PINNACLE FINANCIAL PARTNERS, INC. Form of Restricted Stock Agreement
Exhibit
10.44
PINNACLE
FINANCIAL PARTNERS, INC.
Form
of Restricted Stock Agreement
THIS
RESTRICTED STOCK AGREEMENT
(the
"Agreement") is by and between Pinnacle Financial Partners, Inc., a Tennessee
corporation (the "Company"), and _____
(the
"Grantee"). Capitalized terms used but not defined in this Agreement shall
have
the meaning ascribed to such terms in the Pinnacle Financial Partners, Inc.
2004
Equity Incentive Plan (the "Plan").
Section
1. Restricted
Stock Award.
The
Grantee is hereby granted the right to receive xxx
shares
(the "Restricted Stock") of the Company's common stock, $1.00 par value per
share (the "Common Stock"), subject to the terms and conditions of this
Agreement and the Plan.
Section
2. Lapse
of Restrictions.
Subject
to Sections
5
and
9
hereof,
the restrictions associated with the shares of Restricted Stock granted pursuant
to Section
1
hereof
shall lapse at such times (each, a "Vesting Date") and in the amounts set
forth
below:
(a) the
restrictions with respect to one-third of the shares, or xxx
shares,
of Restricted Stock granted hereunder shall lapse on the date that the Company's
independent auditors issue their report on the Company's financial statements
for the fiscal year ending December 31, 2007 in the event that the Company's
diluted earnings per share (exclusive of the impact of any merger-related
charges, if any) for the fiscal year ended December 31, 2007 is equal to
or
greater than $____ and the Company’s ratio of criticized and classified assets
to total capital (as defined in the Company’s strategic framework) at December
31, 2007 is less than --%;
(b) the
restrictions with respect to one-third of the shares, or xxx
shares,
of Restricted Stock granted hereunder shall lapse on the date that the Company’s
independent auditors issue their report on the Company’s financial statements
for the fiscal year ending December 31, 2008, in the event that the Company's
reported diluted earnings per share (exclusive of the impact of any
merger-related charges, if any) for the fiscal year ended December 31, 2008
is
equal to or greater than the fully diluted earnings per share target established
by the Board of Directors during the Company’s 2007 strategic planning process
and the Company’s ratio of criticized and classified assets to total capital (as
defined in the Company’s strategic framework) at December 31, 2008 is less than
--%; and
(c) the
restrictions with respect to one-third of the shares, or xxx
shares,
of Restricted Stock granted hereunder shall lapse on the date that the Company’s
independent auditors issue their report on the Company’s financial statements
for the fiscal year ending December 31, 2009, in the event that the Company's
reported diluted earnings per share (exclusive of the impact of any
merger-related charges, if any) for the fiscal year ended December 31, 2009
is
equal to or greater than the fully diluted earnings per share target established
by the Board of Directors during the Company’s 2007 strategic planning process
and the Company’s ratio of criticized and classified assets to total capital (as
defined in the Company’s strategic framework) at December 31, 2009 is less than
--%; or
(d) should
restrictions with respect to the shares of Restricted Stock granted hereunder
not lapse with respect to the terms and conditions as described on the Vesting
Dates noted in Section 2(a), 2(b) or 2(c), the restrictions shall lapse on
the
date the Company’s independent auditors issue their report on the Company’s
financial statements for the fiscal year ended December 31, 2009, in the
event
that the Company's reported cumulative diluted earnings per share (exclusive
of
the impact of any merger-related charges, if any) for the fiscal years ending
December 31, 2007, 2008 and 2009 is equal to or greater than $___ plus the
fully
diluted earnings per share target established by the Board of Directors during
the Company’s 2007 strategic planning process and the Company’s ratio of
criticized and classified assets to total capital (as defined in the Company’s
strategic framework) at December 31, 2007; December 31, 2008 and December
31,
2009 is less than --%.
Any
shares of Restricted Stock for which the performance targets identified above
are not met shall be immediately forfeited and the Grantee shall have no
further
rights with respect to such shares of Restricted Stock.
Page
1
In
the
event that the Human Resources and Compensation Committee of the Board of
Directors of the Company (the "Compensation Committee") determines that an
event
has occurred during any fiscal year which has impacted the Company's reported
diluted earnings per share for such fiscal year, the Compensation Committee
shall have the right, in its sole and absolute discretion, to increase or
decrease the vesting targets to reflect such event for purposes of calculating
the vesting of shares of Restricted Stock under this Section
2
for such
fiscal year and for any or all future fiscal years; provided, however, that
the
Compensation Committee shall not make such changes as would cause the award
hereunder to be in violation of Section 162(m) of the Internal Revenue Code
of
1986, as Amended.
Section
3. Distribution
of Restricted Stock.
Certificates representing the shares of Restricted Stock that have vested
under
Section
2
will be
distributed to the Grantee as soon as practicable after each Vesting
Date.
Section
4. Voting
Rights and Dividends.
Prior
to the distribution of the Restricted Stock, certificates representing shares
of
Restricted Stock will be held by the Company (the "Custodian") in the name
of
the Grantee. The Custodian will take such action as is necessary and appropriate
to enable the Grantee to vote the Restricted Stock. All cash dividends received
by the Custodian, if any, with respect to the Restricted Stock will be remitted
to the Grantee. Stock dividends issued with respect to the Restricted Stock
shall be treated as additional shares of Restricted Stock that are subject
to
the same restrictions and other terms and conditions that apply to the shares
of
Restricted Stock. Notwithstanding the foregoing, no voting rights or dividend
rights shall inure to the Grantee following the forfeiture of the Restricted
Stock pursuant to Section
5.
Section
5. Termination/Change
of Status.
In the
event that the Grantee's employment by the Company (or any Subsidiary or
Affiliate of the Company) terminates for any reason, other than death or
Disability, all shares of Restricted Stock for which the forfeiture restrictions
have not lapsed prior to the date of termination shall be immediately forfeited
and Grantee shall have no further rights with respect to such shares of
Restricted Stock. In the event that the Grantee’s employment terminates by
reason of death or Disability all Restricted Stock shall be deemed vested
and
the restrictions under the Plan and this Agreement with respect to the
Restricted Stock, including the restriction on transfer set forth in
Section
6
hereof,
shall automatically expire and shall be of no further force or
effect.
Section
6. No
Transfer or Pledge of Restricted Stock.
No
shares of Restricted Stock may be sold, assigned, transferred, pledged,
hypothecated or otherwise encumbered or disposed of prior to the date the
forfeiture restrictions with respect to such shares have lapsed, if at all,
on
any Vesting Date.
Section
7. Tax
Election.
The
Grantee may, but is not required to, elect to apply the tax rules of Section
83(b) of the Internal Revenue Code of 1986, as amended (the "Code"), to the
issuance of the Restricted Stock. If the Grantee makes an affirmative election
under Section 83(b) of the Code, the Grantee shall deliver a copy of such
election to the Company in accordance with the requirements of the Code and
the
Regulations promulgated thereunder.
Section
8. Tax
Withholding.
The
Company may withhold from any distribution of Restricted Stock an amount
of
Common Stock equal to such federal, state or local taxes as shall be required
to
be withheld pursuant to any applicable law or regulation, unless the Company
agrees to accept a payment of cash (or to withhold from other wages payable
to
Grantee) in the amount of such withholding taxes.
Section
9. Change
of Control.
Upon
the occurrence of a Change in Control as defined in the Plan, all Restricted
Stock shall be deemed vested and the restrictions under the Plan and the
Agreement with respect to the Restricted Stock, including the restriction
on
transfer set forth in Section
6
hereof,
shall automatically expire and shall be of no further force or
effect.
Section
10. Stock
Subject to Award.
In the
event that the shares of Common Stock of the Company should, as a result
of a
stock split or stock dividend or combination of shares or any other change,
redesignation, merger, consolidation, recapitalization or otherwise, be
increased or decreased or changed into or exchanged for a different number
or
kind of shares of stock or other securities of the Company or of another
corporation, the number of shares of Restricted Stock that have been awarded
to
Grantee shall be appropriately adjusted to reflect such action. If any such
adjustment shall result in a fractional share, such fraction shall be
disregarded.
Section
11. Stock
Power.
Concurrently with the execution of this Agreement, the Grantee shall deliver
to
the Company a stock power, endorsed in blank, relating to the shares of
Restricted Stock. Such stock power shall be in the form attached hereto as
Exhibit
A.
Page
2
Section
12. Legend.
Each
certificate representing Restricted Stock shall bear a legend in substantially
the following form:
THIS
CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE
TERMS
AND CONDITIONS (INCLUDING FORFEITURE AND RESTRICTIONS AGAINST TRANSFER)
CONTAINED IN THE PINNACLE FINANCIAL PARTNERS, INC. 2004 EQUITY INCENTIVE
PLAN
(THE "PLAN") AND THE RESTRICTED STOCK AGREEMENT (THE "AGREEMENT") BETWEEN
THE
OWNER OF THE RESTRICTED STOCK REPRESENTED HEREBY AND PINNACLE FINANCIAL
PARTNERS, INC. (THE "COMPANY"). THE RELEASE OF SUCH STOCK FROM SUCH TERMS
AND
CONDITIONS SHALL BE MADE ONLY IN ACCORDANCE WITH THE PROVISIONS OF THE PLAN
AND
THE AGREEMENT, COPIES OF WHICH ARE ON FILE AT THE COMPANY.
Section
13. No
Right to Continued Employment.
This
Agreement shall not be construed as giving the Grantee the right to be retained
in the employ of the Company (or any Subsidiary or Affiliate of the Company),
and the Company (or any Subsidiary or Affiliate of the Company) may at any
time
dismiss the Grantee from employment, free from any liability or any claim
under
the Plan.
Section
14. Governing
Provisions.
This
Agreement is made under and subject to the provisions of the Plan, and all
of
the provisions of the Plan are also provisions of this Agreement. If there
is a
difference or conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan will govern. By signing
this
Agreement, the Grantee confirms that he or she has received a copy of the
Plan.
Section
15. Miscellaneous.
15.1
Entire
Agreement.
This
Agreement and the Plan contain the entire understanding and agreement between
the Company and the Grantee concerning the Restricted Stock granted hereby,
and
supersede any prior or contemporaneous negotiations and understandings. The
Company and the Grantee have made no promises, agreements, conditions or
understandings relating to the Restricted Stock, either orally or in writing,
that are not included in this Agreement or the Plan.
15.2
Captions.
The
captions and section numbers appearing in this Agreement are inserted only
as a
matter of convenience. They do not define, limit, construe or describe the
scope
or intent of the provisions of this Agreement.
15.3
Counterparts.
This
Agreement may be executed in counterparts, each of which when signed by the
Company and the Grantee will be deemed an original and all of which together
will be deemed the same Agreement.
15.4
Notice.
Any
notice or communication having to do with this Agreement must be given by
personal delivery or by certified mail, return receipt requested, addressed,
if
to the Company, to the principal office of the Company, and, if to the Grantee,
to the Grantee's last known address provided by the Grantee to the
Company.
15.5
Amendment.
This
Agreement may be amended by the Company, provided that unless the Grantee
consents in writing, the Company cannot amend this Agreement if the amendment
will materially change or impair the Grantee's rights under this Agreement
and
such change is not to the Grantee's benefit.
15.6
Successors
and Assignment.
Each
and all of the provisions of this Agreement are binding upon and inure to
the
benefit of the Company and the Grantee and their heirs, successors, and assigns.
However, neither the Restricted Stock nor this Agreement may be assigned
or
transferred except as otherwise set forth in this Agreement or the
Plan.
15.7
Governing
Law.
This
Agreement shall be governed and construed exclusively in accordance with
the
laws of the State of Tennessee applicable to agreements to be performed in
the
State of Tennessee.
[Signature
page to follow.]
Page
3
IN
WITNESS WHEREOF,
the
Company and the Grantee have executed this Agreement to be effective as of
January 25, 2007.
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PINNACLE
FINANCIAL PARTNERS, INC.:
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By:
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Name:
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Xxxx
X. Xxxxxxx
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Title:
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Chief
Administrative Officer and Corporate
Secretary
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GRANTEE.:
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By:
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Name:
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4
