Performance Unit Agreement
Exhibit 10.8
| NUMBER OF | PERFORMANCE | ||||||||||
| GRANTEE | UNITS | GRANT | MEASUREMENT | ||||||||
| NAME | GRANTED | DATE | DATE | ||||||||
| «Full_Name» | «Units» | «Grant_Date» | «Performance Date» | ||||||||
I, «Full_Name», Social Security #«SSN», hereby accept the Equity-based Performance Units set forth in this Performance Unit Agreement, reflecting the grant on «Grant_Date» of «Units» units (“Performance Unit Agreement”) and agree to comply with the terms and conditions of the Performance Unit Agreement and of the Plan referenced in the Performance Unit Agreement.
By signing this cover sheet, you agree to all of the terms and conditions described in the attached Performance Unit Agreement and the Plan referenced therein.
Grantee:
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| (Signature) |
Company:
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| Xxxxx X. Xxxxxxx Chief Executive Officer |
PLEASE RETURN A COPY OF THIS SIGNED AGREEMENT TO:
WMS – Legal Department
Waukegan Office
PLEASE RETAIN THE ORIGINALLY SIGNED AGREEMENT FOR YOUR RECORDS
This document constitutes part of a prospectus covering securities
that have been registered under the Securities Act of 1933.
This Performance Unit Agreement (the “Performance Unit Agreement”) will evidence the grant to you on the Grant Date above approved by the Compensation Committee of the Board of Directors of WMS Industries Inc. (the “Company”) and ratified by the Board of Directors of «Units» units (the “Units”) under the Company’s 2005 Incentive Plan (the “Plan”). These Units are issued in accordance with and is subject to and conditioned upon all of the terms and conditions of this Performance Unit Agreement and the Plan as amended from time to time, provided, however, that no future amendment or termination of the Plan shall, without your consent, alter or impair any of your rights or obligations under the Plan, all of which are incorporated by reference in this Performance Unit Agreement as if fully set forth herein.
1. Performance Goals. The Company has set:
| a. | A performance period (the “Performance Period”) commencing on ___and ending on ___(the “Performance Measurement Date”). | |||
| b. | Performance goal(s) (the “Performance Goal(s)”) set forth on Exhibit A attached hereto and incorporated herein based on one or more of the following criteria: (1) revenues; (2) earnings from operations, earnings before or after taxes, earnings before or after interest, depreciation, amortization, incentives, service fees or extraordinary or special items; (3) net income or net income per common share (basic or diluted); (4) return on assets, return on net assets, return on investment, return on capital, or return on equity; (5) cash flow, free cash flow, cash flow return on investment, or net cash provided by operations; (6) economic value created or added; (7) operating margin or profit margin; (8) stock price, dividends or total stockholder return; and (9) strategic business criteria, consisting of one or more objectives based on meeting specified market penetration or value added, product development or introduction, geographic business expansion goals, cost targets, debt reduction, customer satisfaction, employee satisfaction, information technology, and goals relating to acquisitions or divestitures of subsidiaries, affiliates or joint ventures. | |||
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| c. | A performance matrix set forth on Exhibit A attached hereto and incorporated herein specifying the payout percentage (“Payout Percentage”) based on actual results vs. the Performance Goal(s). |
2. Form and Timing of Payment. The Units represent the right to a certain payout (“Payout”) equal to (a) the number of Units multiplied (b) by the base unit (“Base Unit”) set forth on Exhibit A hereto and additionally multiplied by (c) the Payout Percentage. Such consideration shall be distributed to you as soon as practicable following the Performance Measurement Date; provided however, that no consideration shall be distributed unless and until the Compensation Committee determines the Payout Percentage in accordance with the matrix.
3. Termination of Employment. The Units shall terminate immediately if, during the Performance Period, your service or employment with the Company ceases for any reason. Notwithstanding the foregoing, the Units will not so terminate, if, during the Performance Period, (a) you voluntarily terminate your service or employment with the Company (i) as a result of your permanent and total disability or (ii) with the written consent of the Company (which written consent expressly sets forth a statement to the effect that you remain entitled to all or some portion of the Units or (b) your service or employment is terminated by the Company for reasons other than for cause and the Company agrees in writing not to terminate all or any portion of the Units. The Units shall not be affected by any change in your position of service or employment so long as you continue to be an employee or a director of, or a consultant or an advisor to, the Company. If you should die during your service or employment with the Company within the Performance Period, on the Performance Measurement Date, your personal representatives or the person or persons to whom the Units shall pass by will or by the applicable laws of descent and distribution, will be entitled to receive a pro-rata amount of the Payout based on the portion of the Performance Period that you were in the service of or employed with the Company.
4. Forfeiture. The Compensation Committee may cancel, suspend, withhold or otherwise limit or restrict the Units at any time if you (i) are not in compliance with all applicable provisions of the Units or the Plan or (ii) engage in any activity inimical, contrary or harmful to the interests of the Company, including, but not limited to: (A) conduct related to the your service or employment for which either criminal or civil penalties against you may be sought, (B) violation of any policies of the Company, including, without limitation, the Company’s xxxxxxx xxxxxxx policy or anti-harassment policies or (C) participating in a hostile takeover attempt against the Company.
5. Change of Control. Notwithstanding any other provision herein, if a Change in Control (as defined in the Plan) shall occur during the Performance Period, then you shall be entitled to receive (a) if one of more of the Performance Goals has not been met at the time of the Change in Control, at least the Payout you would have received if the Payout Percentage were equal to 100%, (b) if all of the Performance Goals have been met or
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exceeded at the time of the Change in Control, the greater of (i) the Payout that you would have received if the Payout determination had been made on the date of the Change in Control date or (ii) the Payout determined on the Performance Measurement Date or (c) a greater Payout based on the determination by the Compensation Committee, in its sole and absolute discretion, of the Payout Percentage on the date of the Change in Control. Termination of your employment following a Change in Control will not terminate your right to receive the Payout set forth in this Paragraph 5.
6. Severability. Should a court of competent jurisdiction deem any of the provisions in this Performance Unit Agreement to be unenforceable in any respect, it is the intention of the parties to this Performance Unit Agreement that this Performance Unit Agreement be enforced to the greatest extent deemed to be enforceable.
7. Choice of Law. This Performance Unit Agreement shall be governed by and construed and interpreted in accordance with the substantive laws of the State of Delaware, without giving effect to any conflicts of law rule or principle that might require the application of the laws of another jurisdiction.
8. Securities Laws. The Company shall not be obligated to issue any shares pursuant to this Performance Unit Agreement if, in the opinion of counsel to the Company, the shares to be so issued are required to be registered or otherwise qualified under the Securities Act of 1933, as amended, or under any other applicable statute, regulation or ordinance affecting the sale of securities, unless and until such shares have been so registered or otherwise qualified.
9. Income Taxes. It is understood that the Company may establish, from time to time, appropriate procedures to provide for payment or withholding of such income or other taxes as may be required by law to be paid or withheld in connection with the Units. By the execution hereof, you hereby agree to pay to the Company or your Employer all such amounts requested by the Company to permit the Company to take any tax deduction available to it resulting from the Units. You also agree to comply with any procedures established, from time to time, by the Company to ensure that the Company receives prompt notice of the occurrence of any event which may create, or affect the timing or amount of, any obligation to pay or withhold any such taxes or which may make available to the Company any tax deduction resulting from the occurrence of such event.
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Exhibit A
Performance Goal(s), Matrix and Base Unit
Performance Goal(s):
Matrix:
Base Unit: $___or ___shares of Common Stock or ___
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