Whitney Holding Corporation PERFORMANCE-BASED RESTRICTED STOCK UNIT AGREEMENT
Exhibit 10.10
Whitney
Holding Corporation
Non-transferable
GRANT
TO
____________
(“Grantee”)
by
Whitney Holding Corporation (the “Corporation”) of Restricted Stock Units (the
“Units”) representing the right to receive, on a one-for-one basis, shares of
the Corporation’s no par value common stock (“Shares”), pursuant to and subject
to the provisions of the Whitney Holding Corporation 2007 Long-Term Compensation
Plan (the “Plan”) and to the terms and conditions set forth on the following
pages of this award agreement (this “Agreement”).
The
target number of Units subject to this award is __________ (the
“Target Award”). Depending on the Corporation’s composite performance
ranking as compared to a select group of Peer Banks in the categories of Return
on Average Assets (“ROAA”) and Return on Average Equity (“ROAE”) for the
three-year period ending December 31, 2009, Grantee may earn up to 200% of
the
Target Award, in accordance with the performance matrix attached hereto as
Exhibit A.
By
accepting this award, Grantee shall be deemed to have agreed to the terms and
conditions of this Agreement and the Plan, and to acknowledge that he or she
has
received a copy of the Plan and the Plan’s Prospectus. Grantee
further agrees that the Committee shall not be liable for any determination
made
in good faith with respect to the Plan or the terms of this
Agreement.
IN
WITNESS WHEREOF, Whitney Holding Corporation, acting by and through its duly
authorized officers, has caused this Agreement to be executed as of the Grant
Date.
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WHITNEY
HOLDING CORPORATION
By:
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Chairman
of the Board and Chief Executive Officer
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Grant
Date: July 10, 2007
Accepted
by Grantee:__________________
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Performance-Based
Restricted Stock Unit
Award
2007
Award
TERMS
AND CONDITIONS
1. Defined
Terms. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Plan. In
addition, for purposes of this Agreement:
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(i)
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Return
on Average Assets (“ROAA”) and Return on Average Equity
(“ROAE”) are non-GAAP financial measures for the Corporation for a given
year, as reflected in the Corporation’s year-end earnings
release.
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(ii)
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Performance
Cycle means the period beginning on January 1, 2007 and ending on
December 31, 2009, or, if a Change in Control occurs prior to December
31,
2009, the period beginning on January 1, 2007 and ending on the December
31 next preceding the date of the Change in
Control.
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(iii)
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Peer
Banks, for each year in the Performance Cycle, means the same bank
peer group used for comparison of the Corporation’s performance under the
Whitney Holding Corporation Executive Compensation Plan in such
year.
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(iv)
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Prorated
Target Award means, in the case of Grantee’s termination prior to the
Vesting Date due to death, Disability, Retirement or involuntary
severance
without Cause, the Target Award multiplied by a fraction, the numerator
of
which is the number of days elapsed from the Grant Date to the date
of
such termination of employment and the denominator of which is
1095.
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(v)
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Vesting
Date means the earlier of July
10,
2010 or the
occurrence of a Change in Control.
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2. Vesting
of Units. The Units subject to the Target Award (or the Prorated
Target Award, if applicable) will be adjusted based on the performance of the
Corporation as provided on Exhibit A attached hereto, and will vest and
become nonforfeitable on the Vesting Date, provided that Grantee is employed
by
the Corporation or any of its Affiliates on the Vesting Date or has incurred
a
prior termination of employment due to death, Disability, Retirement or
involuntary severance without Cause. If Grantee’s employment
terminates prior to the Vesting Date for any reason other than Grantee’s death,
Disability, Retirement or involuntary severance without Cause, Grantee shall
forfeit all right, title and interest in and to the Units as of the date of
such
termination and the Units will be reconveyed to the Corporation without further
consideration or any act or action by Grantee. Any Units that fail to
vest in accordance with the terms of this Agreement will be forfeited and
reconveyed to the Corporation without further consideration or any act or action
by Grantee.
3. Conversion
to Shares. Subject to the following sentence, the Units that vest
will be converted to actual Shares (one Share per vested Unit) as soon as
practicable after the Vesting Date (the “Conversion Date”), but in no event
later than December 31 of the year in which the Vesting Date
occurs. Shares will be registered on the books of the Corporation in
Grantee’s name as of the Conversion Date and delivered to Grantee as soon as
practical thereafter, in certificated or uncertificated form, as Grantee shall
direct.
4. Dividend
Equivalents. If and when cash dividends or other cash
distributions are declared with respect to the Shares while the Units are
outstanding, the dollar amount of such dividends or distributions (“Dividend
Equivalents”) with respect to the number of Shares then underlying the Target
Award (or the Prorated Target Award, if applicable) will be paid to Grantee
in
the form of cash, or if made available by the Corporation and at the election
of
Grantee, reinvested under a stockholder investment service agreement on the
date
such dividend or distribution is paid to shareholders of the
Corporation. Shares purchased with reinvested dividends shall not be
restricted, and are not subject to the performance-based aspects of this
Agreement. Grantee shall have no right to Dividend Equivalents with
respect to Units that are forfeited, or with respect to any Units in excess
of
the Target Award (or the Prorated Target Award, if applicable).
5. Restrictions
on Transfer and Pledge. No right or interest of Grantee in the
Units or in any Dividend Equivalents may be pledged, encumbered, or hypothecated
or be made subject to any lien, obligation, or liability of Grantee to any
other
party other than the Corporation or an Affiliate. Neither the Units
nor any accumulated Dividend Equivalents may be sold, assigned, transferred
or
otherwise disposed of by Grantee other than by will or the laws of descent
and
distribution.
Performance-Based
Restricted Stock Unit
Award
2007
Award
6. Limitation
of Rights. The Units do not confer to Grantee or Grantee’s
Beneficiary, executors or administrators any rights of a stockholder of the
Corporation unless and until Shares are in fact issued to such person in
connection with the Units. Nothing in this Agreement shall interfere
with or limit in any way the right of the Corporation or any Affiliate to
terminate Grantee’s employment at any time, nor confer upon Grantee any right to
continue in employment of the Corporation or any Affiliate. This
Award is not a promise that additional awards will be made to Grantee in the
future.
7. Payment
of Taxes. The Corporation or any Affiliate employing Grantee has
the authority and the right to deduct or withhold, or require Grantee to remit
to the employer, an amount sufficient to satisfy federal, state, and local
taxes
(including Grantee’s FICA obligation) required by law to be withheld with
respect to any taxable event arising as a result of the vesting or settlement
of
the Units or Dividend Equivalents. The withholding requirement may be
satisfied, in whole or in part, at the election of the Corporation’s Chief
Financial Officer, by withholding from the settlement of the Units Shares having
a fair market value on the date of withholding equal to the minimum amount
(and
not any greater amount) required to be withheld for tax purposes, all in
accordance with such procedures as the Chief Financial Officer
establishes. The obligations of the Corporation under this Agreement
will be conditional on such payment or arrangements, and the Corporation, and,
where applicable, its Affiliates will, to the extent permitted by law, have
the
right to deduct any such taxes from any payment of any kind otherwise due to
Grantee.
8. Restrictions
on Issuance of Shares. If at any time the Committee shall
determine in its discretion, that registration, listing or qualification of
the
Shares underlying the Units upon any securities exchange or similar
self-regulatory organization or under any foreign, federal, or local law or
practice, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition to the settlement of the Units, the Units
will not be converted to Shares in whole or in part unless and until such
registration, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Committee.
9. Plan
Controls. The terms contained in the Plan shall be and are hereby
incorporated into and made a part of this Agreement and this Agreement shall
be
governed by and construed in accordance with the Plan. Without
limiting the foregoing, the terms and conditions of the Units, including the
number of shares and the class or series of capital stock which may be delivered
upon settlement of the Units, are subject to adjustment as provided in Article
V
of the Plan. In the event of any actual or alleged conflict between
the provisions of the Plan and the provisions of this Agreement, the provisions
of the Plan shall be controlling and determinative.
10. Notice. Notices
and communications hereunder must be in writing and either personally delivered
or sent by registered or certified United States mail, return receipt requested,
postage prepaid. Notices to the Corporation must be addressed to
Whitney Holding Corporation, ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
Attn: General Counsel, or any other address designated by the Corporation in
a
written notice to Grantee. Notices to Grantee will be directed to the
address of Grantee then currently on file with the Corporation, or at any other
address given by Grantee in a written notice to the
Corporation.
EXHIBIT
A
General
The
Units
will vest and become nonforfeitable on Vesting Date, based on the Corporation’s
composite performance ranking in ROAA and ROAE within a group of Peer Banks
over
the Performance Cycle, as described below, and provided that Grantee is employed
by the Corporation or any of its Affiliates on the Vesting Date or has incurred
a prior termination of employment due to death, Disability, Retirement or
involuntary severance without Cause. If Grantee’s employment
terminates prior to the Vesting Date due to death, Disability, Retirement or
involuntary severance without Cause, the Target Award will be adjusted to the
Prorated Target Award, but conversion of the Units to Shares in that event
will
not occur until the normal Conversion Date, and will be based on actual
performance through the Performance Cycle.
Performance
Measurement Formula
As
soon
as practical after the end of each calendar year of the Performance Cycle,
(i)
the Committee will certify the Corporation’s actual ROAA for that year, compare
it to the average ROAA of the five Peer Banks having the highest ROAA in that
year, and determine the Corporation’s percentage ranking of ROAA within that
group of Peer Banks for that year, and (ii) the Committee will certify the
Corporation’s actual ROAE for that year, compare it to the average ROAE of the
five Peer Banks having the highest ROAE in that year, and determine the
Corporation’s percentage ranking of ROAE within that group of Peer Banks for
that year. The Corporation’s percentage ranking in each category is
then weighted, 70% ROAA and 30% ROAE, to determine the Corporation’s composite
performance ranking for the year. As soon as practical after the end
of the Performance Cycle, the Committee shall certify the Corporation’s average
composite performance ranking over the entire Performance Cycle and determine
the number of Units (expressed as a percentage of Grantee’s Target Award, or
Prorated Target Award if applicable) that will vest on the Vesting Date and
be
converted to shares of Common Stock on the Conversion Date, in accordance with
the following table:
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Corporation’s
3-Year Average
Composite
Performance
Ranking
among Peer Banks
|
Percent
of Target Award
(or
Prorated Target Award)
Earned
|
|
100%
|
200%
|
|
98%
|
195%
|
|
96%
|
190%
|
|
94%
|
185%
|
|
92%
|
180%
|
|
90%
|
175%
|
|
88%
|
170%
|
|
86%
|
165%
|
|
84%
|
160%
|
|
82%
|
155%
|
|
80%
|
150%
|
|
78%
|
145%
|
|
76%
|
140%
|
|
74%
|
135%
|
|
72%
|
130%
|
|
70%
|
125%
|
|
68%
|
120%
|
|
66%
|
115%
|
|
64%
|
110%
|
|
62%
|
105%
|
|
60%
|
100%
|
|
58%
|
95.75%
|
|
56%
|
91.50%
|
|
54%
|
87.25%
|
|
52%
|
83.00%
|
|
50%
|
78.75%
|
|
48%
|
74.50%
|
|
46%
|
70.25%
|
|
44%
|
66.00%
|
|
42%
|
61.75%
|
|
40%
|
57.50%
|
|
38%
|
53.25%
|
|
36%
|
49.00%
|
|
34%
|
44.75%
|
|
32%
|
40.50%
|
|
30%
|
36.25%
|
|
28%
|
32.00%
|
|
26%
|
27.65%
|
|
25%
|
25.00%
|
|
<25%
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0.00%
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Change
in Control: Notwithstanding the above, upon the occurrence
of a Change in Control, the Performance Cycle will be deemed to have terminated
as of the December 31 next preceding the date of the Change in Control, and
the
Units will be deemed earned and vested at the higher of the Target Award (or
Prorated Target Award, if applicable) or the number of Units that would have
been earned based on the Corporation’s actual ROAA and ROAE performance during
such shortened Performance Cycle.
Code
Section 162(m): This award is intended to qualify as
performance-based compensation for purposes of Section 162(m) of the Internal
Revenue Code, and shall be earned based solely on the Corporation’s performance
in ROAA and ROAE as set forth in this Agreement. Any evaluation by
the Committee of the Corporation’s performance in ROAA and ROAE shall exclude
any of the following that occur during the Performance Cycle: the impact of
charges for discontinued operations, extraordinary items, and the cumulative
effects of tax or accounting changes, each as defined by generally accepted
accounting principles and as identified in the financial statements or notes
to
the financial statements. Such inclusions or exclusions shall be
prescribed in a form that meets the requirements of Code Section 162(m) for
deductibility.