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EXHIBIT
10.5
2008
BB&T
CORPORATION
AMENDED AND RESTATED 2004
STOCK INCENTIVE PLAN
Performance Unit Award
Agreement
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| Name of
Participant: |
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<<First Name>> <<MI>> <<Last
Name>> |
| Grant
Date: |
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______________, 2008 |
| Performance
Period: |
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January
1, 2008 through December 31, 2010 |
THIS AGREEMENT (the
“ Agreement ”), made effective as of
___________, 2008 (the “ Grant Date ”), between
BB&T CORPORATION, a North Carolina corporation (“
BB&T ”), and <<First Name>>
<<MI>> <<Last Name>>, an Employee (the
“ Participant ”);
RECITALS
:
BB&T desires to carry out
the purposes of the BB&T Corporation Amended and Restated 2004
Stock Incentive Plan, as it may be amended and/or restated (the
“ Plan ”), by affording the Participant a
long-term incentive compensation opportunity as hereinafter
provided.
In consideration of the
foregoing, of the mutual promises set forth below and of other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Incorporation of
Plan . The rights and duties of BB&T and the
Participant under this Agreement shall in all respects be subject
to and governed by the provisions of the Plan, the terms of which
are incorporated herein by reference. In the event of any conflict
between the provisions in the Agreement and those of the Plan, the
provisions of the Plan shall govern. Unless otherwise provided
herein, capitalized terms in this Agreement shall have the same
definitions as set forth in the Plan.
2. Performance
Award . Subject to the terms of this Agreement and the
Plan, BB&T hereby grants the Participant a long-term incentive
compensation opportunity relating to Performance Units (the “
Award ”) in accordance with the following
provisions:
(a) Performance Period
. The performance period (“ Performance Period
”) for the Award shall be January 1, 2008 through
December 31, 2010.
(b) Partial Performance
Period .
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(i) |
Involuntary Termination Without Cause, Death, Disability and
Retirement . If the Participant ceases to be a Participant in
the Plan during the Performance Period due to the
Participant’s termination of employment
(A) involuntarily by the Company and its Affiliates without
Cause, or (B) due to death, or Disability, or Retirement, the
Participant’s Award for the Performance Period shall be
payable in accordance with this Agreement, solely upon
the
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2008
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attainment of at least the
Threshold Level of Performance as provided in Section 2(c)
herein, and prorated to reflect such Participant’s actual
number of full months of employment during the Performance Period.
A termination shall be for “ Cause ” if the
termination of the Participant’s employment by the Company
and its Affiliates is on account of the Participant’s
(x) dishonesty, theft or embezzlement; (y) refusal or
failure to perform the Participant’s assigned duties for
BB&T or an Affiliate in a satisfactory manner; or
(z) engaging in any conduct that could be materially damaging
to BB&T or its Affiliates without a reasonable good faith
belief that such conduct was in the best interest of BB&T or
any of its Affiliates. The determination of whether termination is
for Cause shall be made by the Administrator (or its designee, to
the extent permitted under the Plan), and its determination shall
be final and conclusive.
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(ii) |
Change of Control . If, while the Participant is an
Employee, there is a Change of Control during the Performance
Period, the Participant’s Award for the Performance Period
shall be payable in accordance with this Agreement at one hundred
percent (100%) of the Participant’s Target with the
Target Level of Achievement being deemed attained for the
Performance Period as of the Change of Control and prorated to
reflect such Participant’s actual number of full months of
participation during the Performance Period through the date of the
Change of Control. |
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(iii) |
(1) For
purposes of Section 2(b)(ii) above, a “ Change of
Control ” will be deemed to have occurred on the earliest
of the following dates: (A) the date any person or group of
persons (as defined in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”)), together with its affiliates,
excluding employee benefit plans of BB&T and its Affiliates, is
or becomes, directly or indirectly, the “beneficial
owner” (as defined in Rule 13d-3 promulgated under the
Exchange Act) of securities of BB&T representing thirty percent
(30%) or more of the combined voting power of BB&T’s
then outstanding securities; or (B) the date when, as a result
of a tender offer or exchange offer for the purchase of securities
of BB&T (other than such an offer by BB&T for its own
securities), or as a result of a proxy contest, merger,
consolidation or sale of assets, or as a result of any combination
of the foregoing, individuals who at the beginning of any
consecutive twelve- (12-) month period during the Performance
Period of the Award constituted BB&T’s Board, plus new
directors whose election or nomination for election by
BB&T’s shareholders is approved by a vote of at least
two-thirds of the directors still in office who were directors at
the beginning of such twelve- (12-) month period (collectively, the
“ Continuing
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2008
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Directors ”),
cease for any reason during such twelve- (12-) month period to
constitute at least two-thirds of the members of such board of
directors; (C) the date the shareholders of BB&T approve
an agreement for the sale or disposition by BB&T of all or
substantially all of BB&T’s assets within the meaning of
Section 409A; or (D) the date that any one person, or
more than one person acting as a group, acquires ownership of stock
of BB&T that, together with stock held by such person or group
constitutes more than fifty percent (50%) of the total fair
market value or total voting power of the stock of BB&T within
the meaning of Section 409A.
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(2) Notwithstanding
Section 2(b)(iii)(1) above, the term “Change of
Control” shall not include any event that is a “Merger
of Equals.” For purposes of the Plan and this Agreement, the
term “Merger of Equals” means any event that
would otherwise qualify as a Change of Control if the event
(including, if applicable, the terms and conditions of the related
agreements, exhibits, annexes, and similar documents) satisfies all
of the following conditions as of the date of such event:
(A) the Board of BB&T or, if applicable, a majority of the
Continuing Directors has, prior to the change in control event,
approved the event; (B) at least fifty percent (50%) of
the common stock of the surviving corporation outstanding
immediately after consummation of the event, together with at least
fifty percent (50%) of the voting securities representing at
least fifty percent (50%) of the combined voting power of all
voting securities of the surviving corporation outstanding
immediately after the event shall be owned, directly or indirectly,
by the persons who were the owners, directly or indirectly, of the
common stock and voting securities of BB&T immediately before
the consummation of such event in substantially the same
proportions as their respective direct or indirect ownership
immediately before such event of the common stock and voting
securities of BB&T, respectively; (C) at least fifty
percent (50%) of the directors of the surviving corporation
immediately after the event shall be composed of directors who were
Directors or Continuing Directors immediately before the event; and
(D) the person who was the Chief Executive Officer
(“CEO”) of BB&T immediately before the event
shall be the CEO of the surviving corporation immediately after the
event. If a transaction constitutes a Merger of Equals, then,
notwithstanding the provisions of Section 2(b)(iii)(1) above,
the vesting of the Award will not be accelerated due to the Merger
of Equals, but the Award shall instead continue to vest, if at all,
in accordance with the provisions of Sections 2, 3 and 4
herein.
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2008
(c) Performance Measures
for Award . The pre-established three- (3-) year Performance
Period’s Performance Measure shall be applicable to the
Award, and the Participant’s targeted percentage (“
Target % ”) and potential projected cash payout to the
Participant, based upon the Level of Achievement, are as
follows:
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(i) |
Performance Measure: cash basis return on shareholders’
equity (“ ROE ”). |
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(ii) |
For purposes of the Award, there shall be levels of achievement
(“ Levels of Achievement ”), including,
threshold (“ Threshold ”), target (“
Target ”), and maximum (“ Maximum
”) (the Threshold Level of Achievement shall be a ROE of
16.26% for the Performance Period; the Target Level of Achievement
shall be a ROE 19.10% for the Performance Period; and the Maximum
Level of Achievement shall be a ROE of 25.12% for the Performance
Period). The Levels of Achievement range from the Threshold Level
of Achievement to the Maximum Level of Achievement as illustrated
in the Level of Achievement Chart attached hereto as Exhibit
A and made a part hereof. Levels of Achievement between a ROE
of 16.26% and a ROE of 25.12% that are not listed on the Level of
Achievement Chart, are interpolated by the Administrator in .01%
increments. |
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(iii) |
For avoidance of doubt in the interpretation of the Level of
Achievement Chart, there will not be an Award payout if the
Threshold Level of Achievement is not attained for the Performance
Period. If the Threshold Level of Achievement is attained for the
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