding requirements prior to the delivery or sale of any
certificate for the unrestricted Shares, or the Company shall withhold
an appropriate amount from the unrestricted Shares to be delivered or
sold sufficient to satisfy all or a portion of such tax withholding
requirements.
(d) Voting and Dividend Rights. The Employee shall have full voting rights
with respect to all Shares, including the Shares that have not yet
vested, unless and until such Shares are forfeited to the Company. In
addition, the Employee shall have full cash and stock dividend rights
with respect to all Shares; provided that (i) all such dividends or
other distributions as to Shares enrolled in the DRP shall be credited
to the Employee's account in the DRP and, in the case of cash
dividends, used to purchase shares of Stock pursuant to the DRP, and
(ii) all Shares credited to the Employee as a result of such cash or
stock dividends shall be subject to the same restrictions on
transferability and the same risk or forfeiture as the Shares that are
the basis for the dividend.
(e) Transfer Restrictions. The Employee may not transfer any Shares
awarded hereunder during the Vesting Period applicable to such Shares,
that is, until the Employee's right to such Shares has vested and such
Shares are no longer subject to a risk of forfeiture. The Employee
may, from time to time, name any beneficiary or beneficiaries to whom
any benefit under this Agreement is to be paid in case of his or her
death before he or she receives any or all of such benefit. Each
designation will revoke all prior designations by the Employee, shall
be in a form prescribed by the Committee and will be effective only
when filed by the Employee in writing with the Company during his or
her lifetime. In the absence of any such designation, benefits
remaining unpaid at the Employee's death shall be paid to his or her
estate, subject to the terms of the Plan.
-5-
(f) No Right to Continued Employment. This Agreement shall not confer upon
the Employee any right with respect to continuance of employment by
the Company or a non-Bank Affiliate, nor shall it interfere in any way
with the right of his/her employer to terminate his/her employment at
any time.
(g) Compliance With Laws and Regulations. The award of Shares evidenced
hereby shall be subject to all applicable federal and state laws,
rules, and regulations and to such approvals by any government or
regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of stock
prior to (i) the listing of such shares on any
-6-
stock exchange on which the Stock may then be listed and (ii) the
effectiveness of any registration statement with respect to such
shares that counsel for the Company deems necessary or appropriate.
3. Investment Representation. The Committee may require the Employee to
furnish to the Company, prior to the issuance of any Shares, an agreement (in
such form as the Committee may specify) in which the Employee represents that
the Shares acquired by him or her are being acquired for investment and not with
a view to the sale or distribution thereof.
4. Withholding. The Company, the Bank or the non-Bank Affiliate that
employs the Employee shall make appropriate withholdings, if any, from his/her
compensation for federal, state and local taxes payable as a result of the award
or vesting of Shares evidenced hereby.
5. Employee Bound by Plan. The Employee hereby acknowledges receipt of an
e-mail from the Company which includes attachments containing copies of (a) the
Plan, (b) the Prospectus relating to the Plan in connection with the
registration of the Shares under the Securities Act of 1933, as amended, and (c)
the Company's current Prospectus relating to the DRP, and the Employee agrees to
be bound by all the terms and provisions thereof. The Employee may receive a
free hard copy of these Plan prospectus documents by requesting a copy from the
Company Human Resources Department. To the extent of any inconsistency between
the terms of this Agreement and the terms of the Plan, the latter shall govern.
All capitalized terms used herein and not defined herein shall have the meanings
ascribed to such terms in the Plan.
6. Notices. Any notice hereunder to the Company shall be addressed to it at
its office, F.N.B. Corporation, One South Hermitage Road, Hermitage,
Pennsylvania 16148, c/o Human Resources Department, and any notice hereunder to
the Employee shall be addressed to him/her at his/her address provided to
Company from time to time, subject to the right of either party to designate at
any time hereafter in writing some other address.
7. Construction and Dispute Resolution. This Agreement shall be governed by
and construed in accordance with the internal laws of the Commonwealth of
Pennsylvania, without giving effect to principles of conflict of laws. All
headings in this Agreement have been inserted solely for convenience of
reference only, are not to be considered a part of this Agreement, and shall not
affect the interpretation of any of the provisions of this Agreement. In the
event of any dispute or claim relating to or arising out of this Agreement, the
Employee and the Company agree that all such disputes shall be fully and finally
resolved by binding arbitration conducted by the American Arbitration
Association ("AAA") in Mercer County, Pennsylvania in accordance with the AAA's
National Rules for the Resolution of Employment Disputes. The Employee
acknowledges that by accepting this arbitration provision he is waiving any
right to a jury trial in the event of a covered dispute. The arbitrator may, but
is not required, to order that the prevailing party shall be entitled to recover
from the losing party its attorneys' fees and costs incurred in any arbitration
arising out of this Agreement.
-7-
8. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original, but both of which together
shall constitute one and the same instrument.
-8-
IN WITNESS WHEREOF, F.N.B. Corporation has caused this Restricted Stock
Award Agreement to be executed on its behalf by its authorized officer and the
Employee has executed this Restricted Stock Award Agreement, both as of the day
and year first above written.
F.N.B. CORPORATION
By:
-------------------------------------
Date:
-------------------------------------
-------------------------------------------
Employee
Date:
-------------------------------------
-9-