EXHIBIT 10.7
LONG-TERM PERFORMANCE SHARE UNIT AWARD AGREEMENT
pursuant to the
W. P. XXXXX & CO. LLC
1997 SHARE INCENTIVE PLAN
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Participant: __________________________________
Date of Grant: January __, 20__
Number of Performance Share Units granted: ________________
This Long-Term Performance Share Unit Award Agreement (this "Agreement") is made
as of the Date of Grant set forth above by and between Company, a Delaware
limited liability company (the "Company"), and the individual whose name is set
forth above ("Participant"), whose address is in care of Company, pursuant to
the Company's 1997 Share Incentive Plan, as amended (the "Plan") and the
Long-Term Incentive Program thereunder. The terms of the Plan are incorporated
herein by reference, and terms defined in the Plan have the same meanings in
this Agreement unless otherwise defined herein or the context otherwise
requires. This Agreement is subject in all respects to the terms and provisions
of the Plan (including, without limitation, any amendments thereto adopted at
any time and from time to time unless such amendments are expressly intended not
to apply to the award provided hereunder). In the event of a conflict between
the terms of this Agreement and the terms of the Plan, the terms of the Plan
shall control.
1. Grant of Performance Share Units. The Company hereby grants to the
Participant, as of the Date of Grant specified above, the number of Performance
Share Units specified above (the "Target Award") with respect to the Listed
Shares of the Company ("Common Shares"). Subject to the terms and conditions
herein set forth, these Performance Share Units represent contingent commitments
by the Company to issue and deliver (hereafter referred to as "conversion") to
Participant, in recognition of the achievement of specified performance criteria
and Participant's continued service to the Company and at no cost to
Participant, Common Shares at a future date, with the maximum amount of Common
Shares subject to this award to equal 3 times the Target Award plus any Common
Shares issuable under Section 3 hereof, all as subject to adjustment as set
forth in Section 3 of the Plan. This Agreement does not entitle Participant to
any payment of cash compensation.
The Participant shall not have the rights of a stockholder in respect of the
Common Shares underlying this Award until such Common Shares are delivered to
the Participant in accordance with Section 4.
2. Performance Conditions. The Performance Share Units are subject to the
following performance conditions:
(a) Performance Period. The Performance Period with respect to this award shall
be the three calendar year period January 1, 20__ through December 31, 20__.
(b) Relative Performance. The number of Common Shares which Participant will be
entitled to receive from the Company upon conversion pursuant to this Agreement
following the completion of the Performance Period is directly related to the
actual level of performance achieved during such period, defined as Threshold,
Target, Stretch or Maximum.
(c) Performance Criteria. The Committee shall employ such criteria for
evaluating the performance of the Company over the Performance Period as the
Committee shall in its discretion deem appropriate (the "Performance Criteria").
These criteria, and the pre-established performance goals with respect thereto,
shall be communicated to Participant in a Performance Chart to accompany and be
made a part of this Agreement as Appendix A.
(d) Determination of Final Awards. As promptly as practicable upon the
completion of the Performance Period, the Committee shall assess and certify the
relative achievement of the Performance Criteria and determine the percentage
(not to exceed 300%), if any, of the Target Award to be awarded to Participant
(the full number of Common Shares resulting from the application of such
percentage being hereinafter called the "Final Award"), provided that the
Committee shall bear no liability for any delay in such assessment. The
Committee shall have the discretion to increase the Final Award, but not beyond
the Maximum, and shall have no discretion to reduce the Final Award if and to
the extent the Performance Criteria are satisfied. As promptly as practicable
upon the determination of the Final Award, the Company shall notify Participant
of the number of Common Shares to be issued in connection with the Final Award,
including Distribution Reinvestment Shares, as defined below, provided that the
Committee and the Company shall bear no liability for any delay in such
notification.
3. Dividend Equivalent Rights. The Company shall maintain a bookkeeping account
for Participant (the "Distribution Equivalent Account") for the purpose of
crediting additional Common Shares attributable to the reinvestment of dividends
on the Common Shares into which the Performance Share Units subject to this
Agreement may be converted, as if such dividends had been reinvested in such
Common Shares on the date of payment. On the date of payment of a cash dividend,
stock dividend, and other distributions made generally to the holders of Common
Shares, provided the record date for such distribution occurs on or after the
first day of the Performance Period and before recordation or delivery of the
Common Shares under Section 4 or conversion to Deferred Shares under Section 5,
the Company shall provisionally credit to Participant's Distribution Equivalent
Account a number of Common Shares (including fractions thereof) (the
"Distribution Reinvestment Shares") equal to (a)x(b)/(c), where (a) equals the
Target Award (expressed as the number of Common Shares to which such Award is
equivalent), (b) equals the dollar amount of such distribution per Common Share,
and (c) equals
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the closing price of Common Shares on the New York Stock Exchange on such date
of payment (or, if the Exchange is closed on such date, on the immediate prior
trading date).
In connection with the determination of the Final Award, the Company shall
recalculate the final number of Distribution Reinvestment Shares, if any,
deliverable to the Participant by assuming that, in the foregoing equation, on
each such payment date, (a) equals the Final Award (expressed as the number of
Common Shares to which such Award is equivalent).
The Common Shares credited to Participant's Distribution Equivalent Account
shall be subject to the same forfeiture restrictions, restrictions on
transferability, and elective deferral opportunities as apply to the Common
Shares into which the Performance Share Units subject to this Agreement may be
converted.
4. Delivery of Common Shares. Subject to the terms of the Plan, and any elective
deferral pursuant to Section 5 of this Agreement, within 2 1/2 months following
the year in which the Performance Period ends and the Final Award is no longer
subject to a substantial risk of forfeiture, the Company shall distribute to
Participant the number of Common Shares comprising the Final Award and the
number of Distribution Reinvestment Shares calculated as provided in Section 3.
In connection with the delivery of the Common Shares pursuant to this Agreement,
Participant agrees to execute any documents reasonably requested by the Company.
5. Elective Deferral of Receipt of Common Shares. If permitted by the Company,
Participant may elect, in accordance with written plans or procedures adopted by
the Company from time to time, to defer the distribution of all or any portion
of the Common Shares that would otherwise be distributed to Participant
hereunder pursuant to Section 4 ("Deferred Shares"). Any Deferred Shares shall
be credited to a bookkeeping account established on Participant's behalf under
Company's written plans and/or procedures then in effect with respect to such
shares.
6. Non-Transferability. The Performance Share Units created by this Agreement
are not transferable by Participant other than by will or the laws of descent
and distribution. Any attempt to transfer contrary to the provisions hereof
shall be null and void.
7. Termination of Employment.
(a) Forfeiture of All Rights. If Participant's employment with the Company
terminates for any reason other than Disability, Involuntary Dismissal,
Retirement or death prior to the conclusion of the Performance Period, the
Performance Share Units subject to this Agreement shall immediately be cancelled
and this Agreement shall become null and void and Participant (and Participant's
estate, designated beneficiary or other legal representative) shall forfeit any
rights or interests in and with respect to the Performance Share Units, the
Distribution Reinvestment Shares, or the Common Shares or Deferred Shares
referred to in this Agreement. Notwithstanding the foregoing, the Committee, in
its sole discretion, may determine, prior to the effective date of any such
termination, that all or a portion of any the Participant's unvested Performance
Share Units (or Distribution Reinvestment Shares, Common Shares or Deferred
Shares) shall not be so cancelled and forfeited.
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(b) Forfeiture of Pro-Rated Rights. If the Participant's employment with the
Company terminates prior to the conclusion of the Performance Period due to the
Participant's Disability, Involuntary Dismissal, Retirement or death,
Participant or Participant's beneficiary, as the case may be, will be entitled
to receive a pro-rata portion of the Final Award, contingent upon satisfaction
of the Performance Criteria, and any Distribution Reinvestment Shares credited
in connection therewith, issued to the Participant at the time specified in
Section 4 of this Agreement; except that, in the event such amount is
conditioned upon a separation from service and not compensation the Participant
could receive without separating from service, then no such payment may be made
to a Participant who is a "specified employee" under Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code") until the first day
following the six-month anniversary of the Participant's separation from
service. The pro-rata number of Common Shares to be delivered to Participant as
his or her Final Award will be calculated as (a) x (b)/(c), where (a) equals the
number of shares that would have comprised the Final Award had the last day of
the final year of Participant's employment been the last day of the Performance
Period, (b) equals the number of days from January __, 20__ to Participant's
last date of employment with the Company prior to such Disability, Involuntary
Dismissal, Retirement or death, and (c) equals 1,095. Distribution Reinvestment
Shares in connection with such Final Award shall be calculated as provided in
Section 3 through the last day of the final year of Participant's employment.
Except with respect to such pro-rated portion of the Final Award and the
Dividend Reinvestment Shares associated therewith, the Participant shall have no
other or further rights to Performance Share Units, Dividend Reinvestment
Shares, Common Shares or Deferred Shares under this Agreement. The pro-rated
Final Award as approved by the Committee shall be final and binding on the
Participant and the Company.
(c) Definitions. For purposes of this Agreement, "Disability" shall have the
same meaning set forth in any employment agreement between the Company and
Participant; in the absence of such an agreement, "Disability" means disability
as determined in accordance with Section 409A of the Code.
For purposes of this Agreement, "employment with the Company" shall mean and
include any employment by a Subsidiary of the Company and may in the Committee's
sole discretion also include any employment by an Affiliate of the Company that
is not a Subsidiary of the Company.
For purposes of this Agreement, "Involuntary Dismissal" shall mean the
termination of Participant's employment with the Company through and directly
attributable to an action taken by the Board, the Committee, or the Company,
other than dismissal for Cause. For purposes of this Agreement, "Cause" shall
have the same meaning set forth in any employment agreement between the Company
(or any Subsidiary or Affiliate) and Participant; in the absence of such an
agreement, "Cause" shall have the meaning set forth in Section 1 of the Plan.
For purposes of this Agreement, "Retirement" shall mean the Participant's
termination of employment with the Company (other than for Cause) after reaching
Early Retirement Age or Normal Retirement Age, in each case as defined in the
Xxxxx Asset Management Corp. Profit
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Sharing Plan.
8. Withholding of Income and Other Taxes. To the extent required by any federal,
state or local law, the Participant shall make such arrangements as may be
required or be satisfactory to the Company, in its sole and absolute discretion,
for the payment of any tax withholding obligations that arise in connection with
the payment of the Common Shares underlying the Performance Share Units. The
Company shall not be required to deliver any Common Shares under this Agreement
until such obligations are satisfied.
9. Adjustments. The Performance Share Units, Common Shares and Dividend
Reinvestment Shares are subject to adjustment as provided in Section 3 of the
Plan.
10. Legal Compliance. The Company may postpone the time of delivery of
certificates of its Common Shares for such additional time as the Company shall
deem necessary or desirable to enable it to comply with the registration
requirements of the Securities Act of 1933 (the "Securities Act") or the
Securities Exchange Act of 1934 (the "Exchange Act") or any Rules or Regulations
of the Securities and Exchange Commission promulgated thereunder or the
requirements of other applicable laws, including state laws relating to
authorization, issuance or sale of securities and including the rules and
regulations of the New York Stock Exchange or such other exchange on which the
Common Shares may then be listed. The Participant represents and agrees that he
or she is acquiring any Common Shares upon payment of the Performance Share
Units for his or her own account and not with the intention of reselling or
distributing the Common Shares, except as permitted under this Agreement and any
applicable federal and state securities laws. The Company shall have the right
to take any actions it may deem necessary or appropriate to ensure that any
issuance of Shares complies with applicable federal and state securities laws.
If Participant fails to accept delivery of the Common Shares upon tender of
delivery thereof, his or her right with respect to such undelivered Common
Shares may be terminated in the Company's discretion, or terminated in
accordance with applicable law.
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11. Miscellaneous Provisions.
(a) Effect on Other Employee Benefit Plans. The value of the Performance Share
Units granted pursuant to this Agreement and the value of Common Shares issued
and delivered hereunder will not be included as compensation, earnings, salary
or other similar terms used when calculating Participant's benefits under any
employee benefit plan sponsored by the Company (or any Subsidiary), except as
such plan may otherwise expressly provide.
(b) No Employment Rights. The award of Performance Shares Units granted pursuant
to this Agreement does not give Participant any right to remain employed by the
Company and there is no obligation for uniformity of treatment of the
Participant with any other participant or employee.
(c) Entire Agreement; Amendment. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter contained herein,
and supersedes all prior agreements or prior understandings, whether written or
oral, between the parties relating to such subject matter. Except as provided
herein, this Agreement may not be modified or amended in a manner materially
adverse to the Participant, except by a writing signed by both the Company and
Participant.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the
principles of conflict of laws thereof.
(e) Notices. Any notice which may be required or permitted under this Agreement
shall be in writing and shall be delivered in person, or via facsimile
transmission, overnight courier service or certified mail, return receipt
requested, postage prepaid, properly addressed as follows:
If such notice is to the Company, to the attention of the Corporate
Secretary of Company, or at such other address as the Company, by notice to the
Participant, shall designate in writing from time to time.
If such notice is to Participant, at his or her address as shown on
the Company's records, or at such other address as Participant, by notice to the
Company, shall designate in writing from time to time.
(f) Compliance with Laws. The issuance of the Common Shares pursuant to this
Agreement shall be subject to, and shall comply with, any applicable
requirements of any federal and state securities laws, rules and regulations
(including, without limitation, the provisions of the Securities Act, the
Exchange Act and the respective rules and regulations promulgated thereunder)
and any other law or regulation applicable thereto, including the rules and
regulations of the New York Stock Exchange or such other exchange on which the
Common Shares may then be listed. The Company shall not be obligated to issue
any Common Shares pursuant to this Agreement if such issuance would violate any
such requirements.
(g) Binding Agreement; Assignment. This Agreement shall inure to the benefit of,
be binding
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upon, and be enforceable by the Company and its successors and assigns.
Participant shall not assign any part of this Agreement without the prior
express written consent of the Company in it is discretion.
(h) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
(i) Headings. The titles and headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
(j) Further Assurances. Each party hereto shall do and perform (or shall cause
to be done and performed) all such further acts and shall execute and deliver
all such other agreements, certificates, instruments and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the Plan and the consummation of
the transactions contemplated there under.
(k) Severability. The invalidity or unenforceability of any provisions of this
Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of any provision of this Agreement in any
other jurisdiction, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, COMPANY has caused this Agreement to be executed on its
behalf by an officer of the Company thereunto duly authorized and Participant
has accepted the terms of this Agreement, both as of the date of grant.
COMPANY
By:
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Participant:
Name:
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Signature:
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Appendix A. Performance Chart
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