Exhibit 10.4
F.N.B. CORPORATION
2007 AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
(PURSUANT TO 2007 INCENTIVE COMPENSATION PLAN)
This Amended and Restated Restricted Stock Award Agreement (the
"Amended Agreement") is made and entered into effective as of January 16, 2008
(the "Award Date") between F.N.B. CORPORATION, a Florida corporation (the
"Company"), and Stephen J. 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 12,500 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 is eligible to retire from
the Company on 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. Award of Restricted Stock. Subject to the terms and conditions of
the Plan and this Amended Agreement, the Company, pursuant to the Plan, 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 the award to the Employee, on the date first written above, of an
aggregate of 12,500 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. Except for accelerated vesting of the
Shares which may occur pursuant to Section 2(b) and (c) of this
Agreement, the Employee shall be entitled to immediate vesting
effective on the date Employee resigns of not less than the pro rata
amount of the Shares (together with all dividends and/or shares of
stock purchased on account of such Shares under the Company Dividend
Reinvestment and Voluntary Stock Purchase Plan ("DRP") for the number
of full months of the period between the Award Date and January 16,
2010 ("Vesting Period") during which Employee remained employed by the
Company until the actual date on which Employee ceased to be employed
by the Corporation pursuant to his Employment Agreement dated December
31, 2005, as amended and Employee's Consulting Agreement dated December
31, 2005. The number of Shares that shall vest under this Agreement
shall be calculated by multiplying the Shares by the fraction, the
numerator of which is the number of full months the Employee worked
during the Vesting Period before the effective date of his resignation,
and the denominator of which is thirty (30), representing the total
number of months in the Vesting Period.
(b) Accelerated Vesting - Change in Control or Sale. In the event of a
"Change in Control," as defined in the Plan, prior to the Vesting Date,
if the Employee has remained employed by the Company until the actual
date on which Employee ceased to be employed by the Company pursuant to
his Employment Agreement dated December 31, 2005, as amended, and
Employee's Consulting Agreement dated December 31, 2005 the
restrictions on the Shares shall lapse and all of the Shares
(references to "Shares" in this Amended Agreement shall also include
all dividends and/or shares of Stock purchased under the DRP on account
of such Shares) shall immediately
vest. All restrictions on the Shares shall lapse and such Shares shall
vest immediately upon the sale of all or substantially all of the
common stock or assets (a "Sale") of the Bank prior to the Vesting
Date.
(c) Termination Following Execution of "Change in Control" Agreement.
For purposes of this Amended Agreement the termination of the Employee
following execution of a definitive agreement contemplating a "Change
in Control" of the Company or the Bank, without "Cause" (as defined in
the Plan), prior to the consummation date of the "Change in Control"
shall result in the full vesting of the Shares on the consummation date
of a "Change in Control."
(d) Termination of Employment; Forfeiture or Acceleration of Shares.
Upon the effective date of the termination of Employee's employment
with the Company or the Bank, 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. The restrictions on the Shares shall
lapse and the Shares shall automatically vest
immediately as a result of Employee becoming a
"Disabled Participant" (as that term is defined in
the Plan) during the Vesting Period.
(e) 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. On
the Vesting Date 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.
(f) 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 of forfeiture as the Shares that are
the basis for the dividend.
(g) 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
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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.
(h) No Right to Continued Employment. This Amended Agreement shall not
confer upon the Employee any right with respect to continuance of
employment by the Company or an Affiliate, nor shall it interfere in
any way with the right of his/her employer to terminate his/her
employment at any time.
(i) 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) 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 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 request a
hard copy of these documents by requesting a copy from the Company's Human
Resources Department. To the extent of any inconsistency between the terms of
this Agreement and the terms of the Plan, the Plan 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 Amended 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 Amended Agreement have been inserted solely for
convenience of reference only, are not to be considered a part of this Amended
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 Amended Agreement, the Employee and the Company agree that all such
disputes shall be fully and finally resolved by binding arbitration conducted by
the
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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 Amended 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.
IN WITNESS WHEREOF, F.N.B. Corporation has caused this Amended and
Restated Restricted Stock Award Agreement to be executed on its behalf by its
authorized officer and the Employee has executed this Amended and Restated
Restricted Stock Award Agreement, both as of the day and year first above
written.
F.N.B. CORPORATION
By:
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Robert V. New, Jr.
President
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Stephen J. Gurgovits
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