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Exhibit 10.4
2003 LONG-TERM INCENTIVE PLAN OF
THE BANK OF NEW YORK COMPANY, INC.
PERFORMANCE SHARE UNIT AGREEMENT - CYCLES 3a and 3b
Total # of Xxxxx Xxxxx
Share Units Granted Date Price
------------------- ---- -----
Pursuant to the 2003 Long-Term Incentive Plan of The Bank of New York
Company, Inc. (the "Plan") the terms of which are incorporated in this
Agreement, you have been granted performance share units specified above with
each such unit denominated as a single share of Common Stock (the
"Performance Share Units") upon the following terms and conditions and the
terms and conditions of the Plan. The Performance Share Units are a portion
of your compensation during the service period, which for each cycle shall be
the Performance Cycle Measurement Period. A copy of the Plan is attached
hereto. Unless otherwise specified herein, capitalized terms shall be as
defined in the Plan.
The period during which performance will be measured to determine the
number of Performance Share Units which may be earned is indicated below.
# of
Performance Performance Cycle Share Units
Cycle Measurement Period Granted
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1. Status of Performance Share Units. An account for the
Performance Share Units has been or will be established in your name on the
books and records of the Company during the respective Performance Cycle
Measurement Period and through the Delivery Date (as hereinafter defined).
Each Performance Share Unit constitutes an unfunded and unsecured promise of
the Company to deliver (or cause to be delivered) to you, subject to the
terms of this Award Agreement, one share of Common Stock on the Delivery Date
or as otherwise provided herein. Until the Delivery Date, you have only the
rights of a general unsecured creditor, and no rights as a shareholder, of
the Company.
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2. Performance Goals. The performance goals to be achieved within
each of the Performance Cycles are set forth in the attached Exhibit A. For
each cycle, between 0% and 200% of the Performance Share Units granted under
this Agreement will be earned as of the conclusion of the applicable
Performance Cycle Measurement Period according to the schedule set forth in
Exhibit A.
3. No Dividend Rights. You will receive no dividends or dividend
equivalents with respect to any Performance Share Units. In the event you
receive any additional share units as a result of a stock split, stock
dividend or distribution with respect to the Performance Share Units, such
additional performance share units will be made subject to the same
restrictions set forth in this Agreement as if they were part of the original
grant of Performance Share Units.
4. Non-transferable. You may not sell, transfer, assign, pledge or
otherwise encumber or dispose of the Performance Share Units during the
Forfeiture Periods.
5. Determination of Earned Performance Share Units. During the
calendar quarter next succeeding the applicable Performance Cycle Measurement
Period, the Committee shall determine the number of Performance Share Units
you have earned for the Performance Cycle.
6. Payment of Common Stock for Performance Share Units. Within 30
days after the determination of the number of Performance Share Units you
have earned for a Performance Cycle or upon the occurrence of a Change of
Control (within the meaning of both the Plan and Section 409A of the Internal
Revenue Code, as amended (the "Code")), the Company shall cause to be issued
to you one share of Common Stock for each Performance Share Unit you have
earned. In the case of your death, the shares will be issued to the
beneficiary you have designated in writing or, in the absence of such
designation, to your estate.
7. Forfeiture for Violation of Rules and Regulations. In the event
you fail to comply with any rules or regulations the Company establishes with
respect to its businesses (including the Company's Code of Conduct Policy and
Procedures), the Committee may cancel or revoke all or any portion of the
Performance Share Units on or prior to the Delivery Date to which they
relate.
8. Termination of Employment. In the event of your Retirement on or
after your 55th birthday, your disability or your death, the Performance Cycle
Measurement Period will continue for its full term and you or your
beneficiary will be deemed to earn a prorated amount of Performance Share
Units based on the number of full months of the Performance Cycle Measurement
Period which have elapsed prior to such Retirement, disability or death. In
the event of your termination of employment for any other reason prior to the
last day of the applicable Performance Cycle Measurement Period, all
Performance Shares and Performance Share Units will be forfeited. In the
event of your death, in the absence of a beneficiary designation, delivery
will be made to your estate. For purposes of this Agreement only, the term
"Retirement" means your voluntary separation from service as an employee in
accordance with the policies of BNY Co. and affiliates on or after age 55 and
completion of at least one year of service with such companies. A payment
under the Plan due to your "Retirement" does not entitle you to a benefit
under any other plan or arrangement in which you may participate. For
purposes of any other benefit plan or arrangement, the terms of that plan or
arrangement will govern.
9. Withholding of Taxes. In the event that the Company is required
to withhold taxes on any income as a result of a distribution to you in
respect of all or any portion of your Performance Share Units, you agree to
pay to the Company the amount of any withholding taxes due or, in lieu
thereof, the Company will have the right to deduct from any payment of any
kind (either in cash or in stock, pursuant to procedures specified by the
Company from time to time) due you from the Company, the amount required to
be withheld (whether or not such payment is made pursuant to this Agreement).
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10. Section 409A Payment Delay. Notwithstanding any provision to the
contrary herein, to the extent any payment to be made to you in connection
with the termination of your employment with the Company would be subject to
the additional tax of Section 409A of the Code, such payment will be delayed
until six months after your termination (or earlier death or disability
(within the meaning of Section 409A)).
11. Miscellaneous. This Agreement (a) shall be binding upon and
inure to the benefit of any successor of the Company, (b) shall be governed
by the laws of the State of New York, without regard to any choice of law
provisions thereof, and (c) may not be amended except in writing. This grant
shall in no way affect your participation or benefits under any other plan or
benefit program maintained or provided by the Company. The Committee may, in
its discretion, reduce or eliminate the number of shares distributed with
respect to an Award of Performance Share Units, notwithstanding the
achievement of specified performance conditions. In the event of a conflict
between this Agreement and the Plan, the Plan shall govern, provided,
however, that in all events the Plan and this Agreement shall be interpreted
and administered in accordance with the provisions of Section 409A, to the
extent applicable to the Plan and your Performance Share Unit Grant. Nothing
in this Agreement shall be construed as giving you any right to continued
employment by the Company or affect any right the Company may have to
terminate or alter the terms and conditions of your employment or to be
included in any future plans of similar nature.
Please indicate your acceptance hereof by signing and returning the
enclosed copy of this Agreement.
Sincerely,
THE BANK OF NEW YORK COMPANY, INC.
By_______________________________________
Title: Vice Chairman and General Counsel
Accepted and Agreed to:
_______________________
Participant
