TRUSTMARK CORPORATION FORM OF BONUS RESTRICTED STOCK AGREEMENT
Exhibit
10-w
TRUSTMARK
CORPORATION
FORM
OF
Granted
<<date>>
This
Bonus Restricted Stock Agreement (“Agreement”) is entered into as of
<<date>> pursuant to the 2005 Stock and Incentive Compensation Plan
(the “Plan”) of Trustmark Corporation (the “Company”) and evidences the grant of
Restricted Stock (as defined in the Plan), and the terms, conditions and
restrictions pertaining thereto, to <<name>> (the
“Associate”).
WHEREAS,
the Company maintains the Plan under which the Committee (as defined in the
Plan) may, among other things, award shares of the Company’s common stock
(“Stock”) to such key associates of the Company and its Subsidiaries as the
Committee may determine, subject to terms, conditions and restrictions as it may
deem appropriate; and
WHEREAS,
pursuant to the Plan, the Company, upon action by the Committee, has granted to
the Associate a restricted stock award conditioned upon the execution by the
Company and the Associate of a Bonus Restricted Stock Agreement setting forth
all the terms and conditions applicable to such award;
NOW
THEREFORE, in consideration of the benefits which the Company has derived from
the services rendered to it and its Subsidiaries by the Associate and of the
covenants contained herein, the parties hereby agree as follows:
1.
Award of
Shares. Under the terms of the Plan, the Company awarded to
the Associate a restricted stock award (the “Award”) effective on
<<date>> (the “Award Date”), covering <<shares>>
shares of the Company’s Stock (the “Award Shares”) subject to the terms,
conditions, and restrictions set forth in this
Agreement.
2.
Period of
Restriction and
Vesting in the Award Shares.
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(a)
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The period of
restriction (the “Period of
Restriction”) applicable to the
Award Shares is the period from the
Award Date through the last day of the TARP Period. The “TARP
Period” ends on the day all Company obligations arising from
financial assistance provided to the Company under
the Troubled Asset Relief Program Capital Purchase Program (the
“CPP”) created by the U.S. Department of the Treasury (the “Treasury
Department”) pursuant to authority granted under the Emergency Economic
Stabilization Act of 2008, as amended (the “EESA”), are satisfied as described in
Section 111(b)(3)(D)(i) of the EESA, excluding
any period in which the Treasury Department only holds warrants to
purchase common stock as provided in Section 111(a)(5) of the
EESA.
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(b)
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The
Award Shares may not be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated, otherwise than by will or by the laws of
descent and distribution, during the Period of
Restriction.
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(c)
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The
restrictions applicable to the Award Shares shall automatically
terminate, the Award Shares shall be fully vested and the Award
Shares shall be free of restrictions and freely transferable on the last
day of the TARP Period.
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3.
Stock
Certificates.
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(a)
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The
Company shall issue the Award Shares either: (i) in certificate form as
provided in Paragraph 3(b) below; or (ii) in book entry form, registered
in the name of the Associate with notations regarding the applicable
restrictions on transfer imposed under this
Agreement.
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(b)
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Any
certificates representing Award Shares shall be held by the Company until
such time as the restrictions hereunder lapse and such Award Shares become
transferable, or are forfeited hereunder. Such certificates
shall bear the following legend:
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The sale
or other transfer of the Shares of Stock represented by this certificate,
whether voluntary, involuntary, or by operation of law, is subject to certain
restrictions on transfer set forth in the Trustmark Corporation 2005 Stock and
Incentive Compensation Plan, in the rules and administrative procedures adopted
pursuant to such Plan, and in a Bonus Restricted Stock Agreement dated
<<date>>. A copy of the Plan, such rules and procedures,
and such Bonus Restricted Stock Agreement may be obtained from the Secretary of
Trustmark Corporation.
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(c)
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Promptly
after the lapse of the restrictions with respect to any of the Award
Shares, the Company shall, as applicable, either remove the notations on
any of the Award Shares issued in book entry form as to which the
restrictions have lapsed or deliver to the Associate a certificate or
certificates evidencing the number of Award Shares as to which the
restrictions have lapsed.
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(d)
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The
Committee may require, concurrently with the execution and delivery of
this Agreement, the Associate to deliver to the Company an executed stock
power, in blank, with respect to the Award Shares. The
Associate, by acceptance of the Award, shall be deemed to appoint, and
does so appoint by execution of this Agreement, the Company and each of
its authorized representatives as the Associate’s attorney(s) in fact to
effect any transfer of forfeited shares (or shares otherwise reacquired or
withheld by the Company hereunder), or any adjustment to the number of
Award Shares pursuant to Paragraph 13 below, to the Company as may be
required pursuant to the Plan or this Agreement and to execute such
documents as the Company or such representatives deem necessary or
advisable in connection with any such
transfer.
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4.
Voting
Rights. During the Period of Restriction, the Associate may
exercise full voting rights with respect to the Award Shares.
5.
Dividends and Other
Distributions. During the Period of Restriction, all dividends
and other distributions paid with respect to the Award Shares in cash or
property other than shares of the Company’s Stock shall be payable to the
Associate at the same time and under the same conditions as payable to other
shareholders of the Company generally. During the Period of
Restriction, all dividends and other distributions paid with respect to the
Award Shares in shares of the Company’s Stock shall be registered in the name of
the Associate, held by the Company until payable or forfeited pursuant hereto,
shall be subject to the same restrictions on transferability and vesting as the
Award Shares with respect to which they were paid and shall, to the extent
vested, be paid when and to the extent the underlying Award Shares are vested
and freed of restrictions.
6.
Forfeiture
of Award
Shares. If the Period of Restriction applicable to the Award
Shares does not end within ten (10) years after the Award Date, then the Award
Shares shall be automatically forfeited to the Company.
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7.
Withholding
Taxes. The Company, or any of its Subsidiaries, shall have the
right to retain and withhold the amount of taxes required by any government to
be withheld or otherwise deducted and paid with respect to the Award
Shares. The Committee may require the Associate or any successor in
interest to pay or reimburse the Company, or any of its Subsidiaries, for any
such taxes required to be withheld by the Company, or any of its Subsidiaries,
and to withhold any distribution in whole or in part until the Company, or any
of its Subsidiaries, is so paid or reimbursed. In lieu thereof, the
Company, or any of its Subsidiaries, shall have the right to withhold from any
other cash amounts due or to become due from the Company, or any of its
Subsidiaries, to or with respect to the Associate an amount equal to such taxes
required to be withheld by the Company, or any of its Subsidiaries, to pay or
reimburse the Company, or any of its Subsidiaries, for any such taxes or to
retain and withhold a number of shares of the Company’s Stock having a market
value not less than the amount of such taxes and cancel any such shares so
withheld in order to pay or reimburse the Company, or any of its Subsidiaries,
for any such taxes. The Associate or any successor in interest is
authorized to deliver shares of the Company’s Stock in satisfaction of minimum
statutorily required tax withholding obligations (whether or not such shares
have been held for more than six months and including shares acquired pursuant
to this Award if the restrictions thereon have lapsed).
8.
Administration of
Plan. The Plan is administered by the Committee appointed by
the Company’s Board of Directors. The Committee has the authority to
construe and interpret the Plan, to make rules of general application relating
to the Plan, to amend outstanding awards pursuant to the Plan, and to require of
any person receiving an award, at the time of such receipt or lapse of
restrictions, the execution of any paper or the making of any representation or
the giving of any commitment that the Committee shall, in its discretion, deem
necessary or advisable by reason of the securities laws of the United States or
any State, or the execution of any paper or the payment of any sum of money in
respect of taxes or the undertaking to pay or have paid any such sum that the
Committee shall, in its discretion, deem necessary by reason of the Internal
Revenue Code or any rule or regulation thereunder, or by reason of the tax laws
of any State.
9.
Plan and
Prospectus. This Award is granted pursuant to the Plan and is
subject to the terms thereof (including all applicable vesting, forfeiture,
settlement and other provisions). A copy of the Plan, as well as a
prospectus for the Plan, has been provided to the Associate, and the Associate
acknowledges receipt thereof.
10.
Notices. Any
notice to the Company required under or relating to this Agreement shall be in
writing and addressed to:
| Trustmark Corporation | Mailing Address | ||
| ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ▇.▇. ▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attention: Secretary |
Any
notice to the Associate required under or relating to this Agreement shall be in
writing and addressed to the Associate at his or her address as it appears on
the records of the Company.
11.
Construction. This
Agreement shall be administered, interpreted and construed in accordance with
the applicable provisions of the Plan. In addition, this Agreement is
intended to provide and evidence a grant of long term restricted stock which
does not fully vest during the period in which any obligation arising from
financial assistance provided to the Company remains outstanding as described in
Section 111(b)(3)(D)(i) of the EESA, excluding any period in
which the Treasury Department only holds warrants to purchase
common stock
as provided in Section 111(a)(5) of the EESA, and shall be interpreted
and administered as such.
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12.
Compliance with
Section 409A of
the Internal Revenue Code.
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(a)
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It
is intended that any right or benefit which is provided pursuant to or in
connection with this Award which is considered to be nonqualified deferred
compensation subject to Section 409A (“Section 409A”) of the Internal
Revenue Code (a “409A benefit”) shall be provided and paid in a manner,
and at such time (i.e., at the applicable event
described herein if a Section 409A payment event or otherwise at the first
Section 409A payment event thereafter consisting of a fixed
time,
if any,
a Section 409A disability, a Section 409A separation from service (as
described below), or a Section 409A change with respect to the
Associate in the ownership or
effective control of the Company or in the ownership of a substantial
portion of its assets of the Company and including, in the discretion
of the Committee or its delegate, any applicable
Section 409A de minimis limited cashout
payment
rule permitted under
Treasury Reg. Section 1.409A-3(j)(4)(v)) and in such
form, as complies with the applicable requirements of Section 409A to
avoid the unfavorable tax consequences provided therein for
non-compliance. Consequently, this Agreement is intended to be
administered, interpreted and construed in accordance with the applicable
requirements of Section 409A. Notwithstanding the foregoing,
the Associate and his or her successor in interest shall be solely
responsible and liable for the satisfaction of all taxes and penalties
that may be imposed on the Associate or his or her successor in interest
in connection with this Agreement (including any taxes and penalties under
Section 409A); and neither the Company nor any of its affiliates shall
have any obligation to indemnify or otherwise hold the Associate or his or
her successor in interest harmless from any or all of such taxes or
penalties.
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(b)
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Except
as permitted under Section 409A, any 409A benefit payable to the Associate
or for his or her benefit with respect to the Award may not be reduced by,
or offset against, any amount owing by the Associate to the Company or any
of its affiliates.
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(c)
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To
the extent that entitlement to payment of any 409A benefit occurs due to
termination or cessation of employment, termination or cessation of
employment shall be read to mean “separation from service” (within the
meaning of Section 409A and as applicable to the Company and its
affiliates). Where entitlement to payment occurs by reason of
such termination or cessation of employment and the Associate is a
“specified employee” (within the meaning of Section 409A, as applicable to
the Company and its affiliates and using the identification methodology
selected by the Company from time to time in accordance with Section 409A)
on the date of his or her “separation from service”, then payment of such
409A benefit shall be delayed (without interest) until the first business
day after the end of the six month delay period required under Section
409A or, if earlier, after the Associate’s death. In
determining separation from service, separation from service is determined
based on the “Separation from Service” definition in the Trustmark
Corporation Deferred Compensation Plan (as in effect on December 31,
2008), which provides, in part, that in determining separation from
service as an employee, separation from service occurs when it is
reasonably anticipated that no further services would be performed after
that date or that the level of services the Associate would perform after
that date (whether as an employee or independent contractor) would
permanently decrease to less than 50% of the average level of bona fide
services performed over the immediately preceding thirty-six (36) month
period.
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13. CPP Limitations. The
Company has participated in the CPP; and the Company is required to comply with
the requirements of Section 111(b) of the EESA, as amended from time to time,
and the CPP with respect to the compensation of certain current and future
employees of the Company (as determined for purposes of the EESA and the
guidance and regulations issued by the Treasury Department with respect to the
CPP (the “CPP Requirements”)), in accordance with the CPP
Requirements. The Associate acknowledges and understands that this
Agreement shall be administered, interpreted and construed and, if and where
applicable, benefits provided hereunder shall be limited, deferred and/or
subject to repayment to the Company in accordance with the CPP
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Requirements
and Section 111(b) of the EESA, as amended from time to time, to the extent
legally applicable with respect to the Associate, as determined by the Committee
in its discretion. The Committee shall have the right unilaterally to
amend this Agreement to effect or document any changes or additions which in its
view are necessary or appropriate to comply with the CPP Requirements and
Section 111 of the EESA, as amended from time to time.
To
evidence their agreement to the terms, conditions and restrictions hereof, the
Company and the Associate have signed this Agreement as of the date first above
written.