Contract
Exhibit 10.39
II-VI Incorporated
Performance Unit Award AGREEMENT
THIS PERFORMANCE UNIT AWARD AGREEMENT (this “Agreement”) is dated as of the Grant Date, as specified in the applicable Summary of Award (as defined below), by and between II-VI Incorporated, a Pennsylvania corporation (“II-VI”), and the Recipient, as specified in the applicable Summary of Award, who is a director, employee or consultant of II-VI or one of its subsidiaries (the “Recipient”).
Reference is made to the Summary of Award (the “Summary of Award”) issued to the Recipient with respect to the applicable Award, which may be found on the MorganStanley SmithBarney Benefit Access System at xxx.xxxxxxxxxxxxx.xxx (or any successor system selected by II-VI) (the “Benefit Access System”). Reference further is made to the Summary Plan Description relating to the Plan (as defined below) which also may be found on the Benefit Access System.
All capitalized terms used herein, to the extent not defined, shall have the meanings set forth in the II-VI 2012 Omnibus Incentive Plan (as amended from time to time, the “Plan”), a copy of which can be found on the Benefit Access System, and/or the applicable Summary of Award. Terms of the Plan and the Summary of Award are incorporated herein by this reference. This Agreement shall constitute an Award Agreement as that term is defined in the Plan and is intended to be a Qualified Performance-Based Award within the meaning of Section 2.28 of the Plan.
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If cumulative Total Shareholder Return (TSR) is greater than 40 percentage points below Market 50th Percentile and/or if there is an absolute negative cumulative Total Shareholder Return on II-VI Stock. |
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0.00% |
If cumulative Total Shareholder Return (TSR) is 40 percentage points below Market 50th Percentile and there is an absolute positive cumulative Total Shareholder Return on II-VI Stock. |
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50.00% (Threshold) |
If cumulative Total Shareholder Return (TSR) is fewer than 40 percentage points below Market 50th Percentile and cumulative Total Shareholder Return (TSR) is less than Market 50th Percentile and there is an absolute positive cumulative Total Shareholder Return on II-VI Stock. |
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Subtract 1.25% from 100.00% for each 1% below Market 50th Percentile |
If cumulative Total Shareholder Return (TSR) equals Market 50th Percentile and there is an absolute positive cumulative Total Shareholder Return on II-VI Stock. |
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100.00% |
If cumulative Total Shareholder Return (TSR) is greater than Market 50th Percentile and cumulative Total Shareholder Return (TSR) is less than 40 percentage points above Market 50th Percentile and there is an absolute positive cumulative Total Shareholder Return (TSR) on II-VI Stock. |
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Add 2.50% to 100.00% for each 1% above Market 50th Percentile |
If cumulative Total Shareholder Return (TSR) is greater than 40 percentage points above Market 50th Percentile and there is an absolute positive cumulative Total Shareholder Return (TSR) on II-VI Stock. |
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200.00% (Maximum Award) |
02 (PUTSR) August 2014 RTSR Performance Unit Award Agreement - 081314
Definitions:
Market is the Xxxxxxx 2000 as published on July 1, 2014. If a listing is removed from the Xxxxxxx 2000 during the Performance Period, it will not be replaced, nor will any listing be added for any other reason. The Xxxxxxx 2000 shall be a closed group for purposes of this Program.
Cumulative Total Shareholder Return (TSR) shall be based on the 30-day average closing stock price prior to July 1, 2014 ($14.06) and the 30-day average closing stock price prior to July 1, 2017.
Cumulative Total Shareholder Return shall be calculated as follows: ((Ending Stock Price minus Beginning Stock Price ($14.06) plus dividends) divided by Beginning Stock Price ($14.06)
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13. Non-Competition; Non-Solicitation; Confidentiality.
(a) While the Recipient is employed by the Company and for a period of one (1) year after the termination or cessation of such employment for any reason (the “Restricted Period”), the Recipient will not directly or indirectly:
(i) Engage in any business or enterprise (whether as owner, partner, officer, director, employee, consultant, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held company), that develops, manufactures, markets or sells any product or service that competes with any product or service developed, manufactured, marketed or sold or planned to be developed, manufactured, marketed or sold, by the Company while the Recipient was employed by the Company, within the United States of America and/or any other country within which the Company has customers or prospective customers as of the date of such termination or cessation.
(ii) (A) Solicit for the purpose of selling or distributing any products or services that are the same or similar to those developed, manufactured, marketed or sold by the Company, (1) any customers of the Company, (2) any prospective customers from whom the Company has solicited business within the twelve (12) months prior to the Recipient’s termination or cessation of employment, or (3) any distributors, sales agents or other third-parties who sell to or refer potential customers in need of the types of products and services produced, marketed, licensed, sold or provided by the Company who have become known to Recipient as a result of his/her employment with the Company, or (B) induce or attempt to induce any vendor, supplier, licensee or other business relation of the Company to cease or restrict doing business with the Company, or in any way interfere with the relationship between any such vendor, supplier, licensee or business relation and the Company.
(iii) Either alone or in association with others (A) solicit, or permit any organization directly or indirectly controlled by the Recipient to solicit, any employee of the Company to leave the employ of the Company, or (B) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Recipient to solicit for employment, hire or engage as an independent contractor, any person who was employed by the Company at any time during the term of the Recipient’s employment with the Company; provided, that this clause (B) shall not apply to any individual whose employment with the Company has been terminated for a period of one year or longer.
(b) The Recipient and the Company agree that certain materials, including, but not limited to, information, data, technology and other materials relating to customers, programs, costs, marketing, investment, sales activities, promotion, credit and financial data, manufacturing processes, financing methods, plans or the business and affairs of the Company constitute proprietary confidential information and trade secrets. Accordingly, the Recipient will not at any time during or after the Recipient’s employment with the Company disclose or use for the Recipient’s own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise, other than the Company, any proprietary confidential information or trade secrets; provided that the foregoing shall not apply to information which is not unique to the Company or which is generally known to the industry or the public other than as a result of the Recipient’s breach of this covenant. The Recipient agrees that, upon termination of employment with the Company for any reason, the Recipient will immediately return to the Company all Company property including all memoranda, books, technical and/or lab notebooks, customer product and pricing data, papers, plans, information, letters and other data, and all copies thereof or therefrom, which in any way relate to the business of the Company, except that the Recipient may retain personal items. The Recipient further agrees that the Recipient will not retain or use for the Recipient’s account at any time any trade names, trademark or other proprietary business designation used or owned in connection with the business of the Company.
“Company” shall mean II-VI and/or any Subsidiary of II-VI that the Recipient is employed by or may become employed by or provide services to during the Recipient’s employment by II-VI or any such Subsidiary. The Restricted Period will be tolled during and for any period of time during which the Recipient is in violation of the restrictive covenants contained in this Section 13 and for any period of time which may be necessary to secure an order of court or injunction, either preliminary or permanent, to enforce such covenants, such that the cumulative time period during which the Recipient is in compliance with the restrictive covenants contained in Section 13 will not exceed the one (1) year period set forth above.
14. Remedies; Violation Clawback.
(a) II-VI and Recipient acknowledge and agree that that any violation by Recipient of any of the restrictive covenants contained in Section 13 would cause immediate, material and irreparable harm to the Company which may not adequately be compensated by money damages and, therefore, II-VI and the Company shall be entitled to injunctive relief (including, without limitation, one or more preliminary injunctions and/or ex parte restraining orders) in addition to, and not in derogation of, any other remedies provided by law, in equity or otherwise for such a violation including, but not limited to, the right to have such covenants specifically enforced by any court of competent jurisdiction, the rights under Section 14(b) below, and the right to require Recipient to account for and pay over to II-VI or the Company all benefits derived or received by Recipient as a result of any such breach of
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02 (PUTSR) August 2014 RTSR Performance Unit Award Agreement - 081314
covenant together with interest thereon, from the date of such initial violation until such sums are received by II-VI or the Company, as the case may be.
(b) In the event that the Recipient violates or breaches any of the covenants set forth in Section 13 of this Agreement, the Performance Units (whether vested or unvested) and the right to receive a cash payment for such Performance Units shall be forfeited. II-VI shall also have the right, in its sole discretion, in addition to any other remedies or damages provided by law, in equity or otherwise, to demand and require the Recipient, to the extent that any cash payment was received with respect to such Performance Units, to return and transfer to II-VI any such cash payment.
(c) The Recipient further agrees, as a condition to acceptance of these Performance Units, that these Performance Units, as well as any other incentive award previously granted to Recipient by II-VI, may be subject to the provisions of any other forfeiture or clawback policy that may be adopted by II-VI in the future.
II-VI Incorporated
Attention: Chief Financial Officer
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
or to Recipient at his most recent home address on record with II-VI or the Company. Notices are effective upon receipt.
18. Controlling Law. The validity, construction and effect of this Agreement will be determined in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to the conflict of laws. Recipient and II-VI hereby irrevocably submit to the exclusive jurisdiction of the state and Federal courts located in the Commonwealth of Pennsylvania and consent to the jurisdiction of any such court, provided, however, that, notwithstanding anything to the contrary set forth above, II-VI or the Company may file an action to enforce the covenants contained in Section 13 by seeking injunctive or other equitable relief in any appropriate court having jurisdiction, including but not limited to where the Recipient resides or where the Recipient was employed by II-VI or the Company. Recipient and II-VI also both irrevocably waive, to the fullest extent permitted by applicable law, any objection either may now or hereafter have to the laying of venue of any such dispute brought or injunctive or equitable relief sought in such court or any defense of inconvenient forum for the maintenance of such dispute and consent to the personal jurisdiction of any such court. The Company shall be a third-party beneficiary of this Agreement.
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[SIGNATURE PAGE FOLLOWS]
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02 (PUTSR) August 2014 RTSR Performance Unit Award Agreement - 081314
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Grant Date set forth above. Electronic acceptance of this Agreement by the Recipient pursuant to II-VI’s instructions to the Recipient (including through the Benefit Access System) shall constitute execution of this Agreement by the Recipient.
The Recipient agrees that his or her electronic acceptance of this Agreement, including but not limited to via the Benefit Access System, shall constitute his or her signature, and that he or she agrees to be bound by all of the terms and conditions of this Agreement.
II-VI INCORPORATED |
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By: |
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Name: |
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Xxxxx X. Xxxxxx |
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Title: |
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Vice President, Human Resources |
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PARTICIPANT |
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Electronic Acceptance via the Benefit Access System |
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02 (PUTSR) August 0000 XXXX Xxxxxxxxxxx Xxxx Xxxxx Xxxxxxxxx - 000000