FPIC INSURANCE GROUP, INC. AMENDED AND RESTATED OMNIBUS INCENTIVE PLAN PERFORMANCE UNIT AWARD AGREEMENT
Exhibit
10.3(k)
FPIC
INSURANCE GROUP, INC.
AMENDED
AND RESTATED OMNIBUS INCENTIVE PLAN
January
4, 2010
[Name]
[Address]
In
accordance with the terms of the Amended and Restated Omnibus Incentive Plan
(the “Plan”) maintained by FPIC Insurance Group, Inc. (the “Company”), pursuant
to action of the Compensation Committee of the Company’s Board of Directors
(acting as the “Committee” as defined in the Plan), the Company hereby grants to
you (the “Participant”), subject to the terms and conditions set forth in this
Performance Unit Award Agreement (including Annexes A and B hereto and all
documents incorporated herein by reference), an award (the “Award”) of
contingent stock (“Performance Units”), as set forth below:
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Date
of Grant:
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January
4, 2010
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Target
Number of Performance Units:
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_________________
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Earned
Number of Performance Units:
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Target
Number multiplied by Payout Percentage multiplied by Vesting
Percentage
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Payout:
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One
share of the Company’s Common Stock, $.10 par value, for each Performance
Unit earned
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Payout
Percentage:
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As
determined by the Committee in accordance with Annexes A and
B
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Performance
Goal(s):
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As
set forth on Annex A
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Performance
Period:
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As
set forth on Annex A
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Vesting:
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Normal: 100%
at 12:00 midnight on the last day of the Performance
Period. Otherwise as provided on Annex B
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Retention
and Restrictions on Transfer:
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As
provided on Annex A
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THIS
AWARD IS SUBJECT TO FORFEITURE AS PROVIDED IN ANNEX B HERETO AND THE
PLAN.
Further
terms and conditions of the Award are set forth in Annexes A and B hereto, which
are an integral part of this Performance Unit Award Agreement.
All
terms, provisions and conditions applicable to the Award set forth in the Plan
and not set forth herein are hereby incorporated by reference
herein. To the extent any provision hereof is inconsistent with the
Plan, the Plan will govern. The Participant hereby acknowledges
receipt of a copy of this Performance Unit Award Agreement including Annexes A
and B hereto and a copy of the Plan and agrees to be bound by all the terms and
provisions hereof and thereof.
FPIC
INSURANCE GROUP, INC.
By:
______________________________
Agreed:
___________________________
Attachments: Annex
A
Annex B
2
ANNEX
A
TO
FPIC
INSURANCE GROUP, INC.
AMENDED
AND RESTATED OMNIBUS INCENTIVE PLAN
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Retention
and Restrictions on Transfer:
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The
Shares issued to the Participant on payout of the Award will be subject to
such retention requirements and restrictions on transfer as the Committee
shall adopt or modify during 2010 for recipients of awards of Performance
Units; provided,
that such requirements and restrictions must be uniform for all recipients
of such awards made during 2010.
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Performance
Period:
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January
1, 2010 – December 31, 2011
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Performance
Goals and Payout Percentages:
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The
following table sets forth the Threshold, Target and Maximum Performance
Goals for the Performance Period and the Payout Percentages resulting from
achievement of these Performance Goals. For each 1/10th of a
percentage point variation from the Target Performance Goal between the
Threshold and Maximum Performance Goals, the award will change by 2.50
percentage points. For example, achievement of 9.0% return on
average equity would result in a Payout Percentage of
75%.
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Performance
Goals:
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The
following levels of ROAE:
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Payout
Percentage:
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Less
than Threshold
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-
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0%
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Threshold
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8.0%
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50%
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Target
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10.0%
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100%
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Maximum
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12.0%
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150%
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More
than Maximum
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-
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150%
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“ROAE”
shall mean the average of the Company’s “returns on average equity” for the
calendar years 2010 and 2011. For this purpose, “return on average
equity” shall mean the percentage, rounded to the nearest tenth of one percent,
obtained by dividing the Company’s net income during the applicable year by
average common shareholders’ equity during such year, as adjusted as applicable
for:
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·
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the
cumulative effect of accounting changes during the Performance
Period;
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·
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the
effect of changes in tax laws during the Performance Period as reflected
in the Company’s financial statements for the Performance
Period;
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·
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the
impact of mergers and acquisitions completed during the Performance Period
on the financial results of the Company for the lesser of the subsequent
18 months or the remainder of the Performance
Period;
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·
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the
effect of state-levied guaranty fund assessments levied during the
Performance Period to the extent not recovered during the Performance
Period so as to be neutral to the determination of financial
performance;
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·
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costs
and expenses accrued or incurred during the Performance Period associated
with merger and acquisition activities that do not ultimately result in a
transaction; and
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·
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the
impact of substantial changes in the level of debt as a portion of the
Company’s overall capital structure beyond that already contemplated in
plans used to determine the Performance Goals;
and
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provided, that no
adjustment shall be made to the extent such adjustment would cause the Award not
to qualify as performance-based compensation within the meaning of Section
162(m) of the Internal Revenue Code and regulations thereunder.
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ANNEX
B
TO
FPIC
INSURANCE GROUP, INC.
AMENDED
AND RESTATED OMNIBUS INCENTIVE PLAN
Under
and subject to the provisions of the Plan, the Company has granted to the
Participant an Award of Performance Units as set forth in this
Agreement. The Award is subject to the following terms and conditions
(which together with Annex A and the other terms of this Agreement are referred
to as this “Agreement”).
1. Determination of Units
Earned. The number of Performance Units, if any, earned under
this Agreement shall be determined by the Committee in accordance with this
Agreement and the Plan as soon as reasonably practicable after the end of the
Performance Period (but no later than 15 calendar days after the filing of the
Company’s Annual Report on Form 10-K for the last year of the Performance
Period) and will be dependent upon the degree of attainment of the Performance
Goal(s) during the Performance Period. Performance Units will be
forfeited and not be deemed to be earned unless and to the extent vested in
accordance with Paragraph 3 below.
2. Payout of Award. Each Performance Unit earned under
this Agreement shall entitle the recipient to receive a payout of one share of
common stock, $.10 par value, of the Company (a “Share”). Except as
provided elsewhere herein, as soon as reasonably practicable after the
determination of the Performance Units earned (but no later
than 15 calendar days after the
filing of the Company’s Annual Report on Form 10-K for the last year of the
Performance Period) and upon the satisfaction of the applicable
withholding obligations, the Company shall issue to the Participant the Shares to which the Participant is
entitled. The Company shall issue such Shares without restriction on
transfer other than those provided in Annex A or under the Plan. The
Company shall issue such Shares, at its option, (i) by delivery of a stock
certificate in the name of the Participant or his or her designee to the custody
of the Participant or (ii) by crediting to a book-entry account maintained by
the Company’s stock transfer agent or its designee for the benefit of the
Participant or his or her designee.
3. Vesting and
Forfeiture. Except as provided
on Annex A or in the Participant's employment, severance or other
agreement (if applicable) (the terms of which are incorporated herein by
reference):
(a) Normal Vesting and
Forfeiture. Except as provided elsewhere herein: (i) the Award
shall become 100% vested at 12:00 midnight on the last day of the Performance
Period (the “End of the Performance Period”) and (ii) if the Participant’s
employment is terminated at any time prior to the End of the Performance Period,
the entire award shall be forfeited on the date of such termination of
employment.
(b) Termination of Employment
Without Cause. If the
Participant’s employment is terminated by the Company without Cause (as defined
below) after December 31 of the year in which the Date of Grant occurs and prior
to the End of the Performance Period, the Participant shall be vested in
the Award on such
termination in the percentage equal to the
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percentage of the Performance Period elapsed on the date twelve
months prior to the End of the Performance Period. In such event, the
payout of the Award shall be made in the manner and at the time contemplated by
Paragraphs 1 and 2 above based upon applying such vesting percentage to the
achievement of the Performance Goal(s) for the entire Performance
Period.
(c) Death or Permanent and Total
Disability. If the Participant’s employment is terminated
prior to the End of the Performance Period due to death or Permanent and Total
Disability, the Award shall become 100% vested on the occurrence of such
event. In such event, the payout of the Award shall be made in the
manner and at the time contemplated by Paragraphs 1 and 2 above based upon
achievement of the Performance Goal(s) for the entire Performance
Period.
(d) Retirement. If the Participant’s employment is
terminated prior to the End of the Performance Period due to Retirement
(as defined below), the
Participant shall be vested in the Award on the
occurrence of such event in the percentage equal to the
percentage of the Performance Period elapsed prior
to such termination. In such event, the payout of the Award shall be
made in the manner and at the time contemplated by Paragraphs 1 and 2 above
based upon applying the vesting percentage to the achievement of the Performance
Goal(s) for the entire Performance Period.
(e) Change
in Control Event. The Award shall
become 100% vested immediately preceding the occurrence of a Change in
Control Event, as
defined in subparagraph 3(e)(iii). In
addition, in the event of a Change in Control Event,
(i) the
payout of the Award shall be determined utilizing a Payout Percentage equal to
the greater of 100% or the Payout Percentage determined by the Committee as
though the Performance Period had ended on the last day of the calendar quarter
immediately preceding the earlier of (x) the first public announcement of the
Change in
Control Event or of
the Company’s entry into a definitive agreement with respect to the Change in
Control Event, (y) the
Company’s entry into a definitive agreement with respect to the Change in
Control Event, and (z)
the date the Change in
Control Event
occurs; and
(ii) the
payout of the award shall be made, to the extent feasible, immediately prior to
a Change in
Control Event and
in any event as soon as reasonably practicable after any Change in
Control Event.
(iii) For
purposes of the Agreement, a “Change in Control Event” shall
mean a “change in control” as such term is defined in Section 409A of the
Internal Revenue Code, as amended, and the rules and regulations adopted
thereunder (as such statute, rules and regulations shall be amended and further
explained from time to time) (“Section 409A”), which generally provide as set
forth below.
A. Change
in Ownership. The
acquisition by any individual, entity or group (a “Person”) of ownership of
stock of the Company that, together with stock held by such Person, constitutes
more than 50% of the total fair market value or total voting power of the stock
of the Company. However, if any Person is considered to own more than
50% of the total fair market value or total voting power of the stock of the
Company, the
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acquisition of additional stock by the same Person is not
considered to cause a change in ownership of the Company (or to cause a change
in the effective control of the Company). An increase in the
percentage of stock owned by any one Person as a result of a transaction in
which the Company acquires its stock in exchange for property will be treated as
an acquisition of stock for purposes of this paragraph. This
paragraph applies only when there is a transfer of stock of the Company (or
issuance of stock of the Company) and stock in the Company remains outstanding
after the transaction.
B. Change
in Effective Control. (i)
The acquisition by any Person during the 12-month period ending on the date of
the most recent acquisition by such Person, of ownership of stock of the Company
possessing 35% or more of the total voting power of the stock of the Company; or
(ii) the replacement of a majority of the members of the Company’s board of
directors during any 12-month period by directors whose appointment or election
is not endorsed by a majority of the members of the board of directors prior to
the date of their appointment or election.
If any
one Person is considered to effectively control the Company, the acquisition of
additional control of the Company by the same Person is not considered to cause
a change in the effective control of the Company (or to cause a “change in
ownership” of the Company within the meaning of this
Section).
C. Change
in Ownership of a Substantial Portion of Assets. The
acquisition by any Person during the 12-month period ending on the date of the
most recent acquisition by such Person, of assets from the Company that have a
total gross fair market value equal to or more than 40% of the total gross fair
market value of all of the assets of the Company immediately prior to such
acquisition(s). For this purpose, “gross fair market value” means the
value of the assets of the Company, or the value of the assets being disposed
of, determined without regard to any liabilities associated with such
assets.
In the
event of any conflict between the summary contained in this subparagraph and the
definition of “change in control” as defined in Section 409A, Section 409A shall
govern.
(f) Effect
of Section 409A in Certain Instances. Notwithstanding
the foregoing, to the extent the Award is subject to Section 409A(a)(2)(B)(i)
(relating to payments made to certain “key employees” of certain publicly-traded
companies), then any payments pursuant to this Paragraph 3 shall be delayed for
such period of time as necessary to comply with Section
409A(a)(2)(B)(i). To the extent any payments are delayed, they shall
be paid promptly after such period of delay, in compliance with Section
409A.
(g) Vesting
and Payout As Affected by Other Agreements. In
the event the Participant is a party to an employment, severance or other
agreement with the Company
B-3
providing
for accelerated vesting or payout of the Award upon termination of employment in
connection with or after a change in control of the Company, (i) the payout of
the Award shall be determined utilizing a Payout Percentage equal to the
greater of 100% or the Payout Percentage determined by the Committee as though
the Performance Period had ended on the last day of the calendar quarter
immediately preceding the earlier of (x) the first public announcement of such
change in
control or of the Company’s entry into a definitive agreement with respect to
the change in control, (y) the Company’s entry into a definitive agreement with
respect to the change in control, and (z) the date the change in control
event occurs
and (ii) the payout of the Award shall be made promptly after such termination
of employment.
4. No Shareholder Rights Until
Payout. During the Performance Period and until receipt of the
Shares, if any, to which the Participant becomes entitled pursuant to the Award,
the Participant shall not have any rights as a shareholder with respect to the
Shares underlying the Award, nor shall the Participant be entitled to receive
dividends or dividend equivalents with respect to the Shares underlying the
Award.
5. Tax
Withholding. The Company may make such provisions as are
necessary for the withholding of all applicable taxes upon vesting or payout of
the Award, in accordance with Article 15 of the Plan. With respect to
the minimum statutory tax withholding required with respect to the Award, the
Participant may elect to satisfy such withholding requirement by having the
Company withhold Shares from the payout of the Award.
6. Ratification of
Actions. By accepting this Award or other benefit under the
Plan, the Participant and each person claiming under or through him or her shall
be conclusively deemed to have indicated the Participant's acceptance and
ratification of, and consent to, any action taken under the Plan or the Award by
the Company.
7. Notices. Any
notice hereunder to the Company shall be addressed to its office at 0000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000; Attention:
Corporate Secretary, and any notice hereunder to the Participant shall be
addressed to the Participant at the address specified on the Performance Unit
Award Agreement, subject to the right of either party to designate at any time
hereafter in writing some other address.
8. Definitions. Capitalized
terms not otherwise defined herein shall have the meanings given them in the
Plan.
As used in this Agreement, “termination of employment”
shall mean the Participant’s ceasing to be an employee of the Company or any of
its Subsidiaries, whether by reason of voluntary or involuntary termination of
employment, the Participant’s employer ceasing to be a Subsidiary of the
Company, death, Permanent and Total Disability, or otherwise. Further, “termination” or “termination of
employment,” as used in this Agreement to determine the date of any payment,
shall mean the date of the Participant’s “separation from service” as defined by
Section 409A.
As used in this Agreement, “Retirement”
means a termination of employment other than a termination for Cause or due to
death or Permanent and Total Disability by a Participant at or after age 65 or
such earlier date after age 50 as may be approved by the Committee with regard
to such Participant.
B-4
As used in this Agreement, “Cause”
means:
(i) in the case where there is no
employment agreement, consulting agreement, change in control agreement or
similar agreement in effect between the Company or an affiliate and the
Participant at the time of the grant of the Award (or where there is such an
agreement but it does not define “cause” (or words of like import)), the
Participant’s fraud or dishonesty that has resulted or is likely to result in
material economic damage to the Company, or the Participant’s willful
nonfeasance if such nonfeasance is not cured within ten days of written notice
from the Company, as determined in good faith by a vote of at least two thirds
of the non-employee directors of the Company at a meeting of the board of
directors at which the Participant is provided an opportunity to be heard;
or
(ii) in the case where there is such an
agreement at the time of the grant of the Award that defines “cause” (or words
of like import), as defined under such agreement.
9. Governing Law and
Severability. To the extent not preempted by Federal law, the
Performance Unit Award Agreement will be governed by and construed in accordance
with the laws of the State of Florida, without regard to conflicts of law
provisions. In the event any provision of the Performance Unit Award
Agreement shall be held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Performance Unit Award
Agreement, and the Performance Unit Award Agreement shall be construed and
enforced as if the illegal or invalid provision had not been
included.
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