Heartland Financial USA, Inc.
Exhibit
10.23
Heartland
Financial USA, Inc.
2005
Long Term Incentive Plan
THIS
RESTRICTED STOCK
AGREEMENT (this “Agreement”), entered into as
of the Grant Date (as defined in
Section 2(b)), by and
between the Participant and Heartland Financial USA, Inc., a Delaware
corporation (the “Company”);
WITNESSETH
THAT:
WHEREAS, the Company maintains
the Heartland Financial USA, Inc. 2005 Long-Term Incentive Plan (the “Plan”), which is incorporated
into and forms a part of this Agreement, and the Participant has been selected
by the committee administering the Plan (the “Committee”) to receive a
Restricted Stock Unit Award under the Plan;
NOW, THEREFORE, IT IS AGREED,
by and between the Company and the Participant, as follows:
Section
1. Award. In
accordance with the Plan, the Company hereby grants to the Participant this
Award of Restricted Stock Units (each, an “RSU”) where each RSU
represents the right to receive one share of Stock in the future as set forth in
Section 2 (“Award”). This Award is in all
respects limited and conditioned as provided herein.
Section
2. Terms of
Restricted Stock Unit Award. The following words
and phrases relating to the grant of the Award shall have the following
meanings:
(a) The
“Participant” is «First_Name» «Middle_Initial» «Last_Name».
(b) The
“Grant Date” is January
19,
2010 .
(c) The
number of “RSUs” is
«RSUs» .
Except
where the context clearly implies to the contrary, any capitalized term in this
Agreement shall have the meaning ascribed to that term under the
Plan.
Section
3. Restricted
Period; Vesting; and Forfeiture. This Agreement evidences the
Company’s grant to the Participant as of the Grant Date, on the terms and
conditions described in this Agreement and in the Plan, a number of RSUs, each
of which represents the right of the Participant to receive a share of Stock
free of restrictions following the Restricted Period.
(a) Subject
to the limitations of this Agreement, and specifically
Section 20 hereof, the
“Restricted Period” for
each installment of such RSUs (“Installment”) shall begin on
the Grant Date and end as described in the following schedule (but only if the
Participant’s Date of Termination (as defined in
Section 10(a)) does not
occur prior to the end of the Restricted Period):
|
INSTALLMENT
|
RESTRICTED
PERIOD WILL END AND THE RSUs BECOME VESTED ON:
|
|
1/3
of RSUs
|
3rd
anniversary of Grant Date
|
|
1/3
of RSUs
|
4th
anniversary of Grant Date
|
|
1/3
of RSUs
|
5th
anniversary of Grant Date
|
(b) Notwithstanding
the foregoing provisions of this Section 3, the Restricted
Period for the RSUs shall cease immediately, and the RSUs shall become
immediately and fully vested, upon:
(i) the date
of a Change in Control; provided, however that such
Change in Control constitutes a change in the ownership or effective control of
the Company or a change in the ownership of a substantial portion of the assets
of the Company, each as described in 26 C.F.R. 1.409A-3(i)(5);
(ii) the date
of the Participant’s death; or
(iii) the date
of the Participant’s Disability (as defined in
Section
10(b)).
(c) Upon
Participant’s Date of Termination which occurs due to Retirement (as defined in
Section 10(c)) prior to
the end of the Restricted Period, the Participant shall remain eligible to
become vested in the RSUs as if the Participant has remained continually
employed through such period.
(d) In the
event of the Participant’s Date of Termination for any reason other than upon a
Change in Control or Retirement, or due to the Participant’s death or
Disability, prior to the end of the Restricted Period, the Participant shall
forfeit all rights, title and interest in and to the RSUs still subject to a
Restricted Period as of the Participant’s Date of Termination.
Section
4. Settlement
Eligibility Dates. Notwithstanding the effect of any lapse of
the Restricted Period pursuant to
Section 3 above, the
Company shall not settle any RSUs unless and until the Company has repaid its
obligation under the United States Treasury’s Troubled Asset Relief Program
(“TARP”). As
the Company repays its obligation under TARP, the settlement restrictions of
this
Section 4 shall lapse in
accordance with the following schedule (such dates to be referred to as “Settlement Eligibility
Dates”):
|
RSUs
VESTING
|
SETTLEMENT
ELIGIBILITY DATES:
|
|
25%
of RSUs
|
The
date on which 25% of the aggregate financial assistance received under
TARP is no longer outstanding.
|
|
Additional
25% of RSUs
|
The
date on which 50% of the aggregate financial assistance received under
TARP is no longer outstanding.
|
|
Additional
25% of RSUs
|
The
date on which 75% of the aggregate financial assistance received under
TARP is no longer outstanding.
|
|
Additional
25% of RSUs
|
The
date on which all obligations of the Company arising from financial
assistance provided under TARP is no longer
outstanding.
|
Section
5. Settlement
of Units.
Delivery of Stock or other amounts under this Agreement and the Plan
shall be subject to the following:
(a) Delivery of
Stock. As soon as administratively practicable following the
later of (i) the end of the Restricted Period or (ii) the Settlement Eligibility
Dates set forth in
Section 4 (but not later than 60 days
following such date), the Company shall deliver to the Participant one share of
the Company’s Stock free and clear of any restrictions in settlement of each of
the unrestricted units (the date of delivery of such Stock, the “Settlement
Date”).
(b) Compliance with Applicable
Laws. Notwithstanding any other provision of this Agreement or the
Plan, the Company shall have no obligation to deliver any Stock or make any
other distribution of benefits under this Agreement or the Plan unless such
delivery or distribution complies with all applicable laws (including, the
requirements of the Securities Act), and the applicable requirements of any
securities exchange or similar entity.
(c) Certificates. To the
extent that this Agreement and the Plan provide for the issuance of Stock, the
issuance may be effected on a non-certificated basis, to the extent not
prohibited by applicable law or the applicable rules of any stock
exchange.
Section
6. Withholding. All deliveries of
shares of Stock pursuant to this Agreement shall be subject to withholding of
all applicable taxes. The Company shall have the right to require the
Participant (or if applicable, permitted assigns, heirs or Designated
Beneficiaries) to remit to the Company an amount sufficient to satisfy any tax
requirements prior to the delivery date of any shares of Stock (or cash or other
property) under this Agreement. At the election of the Participant,
subject to the rules and limitations as may be established by the Committee,
such withholding obligations may be satisfied through the surrender of shares of
Stock which the Participant already owns, or to which Participant is otherwise
entitled under the Plan.
Section
7. Non-Transferability
of Award. The Participant
shall not sell, assign, transfer, pledge, hypothecate, mortgage, encumber or
dispose of any RSUs awarded under this Award.
Section
8. Dividend
Equivalents. The Participant
shall be entitled to receive a payment of cash equal in value to any cash
dividends and property distributions paid with respect to RSUs that have vested
pursuant to
Section 3 (other than
dividends or distributions of securities of the Company which may be issued with
respect to its shares by virtue of any stock split, combination, stock dividend
or recapitalization – to the extent covered in Section 3.4 of the Plan) that
become payable prior to the Settlement Date (“Dividend Equivalents”);
provided, however, that no Dividend Equivalents shall be payable to or for the
benefit of the Participant with respect to record dates for such dividends or
distributions occurring prior to the date such RSUs become vested pursuant to
Section 3, or with respect
to record dates for such dividends or distributions occurring on or after the
date, if any, on which the Participant has forfeited the
RSUs. Dividend Equivalents shall not earn interest and shall be paid,
with respect to vested RSUs, on the Settlement Date. All Dividend Equivalents
shall be subject to the same restrictions and forfeiture provisions applicable
to the underlying RSUs.
Section
9. Voting
Rights; Rights as Shareholder. The Participant shall not be a
shareholder of record and shall not have any voting rights, or any other rights
as a shareholder, until a stock certificate has been duly issued on the
Settlement Date, as provided herein.
Section
10. Definitions.
For purposes of this Agreement, words and phrases shall be defined as
follows:
(a) “Date of Termination” shall
mean the first day occurring on or after the Grant Date on which the Participant
is not employed by the Company or any Subsidiary, regardless of the reason for
the termination of employment; provided that a termination of employment shall
not be deemed to occur by reason of a transfer of the Participant between the
Company and a Subsidiary or between two Subsidiaries; and further provided that
the Participant’s employment shall not be considered terminated while the
Participant is on a leave of absence from the Company or a Subsidiary approved
by the Participant’s employer. If, as a result of a sale or other
transaction, the Participant’s employer ceases to be a Subsidiary (and the
Participant’s employer is or becomes an entity that is separate from the
Company), and the Participant is not, at the end of the 30-day period following
the transaction, employed by the Company or an entity that is then a Subsidiary,
then the occurrence of such transaction shall be treated as the Participant’s
Date of Termination caused by the Participant being discharged by the
employer.
(b) “Disability” shall mean that
(i) the Participant is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period
of not less than twelve (12) months, or (ii) the Participant is, by reason of
any medically determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period of not less
than twelve (12) months, receiving income replacement benefits for a period of
not less than three months under an accident and health plan covering employees
of the Company.
(c) “Retirement” shall mean
termination of the Participant’s employment with the Company or any Subsidiary
which occurs on or after the second anniversary of the Grant Date and after the
Participant attains age 62 plus ten years of service.
Section
11. Heirs and
Successors.
This Agreement shall be binding upon, and inure to the benefit of, the
Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, purchase of assets or otherwise, all or substantially
all of the Company’s assets and business. If any rights of the
Participant or benefits distributable to the Participant under this Agreement
have not been settled or distributed, respectively, at the time of the
Participant’s death, such rights shall be settled and payable to the Designated
Beneficiary, and such benefits shall be distributed to the Designated
Beneficiary, in accordance with the provisions of this Agreement and the
Plan. The “Designated Beneficiary” shall
be the beneficiary or beneficiaries designated by the Participant in a writing
filed with the Committee in such form as the Committee may
require. The designation of beneficiary form may be amended or
revoked from time to time by the Participant. If a deceased
Participant fails to designate a beneficiary, or if the Designated Beneficiary
does not survive the Participant, any rights that would have been payable to the
Participant and shall be payable to the legal representative of the estate of
the Participant. If a deceased Participant designates a beneficiary
and the Designated Beneficiary survives the Participant but dies before the
settlement of Designated Beneficiary’s rights under this Agreement, then any
rights that would have been payable to the Designated Beneficiary shall be
payable to the legal representative of the estate of the Designated
Beneficiary.
Section
12. Administration. The authority to
manage and control the operation and administration of this Agreement and the
Plan shall be vested in the Committee, and the Committee shall have all powers
with respect to this Agreement as it has with respect to the Plan. Any
interpretation of this Agreement or the Plan by the Committee and any decision
made by it with respect to this Agreement or the Plan are final and binding on
all persons.
Section
13. Plan
Governs. Notwithstanding
anything in this Agreement to the contrary, this Agreement shall be subject to
the terms of the Plan, a copy of which may be obtained by the Participant from
the office of the Secretary of the Company; and this Agreement are subject to
all interpretations, amendments, rules and regulations promulgated by the
Committee from time to time pursuant to the Plan. Notwithstanding
anything in this Agreement to the contrary, in the event of any discrepancies
between the corporate records and this Agreement, the corporate records shall
control.
Section
14. Not an
Employment Contract. This Award will
not confer on the Participant any right with respect to continuance of
employment or other service with the Company or any Subsidiary, nor will it
interfere in any way with any right the Company or any Subsidiary would
otherwise have to terminate or modify the terms of such Participant’s employment
or other service at any time.
Section
15. Interpretation. This Agreement is
subject to all interpretations, amendments, rules and regulations promulgated by
the Company from time to time. Any interpretation of the Agreement by
the Company and any decision made by it with respect to the Agreement are final
and binding on all persons. Notwithstanding anything in the Agreement
to the contrary, in the event of any discrepancies between the corporate records
and the Agreement, the corporate records shall control.
Section
16. Amendment. This Agreement may be
amended in accordance with the provisions of the Plan, and may otherwise be
amended by written Agreement of the Participant and the Company without the
consent of any other person.
Section
17. Governing
Law. This Agreement,
the Plan, and all actions taken in connection herewith shall be governed by and
construed in accordance with the laws of the State of Delaware without reference to
principles of conflict of laws, except as superseded by applicable federal
law.
Section
18. Validity. If
any provision of this Agreement is determined to be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, but the Agreement shall be construed and enforced as if such illegal or
invalid provision has never been included herein.
Section
19. Section
409A Amendment. The Committee
reserves the right (including the right to delegate such right) to unilaterally
amend this Agreement without the consent of the Participant in order to maintain
an exclusion from the application of, or to maintain compliance with, Code
Section 409A. Participant’s acceptance of this award constitutes
acknowledgement and consent to such rights of the Committee.
Section
20. EESA
Amendment, Benefits During TARP Period. The Committee reserves
the right (including the right to delegate such right) to unilaterally amend
this Agreement without the consent of the Participant in order to maintain an
exclusion from the application of, or to maintain compliance with, Section 111
of the Emergency Economic Stabilization Act of 2008 (“EESA”), as
amended. Participant’s acceptance of this Award constitutes
acknowledgement and consent to such rights of the
Committee. Notwithstanding any provision of this Agreement to the
contrary, if any applicable provision of EESA or any of the compensation
limitations or prohibitions applicable to TARP recipients (collectively, the
"EESA Restrictions")
should limit or prohibit the payment to Participant of any amounts under this
Agreement or otherwise, Participant hereby agrees to forever waive any claim
against the Company or any of its directors, officers, employees and agents for
any changes to Participant’s compensation or benefits that are required in order
to comply with the EESA Restrictions, including but not limited to the
limitation or complete prohibition of any benefits triggered or accelerated upon
Change of Control described in this Agreement. Participant further
acknowledges and agrees that if the Company notifies Participant in writing that
payments or other compensation received by Participant are in violation of any
the EESA Restrictions, Participant shall repay the aggregate amount of such
payments to the Company no later than 15 business days following Participant’s
receipt of such notice.
IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed in its name and on its behalf,
all as of the Grant Date and the Participant acknowledges acceptance of the
terms and conditions of this Agreement.
PARTICIPANT
«First_Name»
«Middle_Initial» «Last_Name»
HEARTLAND
FINANCIAL USA, INC.
By:
Xxxxxx
X. Xxxxx
Its: Acting Chairman,
Nom/Compensation Committee
