MEMC ELECTRONIC MATERIALS, INC. PERFORMANCE UNIT AWARD AGREEMENT (Performance Vesting)
Exhibit
99.6
MEMC
ELECTRONIC MATERIALS, INC.
(Performance
Vesting)
2010
Equity Incentive Plan
THIS AGREEMENT is effective (DATE)
between MEMC Electronic Materials, Inc. (the “Company”) and (NAME) (the
“Participant”).
WHEREAS, the Company has adopted and
maintains the MEMC Electronic Materials, Inc. 2010 Equity Incentive Plan (the
“Plan”) to promote the interests of the Company and its stockholders by
providing the directors, key employees and consultants of the Company and its
Subsidiaries with an appropriate incentive to encourage them to continue in the
service and employ of the Company or Subsidiary and to improve the growth and
profitability of the Company; and
WHEREAS, the Plan provides for the
grant to Participants in the Plan of Performance Unit Awards, and the Company
wishes to grant Performance Unit Awards to certain employees in consideration
for their Employment with the Company or Subsidiary.
NOW, THEREFORE, in consideration of the
mutual promises set forth in this Agreement, the parties hereto hereby agree as
follows:
1. Grant
of Performance Unit Award. Subject to the terms and conditions
contained herein and in the Plan, the Company hereby grants effective on (DATE)
(the “Grant Date”) to the Participant the performance unit award (the
“Performance Unit Award”) described in this Agreement. The performance period for the
Performance Unit Award is the (YEARS) year period commencing (DATE) and ending (DATE) (the “Performance
Period”).
2. Incorporation
of Plan. All terms,
conditions and restrictions of the Plan are incorporated herein and made part
hereof as if stated herein. If there is any conflict between the
terms and conditions of the Plan and this Agreement, the terms and conditions of
the Plan, as interpreted by the Compensation Committee (the “Committee”), shall
govern. All capitalized terms used herein shall have the meaning
given to such terms in the Plan.
3. Terms
and Conditions of Performance Unit Award. The Performance Unit
Award evidenced hereby is subject to the following terms and
conditions:
(a) Participant’s
target Performance Unit Award opportunity for the Performance Period is (NUMBER)
percent (__%) of Participant’s average annualized base salary during the (YEAR)
years of the Performance Period (the “Target Incentive”). For
purposes of this Agreement, the average annualized base salary during the (YEAR)
year period of the Performance Period shall be the sum of the base salary of the
Participant on each of the anniversaries of the beginning date of the
Performance Period, divided by (NUMBER).
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(b) The Performance Unit Award granted to
the Participant hereby shall become vested in accordance with the vesting
schedule set forth as Schedule
I hereto, which schedule
incorporates certain performance goals.
(c) Subject
to early termination of this Award Agreement pursuant to Section 4 or below, as
soon as practicable, but no later than 90 days following the end of the
Performance Period, the Company will pay to Participant the Performance Unit
Award amount, if any, determined pursuant to Section 3(b) above. Such
amount shall be paid in Company common stock. The amount of such
common stock payable shall be determined by dividing the amount of the award
under Section 3(b) above by the Fair Market Value (as that term is used in the
Plan) of Company common stock on the date the stock is paid, rounding up any
fractional share of stock to the next whole share.
4. Termination of
Employment.
(a)
Notwithstanding the
foregoing, unless the Committee otherwise determines at a later date, if within
the two year period following a Change in Control the Participant’s Employment
is terminated by the Company without Cause or by the Participant for Good
Reason, the Performance Unit Award granted to the Participant hereby shall
become vested as of the effective date of the termination of the Participant’s
Employment with the Company.
(b) Except as
otherwise provided in Section 4(a) above, upon cessation of the Participant’s
Employment with the Company for any reason before (DATE),
the Performance Unit Award shall be forfeited, except as the Committee may
otherwise determine in its sole discretion.
5. [Forfeiture. If the Company is
required to prepare an accounting restatement due to the material noncompliance
of the Company, as a result of misconduct, with any financial reporting
requirement under the securities laws, as such terms are used in Section 304 of
the Xxxxxxxx-Xxxxx Act of 2002 or as interpreted by the Committee, then the
Committee in its sole discretion may require Participant to reimburse or forfeit
to the Company any payment received or to be received hereunder by Participant
during the 12-month period following the first public issuance or filing with
the Securities and Exchange Commission (whichever first occurs) of the financial
document embodying such financial reporting requirement.]
6. Tax
Withholding.
Participant shall pay all
applicable federal, state, local and foreign withholding taxes that the Company
is required to withhold at any time with respect to the Performance Unit
Award. Such payment shall be made in full, at Participant’s election,
in cash or check, by withholding from the Participant’s next normal payroll
check, by the tendering of a check by the Participant for the required
withholding amount.
7. Non-Transferability. The Performance
Unit Award awarded hereunder shall not be transferable by the
Participant. Except as may be required by the federal income tax
withholding provisions of the Code or by the tax laws of any State, the
interests of the Participant and his or her beneficiaries under this Agreement
are not subject to the claims of their creditors and may not be voluntarily or
involuntarily sold, transferred, alienated, assigned, pledged, anticipated, or
encumbered. Any attempt by the Participant or a beneficiary to sell,
transfer, alienate, assign, pledge, anticipate, encumber, charge or otherwise
dispose of any right to benefits payable hereunder shall be void.
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8. Shareholder
Rights. The Participant
shall not have any of the rights of a shareholder of the Company with respect to
Performance Unit Award, such as the right to vote.
9. Death
Benefits. In the event of the death of the Participant, the
Company shall transfer the vested portion of the Performance Unit Award, if any,
to the Participant’s legal representative or beneficiaries. Such
transfer shall be made within 30 days following death.
The Participant may designate a
beneficiary or beneficiaries (contingently, consecutively, or successively) of
such death benefit and, from time to time, may change his or her designated
beneficiary. A beneficiary may be a trust. A beneficiary
designation shall be made in writing in a form prescribed by the Company and
delivered to the Company while the Participant is alive. If there is
no designated beneficiary surviving at the death of the Participant, payment of
any death benefit of the Participant shall be made to the surviving spouse of
the Participant, if any, and if no such surviving spouse to the estate of the
Participant.
10. Integration. This
Agreement, and the other documents referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. There are no restrictions,
agreements, promises, representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth
herein. This Agreement, including without limitation the Plan,
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
11. Governing
Law. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware, without regard to the provisions governing conflict of
laws.
12. Amendment. This
Agreement may be amended by mutual consent of the parties hereto by written
agreement.
13. Code
Section 409A. The intent of the parties is that payments and
benefits under this Agreement comply with Section 409A of the Internal Revenue
Code of 1986, as amended, and the regulations and other guidance promulgated
thereunder and, accordingly, to the maximum extent permitted, this Agreement
shall be interpreted in accordance therewith.
14. Participant
Acknowledgment. By accepting this
grant, the Participant acknowledges receipt of a copy of the Plan, and
acknowledges that all decisions, determinations and interpretations of the
Committee in respect of the Plan, this Agreement and the Performance Unit Award
granted hereunder shall be final and conclusive.
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MEMC
ELECTRONIC MATERIALS, INC.
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By:
Xxx Xxxxxxxx (Interim)
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Title:
Senior Vice President, Human Resources
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SCHEDULE
I
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