Contract
Exhibit 10.3
2014 Omnibus Incentive Plan
TSR PERFORMANCE Stock UNIT Award Agreement
THIS PERFORMANCE STOCK UNIT AWARD AGREEMENT (this “Agreement”), dated as of [_________] (the “Date of Grant”), is made by and between National Bank Holdings Corporation, a Delaware corporation (“NBHC”), and [_________] (“Participant”). Capitalized terms used herein without definition have the meanings ascribed to such terms in the National Bank Holdings Corporation 2014 Omnibus Incentive Plan (the “Plan”).
WHEREAS, NBHC has adopted the Plan to provide NBHC officers, employees, directors, and consultants an opportunity to participate in NBHC’s future performance and align the interests of such officers, employees, directors, and consultants with those of the shareholders of NBHC; and
WHEREAS, the Committee has determined that it would be in the best interests of NBHC and its shareholders to grant Participant a number of performance vesting Restricted Stock Units on the terms and subject to the conditions set forth in this Agreement and the Plan.
NOW THEREFORE, in consideration of the premises and the covenants of the parties contained in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree as follows:
(b) | Determination of Earned PSUs and Vesting and Settlement in Connection with a Change in Control. |
(iii) | Replacement Award. If, in connection with a Change in Control, Participant is provided with a Replacement Award, such Replacement Award shall vest on the Vesting Date and be settled at the time provided in Section 2(a), subject to Participant having not incurred a Termination of Employment prior to the Vesting Date; provided that, if, within two years following such Change in Control, Participant incurs a Termination of Employment without Cause, due to Participant’s resignation with Good Reason (as defined in Section 7(b)), or due to Participant’s death or Disability, then the Replacement Award shall become fully vested effective as of the date Termination of Employment, and NBHC shall issue one Share to Participant for each Replacement Award as soon as reasonably practicable, and in no event more than 10 days, following the date of Termination of Employment. |
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7. | Certain Definitions and Administration. |
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(i) | a material diminution in Participant’s annual base salary from that in effect immediately prior to a Change in Control; or |
(ii) | the assignment to Participant of any duties materially inconsistent with Participant’s positions (including status, offices, titles, and reporting requirements), authority, duties, or responsibilities, or any other action by NBHC that results in a material diminution in such positions, authority, duties, or responsibilities, in each case, from those in effect immediately prior to a Change in Control; |
provided that, in each case, (A) Participant provides written notice to NBHC of the existence of one or more of the conditions described in clauses (i) through (ii) within 30 days following Participant’s knowledge of the initial existence of such condition or conditions, specifying in reasonable detail the conditions constituting Good Reason; (B) NBHC and its Affiliates fail to cure such event or condition within 30 days following the receipt of such notice; and (C) Participant incurs a Termination of Employment within 30 days following the expiration of such cure period.
(a) | If the Company is required to prepare an accounting restatement due to material noncompliance of the Company in connection with any financial reporting requirement under the federal securities laws as a result of Participant’s misconduct, the Committee may require Participant to forfeit unvested PSUs and dividend equivalents, and/or to reimburse the Company for all Shares and amounts received under this Agreement from the Company during the 12-month period following the first public issuance or filing with the Securities and Exchange Commission (whichever first occurs) of the financial document embodying such financial |
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reporting requirement, and any amounts received with respect to, or amounts realized upon the settlement of the PSUs or the subsequent sale of the Shares that were issued upon settlement of the PSUs or the cancellation of the PSUs during that 12-month period; |
(b) | If the Committee shall determine that Participant has engaged in a serious breach of conduct, the Committee may require Participant to forfeit unvested PSUs, may terminate this Agreement and/or require Participant to repay any amounts realized upon the settlement of the PSUs or on the subsequent sale of the Shares that were issued upon settlement of the PSUs or the cancellation of the PSUs; and |
(c) | If Participant is found guilty of misconduct by any judicial or administrative authority in connection with any (i) formal investigation by the Securities and Exchange Commission or (ii) other federal or state regulatory investigation, then the Committee may require Participant to forfeit unvested PSUs and/or may require the repayment of any amounts realized upon the settlement of the PSUs or on the subsequent sale of the Shares that were issued upon settlement of the PSUs or the cancellation of the PSUs without regard to the timing of the determination of misconduct in relation to the timing of the settlement of the PSU or sale of Shares issued pursuant to the PSU. |
The foregoing provisions of this Section 8 shall cease to apply following a Change in Control, except as otherwise required by applicable law.
(a) | Confidentiality of this Agreement. Participant agrees to keep confidential the terms of this Agreement, unless and until such terms have been disclosed publicly other than through a breach by Participant of this covenant. This provision does not prohibit Participant from providing this information on a confidential and privileged basis to Participant’s attorneys or accountants for purposes of obtaining legal or tax advice or as otherwise required by law. |
(b) | Restrictive Covenants. The grant, vesting, and settlement of the PSUs pursuant to this Agreement shall be in partial consideration for, and subject to Participant’s continued compliance with, (i) any restrictive covenants set forth in an Individual Agreement or (ii) if there are no confidentiality and/or non-solicitation provisions in an Individual Agreement, the restrictive covenants as set forth in Annex B hereto. For the avoidance of doubt, if there are confidentiality and/or non-solicitation provisions in an Individual Agreement, the restrictive covenants in the Individual Agreement shall govern. |
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(c) | Section 409A of the Code. It is intended that the Awards granted pursuant to this Agreement and the provisions of this Agreement be exempt from or comply with Section 409A of the Code, and all provisions of this Agreement shall be construed and interpreted in a manner consistent with Section 11(e) of the Plan and the requirements for avoiding taxes or penalties under Section 409A of the Code. |
(d) | Waiver and Amendment. The Committee may waive any conditions or rights under, or amend any terms of, this Agreement and the PSUs granted hereunder; provided that any such waiver or amendment that would impair the rights of any Participant or any holder or beneficiary of any PSUs heretofore granted shall not to that extent be effective without the consent of Participant. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach. |
(e) | Notices. All notices, demands and other communications provided for or permitted hereunder shall be made in writing and shall be by registered or certified first-class mail, return receipt requested, facsimile, courier service or personal delivery: |
if to NBHC to:
National Bank Holdings Corporation
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Facsimile: (000)000-0000
Attention: General Counsel
if to Participant: at the address last on the records of NBHC.
All such notices, demands and other communications shall be deemed to have been duly given (i) when delivered by hand, if personally delivered; (ii) when delivered by courier, if delivered by commercial courier service; (iii) five business days after being deposited in the mail, postage prepaid, if mailed; and (iv) when receipt is mechanically acknowledged, if by facsimile.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
NATIONAL BANK HOLDINGS CORPORATION
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
PARTICIPANT
_________________________________________
[Participant Name]
[Signature Page to PSU Award Agreement]
Annex A
Performance Metrics
For purposes of this Agreement, the following terms have the meanings ascribed thereto below:
“Adjusted Relative TSR Factor” shall mean (a) if NBHC’s TSR for the Measurement Period is less than zero, then the lesser of (i) the Relative TSR Factor and (ii) 1.000; and (b) if NBHC’s TSR for the Measurement Period is equal to or greater than zero, then the Relative TSR Factor.
“Earned PSUs” shall mean the product of (a) the TSR Target Number multiplied by (b) the Adjusted Relative TSR Factor (such product shall be rounded to the nearest whole number).
“GAAP” shall mean the generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis.
“Measurement Period” shall mean the period commencing on January 1, 20[__] and ending on December 31, 20[end of 3rd fiscal year from commencement date].
“Relative TSR” shall mean the percentile ranking of NBHC’s TSR among the TSRs for the companies included in the KBW Regional Banking Index as of the first day of the Measurement Period; provided that any company that is not continuously included in the KBW Regional Banking Index during the Measurement Period shall be excluded from the determination of Relative TSR. The only exception shall be if a company included in the KBW Regional Banking Index as of the first day of the Measurement Period files for bankruptcy or is placed into receivership, they shall remain included in the determination of Relative TSR, with a TSR of -100%.
“Relative TSR Factor” shall mean the factor determined and certified by the Committee based on Relative TSR for the Measurement Period as follows:
Relative TSR for the Measurement Period (%ile) | Relative TSR Payment Factor |
0.000 | |
0.500 | |
1.000 | |
1.500 | |
| |
Linear interpolation shall be used between the applicable Relative TSR targets set forth above. In no event will the Relative TSR Factor exceed 1.500.
“TSR” shall mean, with respect to a particular company, total shareholder return for such company over the Measurement Period, calculated using the average closing stock price for the
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20 trading days prior to and including December 31, 20[__] and the average closing stock price for the 20 trading days prior to and including December 31, 20[+ 3 years], assuming dividends are reinvested in such company’s common stock on the ex-dividend date.
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Annex B
Restrictive Covenants
Notwithstanding the above confidentiality provisions, nothing in this Agreement, in any other agreement, or in the Company’s policies should be interpreted as prohibiting Participant from: (1) reporting possible violations of federal law or regulations, including any securities laws violations, to any governmental agency or entity, including but not limited to the Department of Justice, the U.S. Securities & Exchange Commission, the U.S. Congress, or any agency Inspector General; (2) making any other disclosures that are protected under the whistleblower provisions of federal law or regulations; or (3) otherwise fully participating in any federal whistleblower programs.
Please refer to the NBHC Associate Handbook, a copy of which is available upon request, regarding Participant’s rights related to the disclosure of the Company’s trade secrets.
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