Avenue Financial Holdings Inc. 2012 Long-Term Incentive Plan

EX-10.2 8 d778277dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

Avenue Financial Holdings Inc.

2012 Long-Term Incentive Plan

I. BACKGROUND, PURPOSE AND DURATION

Effective Date. The Plan is effective as of January 24, 2012.

Purpose of the Plan. The Plan is intended to increase stockholder value and the success of the Company by motivating Participants (1) to perform to the best of their abilities, and (2) to achieve the Company’s objectives. The Plan’s goals are to be achieved by providing Participants with the opportunity to earn incentive awards for the achievement of goals relating to the performance of the Company.

II. DEFINITIONS

The following words and phrases shall have the following meaning unless a different meaning in plainly required by the context:

“Actual Award” means as to any Performance Period, the actual award (if any) payable to a Participant for the Performance Period. Each Actual Award is determined by the Payout Formula for the Performance Period, subject to the Committee’s authority under Section III(f) to eliminate or reduce the award otherwise determined by the Payout Formula.

“Affiliate” means any corporation or other entity (including, but not limited to, partnerships and joint ventures) controlled by the Company.

“Base Salary” means as to any Performance Period, the Participant’s annualized salary rate on the last day of the Performance Period. Such Base Salary shall be before both (a) deductions for taxes or benefits, and (b) deferrals of compensation pursuant to any applicable Company-sponsored plans and Affiliate-sponsored plans.

“Board” means the Board of Directors of the Company.

“CAMELS Rating” means the CAMELS Rating assigned to Avenue Bank by its principal banking regulator, reflecting the following factors: (i) capital adequacy, (ii) asset quality, (iii) management quality, (iv) earnings, (v) liquidity and (vi) sensitivity to market risk.

“Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or regulation thereunder shall include such section or regulation, if any valid regulation promulgated thereunder, and any comparable provision of any future legislation or regulation amended, supplementing or superseding such section or regulation.

“Committee” means the committee appointed by the Board (pursuant to Section V(a)) to administer the Plan.

“Company” means Avenue Financial Holdings, Inc.

“Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code, provided that the Committee in its discretion may determine whether a permanent and total disability exists in accordance with uniform and non-discriminatory standards adopted by the Company from time to time.

“Employee” means any employee of the Company or of an Affiliate, whether such employee is so employed at the time the Plan is adopted or becomes so employed subsequent to the adoption of the Plan.

“Fiscal Year” means the fiscal year of the Company.

“Pre-Tax Net Income” means as to any Performance Period, the income of the Company, before income tax expense, for the Performance Period determined in accordance with generally accepted accounting principles, provided that prior to the Performance Period the Committee shall determine whether any significant item(s) shall be included or excluded from such calculation with respect to one or more Participants.

“Participant” means as to any Performance Period, an Employee who has been selected by the Committee for participation in the Plan for that Performance Period.

“Payout Formula” means as to any Performance Period, the formula or payout matrix established by the Committee pursuant to Section 3(d) in order to determine the Actual Award (if any) to be paid to Participants. The formula or matrix may differ from Participant to Participant.

“Performance Period” generally shall mean any Fiscal Year, however, it may also mean any such other period of time which does not exceed three Fiscal Years, as determined by the Committee in its sole discretion. With respect to any Participant, there shall exist no more than three Performance Periods at any one time.

“Performance Goals” means the goal(s) (or combined goal(s)) determined by the Company (in its discretion) to be applicable to a Participant for a Target Award for a Performance Period. As determined by the Committee, the Performance Goals for any Target Award applicable to a Participant may provide for a targeted level or levels of achievement using one or more of the following measures: (a) CAMELS Rating, (b) Pre-Tax Net Income, (c) Satisfactory Performance Review, and (d) any other measure, whether objective or subjective, as may be determined from time to time by the Committee and reflected in an Actual Award. Performance Goals may differ from Participant to Participant, Performance Period to Performance Period and from award to ward. Any criteria used may be measured, as applicable, (i) in absolute terms, (ii) in relative terms (including, but not limited, passage of time and/or against another company or companies), (iii) against the performance of the Company as a whole or a segment of the Company and/or (iv) on a pre-tax or after-tax basis. Prior to the Determination Date, the Committee shall determine whether any element(s) shall be included in or excluded from the calculation of any Performance Goals with respect to any Participants.

“Plan” means the Avenue Financial Holdings, Inc. 2012 Long-Term Incentive Plan, as set forth in this instrument and as hereafter amended, modified or supplemented from time to time.

“Retirement” means, with respect to any Participant, a Termination of Employment occurring in accordance with a policy or policies established by the Committee (in its discretion) from time to time.

“Satisfactory Performance Review” means an Participant’s annual employment performance review that is deemed satisfactory by the Committee.

“Shares” means shares of the Company’s common stock.

“Target Award” means the target award payable under the Plan to a Participant for the Performance Period, expressed as a percentage of his or her Base Salary or a specific dollar amount, as determined by the Committee in accordance with Section III(c).

“Termination of Employment” means a cessation of the employee-employer relationship between an Employee and the Company or an Affiliate for any reason, including, but not by way of limitation, a termination by resignation, discharge, death, Disability, Retirement, or the disaffiliation of an Affiliate, but excluding any such termination where there is a simultaneous reemployment by the Company or an Affiliate.

III. SELECTION OF PARTICIPANTS AND DETERMINATION OF AWARDS

Selection of Participants. The Committee, in its sole discretion, shall select the Employees who shall be Participants for any Performance Period. The Committee, in its sole discretion, also may designate as Participants one or more individuals (by name or position) who are expected to become Employees during a Performance Period. Participation in the Plan is in the sole discretion of the Committee, and on a Performance Period by Performance Period basis. Accordingly, an Employee who is a Participant for a given Performance Period in no way is guaranteed or assured of being selected for participation in any subsequent Performance Period.

Determination of Performance Goals. The Committee, in its sole discretion, shall establish the Performance Goals for all eligible Participants for the Performance Period. Such Performance Goals shall be set forth in writing.

Determination on Target Awards. The Committee, in its sole discretion, shall establish a Target Award for each Participant. Each Participant’s Target Award shall be determined by the Committee, in its sole discretion, are each Target Award shall be set forth in writing.

Determination of Payout Formula or Formulae. On or prior to the Determination Date, the Committee, in its sole discretion, shall establish a Payout Formula or Formulae for purposes of determining the Actual Award (if any) payable to each Participant. Each Payout Formula shall (a) be in writing, (b) be based on a comparison or actual performance to the Performance Goals, (c) provide for the payment of a Participant’s Target Award if the Performance Goals for the Performance Period are achieved, and (d) provide for an Actual Award greater than or less than the Participant’s Target Award, depending upon the extent to which actual performance exceeds or gall below the Performance Goals.

Determination of Actual Awards. After the end of each Performance Period, the Committee shall certify in writing the extent to which the Performance Goals applicable to each Participant for the Performance Period were achieved or exceeded. The Actual Award for each Participant shall be determined by applying the Payout Formula to the level of actual performance that has been certified by the Committee. Notwithstanding any contrary provision of this Plan, the Committee,

in its sole discretion, may (a) eliminate or reduce the Actual Award payable to any Participant below that which otherwise would be payable under the Payout Formula, including discretion that is exercised through the establishment of additional objective or subjective goals, and (b) determine whether or not a Participant will receive an Actual Award in the event the Participant incurs a Termination of Employment prior to the date the Actual Award is to be paid pursuant to Section iv(b) below.

IV. PAYMENT OF AWARDS

Timing of Payment. Subject to Section III(f), payment of each Actual Award shall be made as soon as administratively practicable, however, in the case of any Performance Period based on a Fiscal year, in no event later than March 15^th of the year following the end of the applicable Performance Period.

Form of Payment. Each Actual Award shall be payable in Shares of restricted stock granted by the Company. The number of Shares of restricted stock granted shall be determined by dividing the Actual Award amount by the fair market value of a Share on the date that the payment is made, rounded up to the nearest whole number of Shares. For this purposed, “fair market value” shall mean the fair market value of the Shares as determined by the Board in good faith as of the date of payment of the Actual Award. Any restricted stock so awarded shall be either (a) vested immediately or (b) be subject to such additional vesting over a period of not more than four years, and/or be subject to additional vesting conditions, including specifically additional Performance Goals, as determined by the Committee in its discretion. The number of Shares of restricted stock granted pursuant to this Section IV(c) may be increased or decreased if such new award is granted by the Committee subject to Performance Goals and such increase or decrease otherwise meets the performance-based compensation requirements of Section 162(m) of the Code.

Payment in the Event of Death or Disability. If a Participant dies, or is determined to have a Disability, prior to the payment of an Actual Award, that was scheduled to be paid to him or her prior to death, or the determination of a Disability, for a prior Performance Period, the Award shall be paid, in the case of death, to his or her estate, and in the case of Disability, to the Participant or any other person authorized under applicable law.

Maximum Number of Shares to be Issued. Notwithstanding any provision herein to the contrary, but subject to adjustment as set forth below, the aggregate number of Shares of restricted stock that may be

issued pursuant to this Plan shall be 400,000 Shares. Any such Shares may be authorized and unissued Shares or Shares issued and thereafter acquired by the Company. If the outstanding Shares of the Company’s common stock are increased, decreased, or exchanged for a different number of kind of shares or other securities, or if additional shares or new or different shares or other securities are distributed with respect to each Share of stock or other securities, through merger, consolidation, sale of all or substantially all of the assets of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other distribution with respect to such Shares of stock or other securities, an appropriate and proportionate adjustment may be made in the maximum number and kind of Shares that may be issued pursuant to this Plan and the number of kind of Shares or other securities subject to outstanding Awards.

V. ADMINISTRATION

Committee is the Administrator. The Plan shall be administered by the Committee. The Committee shall consist of not less than two (2) members of the Board. The members of the Committee shall be appointed from time to time by, and serve at the pleasure of, the Board. As of the Effective Date of the Plan, the Plan shall be administered by the Compensation Committee of the Board.

Committee Authority. It shall be the duty of the Committee to administer the Plan in accordance with the Plan’s provisions. The Committee shall have all powers and discretion necessary or appropriate to administer the Plan and to control its operation, including, but not limited to, the power to (a) determine which Employees shall be granted awards, (b) prescribe the terms and conditions of awards, (c) interpret the Plan and the awards, (d) adopt such procedures and subplans as are necessary or appropriate to permit participation in the Plan by Employees who are foreign nationals or employed outside of the United States, (e) adopt rules for the administration, interpretation and application of the Plan as are consistent therewith, and (f) interpret, amend or revoke any such rules.

Decisions Binding. All determinations and decisions made by the Committee, the Board, and any delegate of the Committee pursuant to the provisions of the Plan shall be final, conclusive, and binding on all persons, and shall be given the maximum deference permitted by law.

Delegation by the Committee. The Committee, in its sole discretion and on such terms and conditions as it may provide, may delegate all

or part of its authority and powers under the Plan to one or more directors and/or officers of the Company; provided, however, that the Committee may not delegate its authority and/or powers with respect to awards that are intended to qualify as performance-based compensation under Section 162(m) of the Code.

VI. GENERAL PROVISIONS

Tax Withholding. The Company or any Affiliate, as determined by the Committee, shall withhold all applicable taxes from any Actual Award, including any federal, state and local taxes (including, but not limited to, the Participant’s FICA, and SDI obligations).

No Effect On Employment. Nothing in the Plan shall interfere with or limit in any way the right of the Company or an Affiliate, as applicable, to terminate any Participant’s employment or service at any time, with or without cause. For purposes of the Plan, transfer or employment of a Participant between the Company and any one of its Affiliates (or between Affiliates) shall not be deemed a Termination of Employment. Employment with the Company and its Affiliates is on an at-will basis only. The Company expressly reserves the right, which may exercised at any time and without regard to when during or after a Performance Period such exercise occurs, to terminate any individual’s employment with or without cause, and to treat him or her without regard to the effect which such treatment might have upon him or her as a Participant.

Participation. No Employee shall have the right to be selected to receive an award under this Plan, or, having been so selected, to be selected to receive a future award.

Indemnification. Each person who is or shall have been a member of the Committee, or of the Board, shall be indemnified and held harmless by the Company against and from (a) any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under the Plan or any award, and (b) from any and all amounts paid by him or her in settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any judgment in any such claim action, suit or proceeding against him or her, provide he or she shall give the Company an opportunity to handle and defend it on his or her behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company’s Certificate of Incorporation or bylaws, by contract, as a matter of law, or otherwise, or under any power that the Company may have to indemnify them or hold them harmless.

Successors. All obligations of the Company and any Affiliates under the Plan, with respect to awards granted hereunder, shall be binding on any successor to the Company and/or such Affiliate, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or otherwise, of all or substantially all of the business or assets of the Company or such Affiliate.

Beneficiary Designations. If permitted by the Committee, a Participant under the Plan may name a beneficiary or beneficiaries to whom any vested but unpaid award shall be paid in the event of the Participant’s death. Each such designation shall revoke all prior designations by the Participant and shall be effective only if given in a form and manner acceptable to the Committee. In the absence of any such designation, any vested benefits remaining unpaid at the Participant’s death shall be paid to the Participant’s estate.

Nontransferability of Awards. No award granted under the Plan may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will , by laws of descent and distribution, or to the limited extent provided in Section VI(f). All rights with respect to an award granted to a Participant shall be available during his or her lifetime only to the Participant.

VII. AMENDMENT, TERMINATION AND DURATION

Amendment, Suspension or Termination. The Board or the Committee, each in its sole discretion, may amend or terminate the Plan, or any part thereof, at any time and for any reason. The amendment suspension or termination of the Plan shall not, without the consent of the Participant, alter or impair any rights or obligations under any Target Award theretofore granted to such Participant. No award may be granted during any period of suspension or after termination of the Plan.

Duration of the Plan. The Plan shall commence on the date specified herein, and subject to Section VII(a) (regarding the Board of the Committee’s right to amend or terminate the Plan), shall remain in effect thereafter.

VIII. LEGAL CONSTRUCTION

Gender and Number. Except where otherwise indicated by the context, any masculine term used herein also shall include the feminine; the plural shall include the singular and the singular shall include the plural.

Severability. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included.

Requirements of Law. The granting of awards under the Plan shall be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.

Governing Law. The Plan and all award shall be construed in accordance with and governed by the laws of the State of Tennessee, but without regard to its conflict of law provisions.

Captions. Captions are provided herein for convenience only and shall not serve as a basis for interpretation or construction of the Plan.