NOTE:
Performance restricted stock unit awards made to members of the
Management Committee (“Participants”) of U.S. Bancorp
(the “Company”) after December 31, 2008 will have
the terms and conditions set forth in (a) each
Participant’s award summary (the “Award
Summary”), which can be accessed on the Citigroup/Smith
Barney Benefit Access Website at www.benefitaccess.com , and
(b) the form of Exhibit A hereto (which will be completed
to include all information called for therein) (the
“Completed Exhibit A”) provided to such
Participant as soon as administratively feasible following the date
on which the award is made. The Award Summary may be viewed at any
time on this Website, and the Award Summary may also be printed
out. In addition to the individual terms and conditions set forth
in the Award Summary and the Completed Exhibit A, each
performance restricted stock unit award will have the terms and
conditions set forth in the form of Performance Restricted Stock
Unit Award Agreement below. As a condition of each performance
restricted stock unit award, Participant accepts the terms and
conditions of the Performance Restricted Stock Unit Award
Agreement, the Award Summary and the Completed
Exhibit A.
U.S. BANCORP
PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS
AGREEMENT , together with
the Award Summary and the Completed Exhibit A which are
incorporated herein by reference (collectively, the
“Agreement”), sets forth the terms and conditions of a
performance restricted stock unit award representing the right to
receive shares of common stock of the Company, par value $0.01 per
share (the “Common Stock”). The Agreement is issued
pursuant to the Plan and is subject to its terms. Capitalized terms
that are not defined in the Agreement shall have the meaning
ascribed to such terms in the Plan.
The Company and
Participant agree as follows:
Subject to the
terms and conditions of the Plan and the Agreement, the Company
grants to Participant a performance restricted stock unit award
entitling Participant to the number of performance restricted stock
units (the “Units”) equal to the “Target Award
Number” set forth in Participant’s Award Summary (such
number of units, the “Target Award Number”). The Target
Award Number shall be adjusted upward or downward as provided in
the Completed Exhibit A. The number of Units that Participant
will receive under this Agreement, after giving effect to such
adjustment, is referred to herein as the “Final Award
Number.” Each Unit represents the right to receive one share
of Common Stock, subject to the vesting requirements and
distribution provisions of this Agreement and the terms of the
Plan. The shares of Common Stock distributable to Participant with
respect to the Units granted hereunder are referred to as the
“Shares.” Participant’s Award Summary sets forth
the date of grant of this award (the “Grant Date”). The
Completed Exhibit A sets forth (a) the performance period
over which the Final Award Number will be determined (the
“Performance Period”), and (b) the date on which the
Final Award Number will be determined (the “Determination
Date”).
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(a)
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Time Based Vesting
Conditions .
Subject to the terms and conditions of the Agreement, the Units
shall vest in installments on the dates set forth in the
Participant’s Award Summary (each such date, a
“Scheduled Vesting Date”), if the Participant remains
continuously employed by the Company or an Affiliate of the Company
until any such Scheduled Vesting Date. Except as otherwise provided
in the Agreement, if Participant ceases to be an employee of the
Company or any Affiliate prior to vesting of any Units in
accordance with the Award Summary, all of Participant’s
unvested Units shall be immediately and irrevocably
forfeited.
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(b)
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Continued Vesting Upon Termination
of Employment due to Retirement or Disability
. If Participant ceases
to be an employee of the Company or any Affiliate by reason of
Disability (as defined below) or Retirement (as defined below), the
Units shall not be forfeited, but shall continue to vest on the
Scheduled Vesting Dates in accordance with Participant’s
Award Summary as though such termination of employment had never
occurred, so long as the Participant has at all times since the
Grant Date complied with the terms of any confidentiality and
non-solicitation agreement between the Company or an Affiliate and
the Participant. For purposes of this Agreement, (i)
“Retirement” means termination of employment (other
than for gross and willful misconduct) by a Participant who is age
59 1/2 or older and has had 10 or more years of employment with the
Company or its Affiliates following such Participant’s most
recent date of hire by the Company or its Affiliates, and (ii)
“Disability” means leaving active employment and
qualifying for and receiving disability benefits under the
Company’s long-term disability programs as in effect from
time to time.
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(c)
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Acceleration of Vesting Upon
Death . If
Participant ceases to be an employee by reason of death, or if
Participant dies after termination of employment with the Company
or an Affiliate due to Disability or Retirement but prior to any
Scheduled Vesting Date, then the Units will become vested in
accordance with this Section 2(c). If such death occurs prior
to the last day of the Performance Period, a number of Units equal
to the Target Award Number will vest upon Participant’s
death. If the death occurs on or after the last day of the
Performance Period, then a number of Units equal to the Final Award
Number will vest upon Participant’s death. Notwithstanding
the foregoing, such accelerated vesting shall occur only if the
Participant has at all times since the Grant Date complied with the
terms of any confidentiality and non-solicitation agreement between
the Company or an Affiliate and the Participant.
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(d)
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Acceleration of Vesting Upon
Qualifying Termination . Notwithstanding the vesting
provisions contained in Sections 2(a) through (c) above, but
subject to the other terms and conditions of this Agreement, if
Participant has been continuously employed by the Company or any
Affiliate of the Company until the date of a
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Qualifying
Termination (as defined below), then immediately upon such
Qualifying Termination, Participant shall be vested in the number
of Units determined in accordance with this Section 2(d). If
the Qualifying Termination occurs prior to the last day of the
Performance Period, a number of Units equal to the Target Award
Number will vest upon such Qualifying Termination. If the
Qualifying Termination occurs on or after the last day of the
Performance Period, a number of Units equal to the Final Award
Number will vest upon such Qualifying Termination. For purposes of
this Section 2(d), the following terms shall have the
following definitions:
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(i)
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“Announcement Date”
shall mean the date of the public announcement of the transaction,
event or course of action that results in a Change in
Control.
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(ii)
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“Cause” shall mean
(A) the continued failure by Participant to substantially
perform Participant’s duties with the Company or any
Affiliate (other than any such failure resulting from
Participant’s Disability (as defined in Section 2(c)),
after a demand for substantial performance is delivered to
Participant that specifically identifies the manner in which the
Company believes that Participant has not substantially performed
Participant’s duties, and Participant has failed to resume
substantial performance of Participant’s duties on a
continuous basis, (B) gross and willful misconduct during the
course of employment (regardless of whether the misconduct occurs
on the Company’s premises), including, without limitation,
theft, assault, battery, malicious destruction of property, arson,
sabotage, embezzlement, harassment, acts or omissions which violate
the Company’s rules or policies (such as breaches of
confidentiality), or other conduct which demonstrates a willful or
reckless disregard of the interests of the Company or its
Affiliates or (C) Participant’s conviction of a crime
(including, without limitation, a misdemeanor offense) which
impairs Participant’s ability substantially to perform
Participant’s duties with the Company.
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(iii)
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Change in Control” shall mean
any of the following events occurring after the date of this
Agreement (but only if such event also constitutes a change in
ownership or effective control of the Company, or a change in the
ownership of a substantial portion of the assets of the Company,
within the meaning of Section 409A of the Code):
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(A)
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The
acquisition by any Person (as defined in Section 2(b)(vi)) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 35% or more of either (1) the then
outstanding shares of Common Stock (the “Outstanding Company
Common Stock”) or (2) the combined voting power of the
then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding
Company Voting Securities”); provided , however
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that, for
purposes of this clause (A), the following acquisitions shall not
constitute a Change in Control: (i) any acquisition directly
from the Company, (ii) any acquisition by the Company,
(iii) any acquisition by a subsidiary of the Company or any
employee benefit plan (or related trust) sponsored or maintained by
the Company or a subsidiary of the Company (a “Company
Entity”) or (iv) any acquisition by any corporation
pursuant to a transaction which complies with clause (i),
(ii) or (iii) of this clause (A); or
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(B)
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Individuals who, as of the Grant
Date, constitute the Company’s Board of Directors (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board of Directors (except as a result
of the death, retirement or disability of one or more members of
the Incumbent Board); provided , however , that any
individual becoming a director subsequent to the date of this
Agreement whose election, or nomination for election by the
Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, (1) any such
individual whose initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Incumbent Board, (2) any director designated by
or on behalf of a Person who has entered into an agreement with the
Company (or which is contemplating entering into an agreement) to
effect a Business Combination (as defined in
Section 2(b)(iv)(C)) with one or more entities that are not
Company Entities or (3) any director who serves in connection
with the act of the Board of Directors of increasing the number of
directors and filling vacancies in connection with, or in
contemplation of, any such Business Combination; or
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(C)
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Consummation of a reorganization,
merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a “Business
Combination”), in each case, unless, following such Business
Combination, (1) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock or the
combined voting power of the then outstanding voting securities
entitled to vote generally in the
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election of
directors, as the case may be, of the corporation resulting from
such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company
or all or substantially all of the Company’s assets either
directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such
Business Combination, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(2) no Person (excluding any Company Entity or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 35% or more of, respectively, the
then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation
except to the extent that such ownership existed prior to the
Business Combination and (3) at least a majority of the
members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board of D
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