Exhibit 10.3
F.N.B. CORPORATION
2007 AMENDED AND RESTATED
PERFORMANCE RESTRICTED STOCK AWARD AGREEMENT
(PURSUANT TO 2007 INCENTIVE COMPENSATION PLAN)
This Amended and Restated Performance Restricted Stock Award Agreement
(the "Amended 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 Stephen Gurgovits (the "Employee").
W I T N E S S E T H T H A T:
WHEREAS, on July 18, 2007 the Compensation Committee (the "Committee")
of the Board of Directors of the Company awarded Employee 18,570
performance-based shares of restricted stock pursuant to the terms of a
Restricted Stock Agreement ("Agreement") made effective on the same date;
WHEREAS, in view of the fact that Employee plans to retire as Chief
Executive Officer of the Company or April 1, 2008 the Committee desires to amend
and restate the Agreement effective ______________, as follows:
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 Amended 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 18,750 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 shall be entitled to vesting of not less
than the pro rata amount of Shares (together with all
dividends and/or shares purchased on account of such
Shares under the Company Dividend Reinvestment and
Voluntary Stock Purchase Plan ("DRP")) on the January
16, 2011 ("Vesting Date") for the number of full
months the Employee was employed during the four (4)
year period beginning on January 1, 2007, and ending
on December 31, 2010 ("Performance Period") before
Employee's employment with the Company or any of its
affiliates was terminated without "Cause" (as term is
defined in the Plan), provided 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. The number of
Employee Shares that Employee is entitled to have
vest under this Agreement as a result of his
employment being terminated without "Cause" during
the Performance Period shall be calculated by
multiplying the Shares by the fraction, the number of
which is the number of full months the Employee
worked during the Performance Period before the
actual date of Employee's employment termination, and
the denominator of which is forty-two (42),
representing the total number of months in the
Performance Period.
(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 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).
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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.
(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.
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(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.
(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 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)
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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.
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.
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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:
----------------------------
Brian Lilly
Date:
---------------------------
---------------------------------
Stephen Gurgovits
Date:
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SCHEDULE 1
LTIP - 2008 PEER GROUP
TICKER COMPANY STATE
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SRCE 1St Source Corp Indiana
AMFI Amcore Financial Inc Illinois
CBC Capitol Bancorp Ltd Michigan
CHFC Chemical Financial Corp Michigan
CRBC Citizens Republic Bancorp Michigan
CBSH Commerce Bancshares Inc Missouri
CBU Community Bank System Inc. New York
FCF First Commonwlth Finl Cp Pennsylvania
FFBC First Finl Bancorp Inc Ohio
FRME First Merchants Corp Indiana
FMBI First Midwest Bncorp Inc. Illinois
FMER FirstMerit Corp Ohio
FULT Fulton Financial Corp Pennsylvania
HNBC Harleysville Natl Corp Pennsylvania
HTLF Heartland Financial Usa Inc Iowa
IBCP Independent Bank Corp Michigan
IFC Irwin Financial Corp Indiana
MBFI MB Financial Inc Illinois
NBTB N B T Bancorp Inc New York
NPBC National Penn Bancshares Inc. Pennsylvania
ONB Old National Bancorp Indiana
PRK Park National Corp Ohio
PVTB Privatebancorp Inc Illinois
PBKS Provident Bankshares Corp Maryland
STBA S & T Bancorp Inc Pennsylvania
SBNY Signature Bank New York
SNBC Sun Bancorp Inc New Jersey
SUSQ Susquehanna Bancshares Inc Pennsylvania
TAYC Taylor Capital Group Inc Illinois
TCB TCF Financial Corp Michigan
UMBF UMB Financial Corp Missouri
UBSI United Bankshares Inc West Virginia
VLY Valley National Bancorp New Jersey
WSBC Wesbanco Inc West Virginia
WL Wilmington Trust Corp Delaware
WTFC Wintrust Financial Corp Illinois
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