AMENDED AND RESTATED 2003 INCENTIVE PLAN OF ELECTRONIC DATA SYSTEMS CORPORATION PERFORMANCE RSU AWARD AGREEMENT DATED FEBRUARY 13, 2008 WILLIAM THOMAS Pursuant to the terms of the Amended and Restated 2003 Incentive Plan of Electronic Data Systems...
Exhibit 10.3
AMENDED AND RESTATED 2003 INCENTIVE PLAN
OF
ELECTRONIC DATA SYSTEMS CORPORATION
PERFORMANCE RSU AWARD AGREEMENT
DATED FEBRUARY 13, 2008
XXXXXXX XXXXXX
Pursuant to the terms of the Amended and Restated 2003 Incentive Plan of Electronic Data Systems Corporation, you have been granted performance-vesting restricted stock units of EDS Common Stock, subject to restrictions described in this agreement:
Performance RSU Target Award
30,000
This grant is made pursuant to the Performance RSU Award Agreement dated as of February 13, 2008, between EDS and you, which Agreement is attached hereto and made a part hereof.
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AMENDED AND RESTATED 2003 INCENTIVE PLAN
OF
ELECTRONIC DATA SYSTEMS CORPORATION
PERFORMANCE RSU AWARD AGREEMENT
This Performance RSU Award Agreement (herein called the "Agreement") is made and entered into effective as of February 13, 2008 (the "Date of Grant"), by and between Electronic Data Systems Corporation, a Delaware corporation ("EDS" or the "Company") and, when fully executed thereby in accordance with Paragraph 11(l) of this Agreement, the employee of EDS (or any of its subsidiaries) whose printed name is set forth on the cover and whose printed name and signature are set forth on the signature page of this Agreement ("Grantee"). Except as defined herein, capitalized terms shall have the same meaning ascribed to them under the Amended and Restated 2003 Incentive Plan of Electronic Data Systems Corporation, as from time to time amended (the "Plan"). To the extent that any provision of this Agreement conflicts with the express terms of the Plan, it is hereby acknowledged and agreed that the terms of the Plan shall control and, if necessary, the applicable provisions of this Agreement shall be hereby deemed amended so as to carry out the purpose and intent of the Plan.
1. Performance RSU Award. In order to encourage Xxxxxxx's contribution to the successful performance of the Company, EDS hereby grants to Grantee as of the Date of Grant, pursuant to the terms of the Plan and this Agreement, a Performance RSU Award (the "Performance RSU Award") representing the right to acquire shares of Common Stock. The number of shares that may become Vested Stock under this Performance RSU Award is set forth in Appendix A. Grantee hereby acknowledges and accepts such grant and the shares of Common Stock covered thereby upon such terms and subject to such performance requirements and other conditions, restrictions and limitations contained in this Agreement and the Plan.
2. Performance-based Vesting. The number of restricted stock units that vest based on Company performance and are issuable as Common Stock in accordance with this Agreement shall be determined using the table found in Appendix B and subject to the following provisions.
(a) Performance Period. The performance period shall be the period commencing on January 1, 2008 and ending on December 31, 2010.
(b) Performance Measures. Performance vesting shall be based on achievement against pre-determined targets for Free Cash Flow per Share, Return on Net Assets (RONA) and Top-Line Revenue, all of which will be measured by three-year compound annual growth rate (CAGR) and may be adjusted to exclude the impact of changes in accounting principles during the performance period. Other adjustments may be made as approved by the Committee or Board of Directors.
(c) Performance Targets. Threshold, target and maximum performance levels for each performance measure for the performance period are outlined in Appendix B.
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(d) Performance Vesting. The aggregate number of restricted stock units that may become Vested Stock pursuant to this Performance RSU Award will be determined relative to the Performance RSU Target Award as set forth on the cover page of this Agreement, will be based on the Company's level of performance with respect to each performance measure as set forth in Appendix B, subject to the following provisions:
(1) If actual results for a performance measure are between the threshold and target levels of performance, the number of restricted stock units that may become Vested Stock with respect to that performance measure will be interpolated to reflect the performance between threshold and the lowest point of the target range (or target minimum).
(2) If actual results for a performance measure are between the target and maximum levels of performance, the number of restricted stock units that may become Vested Stock with respect to that performance measure will equal the target plus an additional number of restricted stock units interpolated to reflect performance between the highest point of the target range (or target maximum) and maximum.
(3) If actual results for a performance measure are at or below the threshold level of performance, then none of the restricted stock units will become Vested Stock with respect to that performance measure. If actual results for a performance measure exceed the maximum level of performance, no additional restricted stock units will become Vested Stock in excess of the maximum amounts set forth in Appendix B.
(e) Vesting Date. The date upon which any restricted stock units that may become Vested Stock pursuant to this Performance RSU Award shall be February 28, 2011 (the "Vesting Date") so long as the New York Stock Exchange shall be open for trading on such date (or on the preceding business day if there shall have been no trading on the Vesting Date), or such other date during 2011 as determined by the Committee when such Committee determines the extent to which the Company has achieved the performance measures pursuant to Paragraph 2(d) outlined above. The Vesting Date will normally occur no later than 90 days after the end of the Performance Period. Issuance of shares of Common Stock to Grantee shall occur within five days after the Vesting Date.
3. Effect of Certain Events. With the exception of any Performance RSUs that may vest pursuant to the terms of Grantee's current Executive Severance Benefit Agreement or Change of Control Employment Agreement (or pursuant to the terms of any successor severance or change of control agreements), the following provisions shall apply.
(a) If Grantee is separated from service with the Company prior to the Vesting Date because of Grantee's voluntary or involuntary termination for any reason, other than Grantee's death or Total Disability, then the Performance RSU Award and Xxxxxxx's right to receive shares of Vested Stock hereunder shall terminate, without any payment of consideration by the Company to Grantee.
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(b) If Grantee is separated from service with the Company prior to the Vesting Date because of Xxxxxxx's death or Total Disability, then the Performance RSU Target Award shall be considered to become immediately and unconditionally Vested Stock without regard to performance as described in Paragraph 2 above. The Vested Stock shall be issued on Xxxxxxx's separation from service.
(c) In the event a Change of Control occurs prior to the Vesting Date, the Performance RSU Target Award shall be considered to become immediately earned ("Earned Award") and shall be converted to such consideration as the Committee deems appropriate (e.g., cash or equity in the purchaser or successor) having an aggregate fair market value equal to the aggregate Fair Market Value (as defined in Section 3 of the Plan) of the Performance RSU Target Award as of the date of such Change of Control.
(1) Except as provided in subparagraphs (2) and (3) below, the Earned Award shall be issued or paid, as applicable, to Grantee within five days after the Vesting Date.
(2) If, after the Change of Control but prior to the Vesting Date, Grantee is separated from service with the Company, or any purchaser or successor to the Company, because of Xxxxxxx's voluntary termination for any reason or involuntary termination with Cause (as hereinafter defined), then Xxxxxxx's right to receive the Earned Award shall terminate, without any payment of consideration to Grantee.
(3) If, after the Change of Control but prior to the Vesting Date, Grantee is separated from service with the Company, or any purchaser or successor to the Company, because of Xxxxxxx's death or Total Disability or because of Grantee's involuntary termination without Cause, then the Earned Award shall be issued or paid, as applicable, to Grantee on Grantee's separation from service.
4. Restrictions on Transfer. Except as provided in Section 14 of the Plan, the Performance RSU Award granted hereunder to Grantee may not be sold, assigned, transferred, pledged or otherwise encumbered, whether voluntarily or involuntarily, by operation of law or otherwise. Consistent with the foregoing and except as contemplated by Paragraph 5 below, no right or benefit under this Agreement shall be subject to transfer, anticipation, alienation, sale, assignment, pledge, encumbrance or charge, whether voluntary, involuntary, by operation of law or otherwise, and any attempt to transfer, anticipate, alienate, sell, assign, pledge, encumber or charge the same shall be void. No right or benefit hereunder shall in any manner be liable for or subject to any debts, contracts, liabilities or torts of the person entitled to such benefits. If Grantee or Xxxxxxx's Beneficiary (if any) after Xxxxxxx's death shall become bankrupt or attempt to transfer, anticipate, alienate, assign, sell, pledge, encumber or charge any right or benefit hereunder other than as contemplated by Paragraph 5 below, or if any creditor shall attempt to subject the same to a writ of garnishment, attachment, execution, sequestration or any other form of process or involuntary lien or seizure, then such right or benefit shall cease and terminate.
5. Beneficiary Designations. Grantee may file with the Stock Plans Administration Department of EDS, on such form as may be prescribed by EDS, a designation of one or more beneficiaries (each, a "Beneficiary") to whom shares otherwise due Grantee shall be distributed in the event of the death of Grantee while serving in the employ of the Company. Grantee shall have the right to change the Beneficiary or Beneficiaries from time to time; provided, however, that any change shall not become effective until received in writing by the Stock Plans Administration Department of EDS. If any designated
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Beneficiary survives Grantee but dies before receiving all of Xxxxxxx's benefits hereunder, any remaining benefits due Grantee shall be distributed to the deceased Beneficiary's estate. If there is no effective Beneficiary designation on file at the time of Grantee's death, or if the designated Beneficiary or Beneficiaries have all predeceased Grantee, the payment of any remaining benefits shall be made to Xxxxxxx's estate.
6. Withholding Tax Requirements. Following such date upon which the restricted stock units issued pursuant to this Performance RSU Award shall become Vested Stock or upon such other event that requires tax withholding pursuant to this Agreement, EDS shall have the right to withhold shares of stock or take such other actions necessary to satisfy applicable tax withholding requirements as provided under the terms of the Plan.
7. Sale, Issuance and Delivery of Common Stock. Xxxxxxx agrees that Grantee shall not sell the Vested Stock and that EDS shall not be obligated to issue or deliver any shares of Common Stock if counsel to EDS determines that such sale, issuance or delivery would violate any applicable law or any rule or regulation of any governmental authority or any rule or regulation of, or agreement of EDS with, any securities exchange or association upon which the Common Stock is listed or quoted. Instead, such shares shall be issued and, if requested, delivered to Grantee as soon as EDS reasonably anticipates that issuance and/or delivery, as applicable, will not violate such laws or any rule or regulation of a stock exchange on which the shares are listed. EDS shall in no event be obligated to take any affirmative action in order to cause the issuance or delivery of shares of Common Stock to comply with any such law, rule, regulation or agreement. Subject to the foregoing and upon written request of Grantee, the Stock Plans Administration Department of EDS shall cause certificates for those shares of Vested Stock which Grantee is entitled to receive pursuant to this Agreement to be delivered to Grantee; provided, however, that the Company shall not be required to deliver certificates for such Vested Stock until Grantee has complied with his or her obligations to satisfy the applicable withholding tax requirements pursuant to Paragraph 6 above. Any Vested Stock shall be reflected in the Company's records as issued on the respective dates of issuance set forth in this Agreement, irrespective of whether Xxxxxxx has requested delivery of such shares or whether delivery of such shares is pending Grantee's satisfaction of his or her withholding tax obligations.
8. Prerequisites to Benefits.
(a) Neither Grantee nor any person claiming through Grantee shall have any right or interest in the shares of Common Stock covered by the Performance RSU Award awarded hereunder, unless and until all of the terms, conditions and provisions of this Agreement and the Plan which affect Grantee or such other person shall have been complied with as specified herein and therein.
(b) Xxxxxxx acknowledges that as a condition to receipt of the grant made hereunder, Xxxxxxx shall have delivered to the Company an executed copy of this Performance RSU Award Agreement and an executed Equity Related Agreement (as hereinafter defined).
(c) Grantee acknowledges that the terms of this Agreement shall govern in the event of a "change of control" unless the Grantee is subject to a separate change of control agreement between Grantee and the Company (if any) at the time of such change of control event, in which case the separate change of control agreement shall govern with respect to determining the effect on the Performance RSU Award made hereunder.
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9. No Rights as a Stockholder Prior to Vesting; No Payment of Dividend Equivalents. Grantee shall not have any right, title or interest in, or be entitled to vote or receive distributions in respect of, or otherwise be considered the owner of, any of the shares of Common Stock covered by the Performance RSU Award until such shares become Vested Stock pursuant to Paragraphs 2 or 3 above. The Grantee shall not be entitled to receive any dividend payment or equivalent in respect of the shares of Common Stock covered by the Performance RSU Award. Grantee shall be eligible to receive all dividends on shares that are Vested Stock if both the record date for such dividend payment is on or after the Date of Grant and such shares become Vested Stock on or prior to such record date.
10. Certain Definitions. For purposes of this Agreement, the following additional definitions shall be applicable:
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in effect on the date of this Agreement.
"Beneficiary" shall have the meaning set forth in Paragraph 5.
"Cause" shall mean (i) intentional or knowing refusal by Xxxxxxx to perform Grantee's lawful duties; (ii) material breach of any agreement between Grantee and the Company (or any of its Affiliates); (iii) material failure to follow EDS policies, directives or orders applicable to employees holding comparable positions; or (iv) intentional destruction or theft of Company property or falsification of Company documents.
"Change of Control" shall mean, in accordance with Treasury Regulation Section 1.409A-3(i)(5), any of the following:
(i) any one person, or more than one person acting as a group, acquires ownership of stock of the Company that, together with stock held by such person or group, constitutes more than 50% of either the total fair market value or total voting power of the stock of the Company; or
(ii) any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 30% or more of the total voting power of the stock of the Company; or
(iii) a majority of members of the Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or
(iv) any one person, or more than one person acting as a group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equal to 40% or more of all of the assets of the Company immediately prior to such acquisition or acquisitions.
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"Equity Related Agreement" shall mean an agreement between the Company and the Grantee associated with the grant of equity of the Company evidenced by this Agreement, which contains terms, condition and provisions regarding one or more of (a) competition by the Grantee with the Company; (b) maintenance of confidentiality of the Company's and/or clients' information; and (c) such other matters deemed necessary, desirable or appropriate by the Company for such an agreement in view of the rights and benefits conveyed in connection with the grant evidenced by this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Free Cash Flow" shall mean the net cash provided by operating activities, less capital expenditures.
"Free Cash Flow per Share" shall mean "as reported" Free Cash Flow divided by the "as reported" weighted-average common and common equivalent shares outstanding utilized to determine diluted earnings per share of common stock.
"Performance RSU Target Award" shall mean the target award of performance restricted stock units set forth on the cover page of this Agreement and in Appendix A.
"Return on Net Assets (RONA)" shall mean the net operating profit after tax or NOPAT (defined as net income plus after-tax interest expense and imputed interest) divided by average net assets (defined as shareholders' equity, plus interest bearing debt, plus net present value of operating leases, which will be averaged on a quarterly basis). Average net assets will be calculated excluding any "goodwill" from acquisitions that occurred prior to January 1, 2003, impact of pension liability change within equity on the balance sheet, and currency translation adjustment within equity on the balance sheet.
"Top-Line Revenue" shall mean sales earned as a result of business operations, services performed or merchandise sold including product sales, service fee income, consulting fees. Top-Line Revenue will also include any revenue growth from acquisitions, any revenue decline from divestitures, but will exclude the impact from exchange rate fluctuations between the comparable measurement periods.
"Total Disability" shall be determined by regulation of the Committee from time to time in its sole discretion.
"Vested Stock" shall mean shares of Common Stock covered by the Performance RSU Award which are issued in Xxxxxxx's name or otherwise issued for the benefit of Grantee.
"Vesting Date" shall have the meaning set forth in Paragraph 2(e).
11. Miscellaneous Provisions. For purposes of this Agreement, the following miscellaneous provisions shall be applicable:
(a) Receipt and Review of Plan and Prospectus. Xxxxxxx acknowledges receipt of a copy of the Plan, together with the prospectus relating thereto and to the Common Stock. Xxxxxxx further acknowledges notice of the terms, conditions, restrictions and limitations contained in the Plan and acknowledges the restrictions set forth in this Agreement.
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(b) Conflicts. The Company and Grantee agree to be bound by all of the terms, conditions, restrictions and limitations of the Plan which shall be amended from time to time in accordance with the terms thereof, but no such amendment shall, without Grantee's consent, adversely affect the rights specifically granted Grantee hereunder.
(c) Compliance with Section 409A of the Internal Revenue Code. Notwithstanding any provision in this Agreement to the contrary, this Agreement will be interpreted, applied and to the minimum extent necessary, unilaterally amended by the Committee, so that the Agreement does not fail to meet, and is operated in accordance with, the requirements of Section 409A of the Internal Revenue Code and the regulations thereunder.
(d) Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by Grantee, the Company and their respective permitted successors and assigns (including personal representatives, heirs and legatees), except that Grantee may not assign any rights or obligations under this Agreement except to the extent and in the manner expressly permitted herein. From and after the death of Xxxxxxx, the term "Grantee" shall be deemed to include the Beneficiary of Grantee (if any) or the Grantee's estate.
(e) Notices. Any notice under this Agreement to the Company shall be addressed to EDS Stock Plan Administration at 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxx 00000-0000, and any notice to Grantee shall be addressed to Grantee at the address listed within the Company's employee records. However, either party may at any time notify the other in writing of a new address for such purpose.
(f) Severability. If any provision of this Agreement for any reason should be found by any court of competent jurisdiction to be invalid, illegal or unenforceable, in whole or in part, such declaration shall not affect the validity, legality or enforceability of any remaining provision or portion thereof, which remaining provision or portion thereof shall remain in full force and effect as if this Agreement had been entered into with the invalid, illegal or unenforceable provision or portion thereof eliminated.
(g) Headings. The headings, captions and arrangements utilized in this Agreement shall not be construed to limit or modify the terms or meaning of this Agreement.
(h) Equitable Relief. The Company shall be entitled to enforce the terms and provisions of this Agreement by an action for injunction or specific performance or an action for damages or all of them, and any such action, including an action seeking specific performance or injunctive relief, may be brought in Plano, Collin County, Texas.
(i) Governing Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware. Any action, suit or proceeding arising out of any claim against the Company under this Agreement shall be brought exclusively in the federal or state courts located in the state in which EDS has its principal business headquarters.
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(j) Determinations by Committee. All references in this Agreement to determinations to be made by the Committee shall be deemed to include determinations by any person or persons to whom the Committee may delegate such authority in accordance with the rules adopted thereby. Notwithstanding anything contained in this Agreement to the contrary, the Committee has complete discretion as to whether or not to make any determinations hereunder and to the extent it does so make any determinations, such determinations are final.
(k) No Liability. No member of the Committee or any other person to whom the authority has been delegated shall be liable for anything done or omitted to be done by him or her, by any member of the Committee, or by any officer of the Company in connection with the performance of any duties or responsibilities under the Plan or this Agreement, except for his or her own willful misconduct or as expressly provided by applicable law.
(l) Validity of Agreement. This Agreement shall be valid, binding and effective upon EDS on the Date of Xxxxx. However, the grant contained in this Agreement shall be forfeited by the Grantee and this Agreement shall have no force and effect if it is not duly executed (whether manually and/or by electronic signature acceptable to EDS) by the Grantee within 60 days of the Date of Xxxxx.
(m) Employment Relationship. Notwithstanding any other provisions of this Agreement and unless contrary to applicable law or the terms of a written contract executed by an officer of EDS, employment with EDS is for an indefinite term and may be ended, with or without Cause, at any time by either the Grantee or EDS, with or without previous notice. Nothing in this document will be construed to oblige EDS to continue Xxxxxxx's employment for any particular time or under any particular terms and conditions of employment.
(n) Acquired Rights Waiver. Xxxxxxx understands that under the Plan, grants of Performance RSU Awards are made at the complete discretion of EDS pursuant to the Plan. Xxxxxxx understands that the Committee has complete authority to administer, construe and interpret the Plan, establish rules and regulations concerning the Plan, and perform all other acts deemed reasonable and proper in that regard, including the power to delegate to others the authority to assist in the administration of the Plan. Xxxxxxx understands that he/she does not acquire any additional rights as a result of being eligible to participate in the Plan. Grantee does not expect that any future grants will be made under the Plan, or any other plan, and Grantee does not expect that the benefits accruing under the Plan will be reflected in any severance, overtime, benefit, retirement or indemnity payments that EDS or any affiliate or subsidiary may make to him/her in the future. Grantee has been provided with a description of the Plan, and has read that description. Xxxxxxx fully understands his/her rights under the Plan, and in particular that Performance Awards granted under the Plan are non-transferable, except as provided under Section 14 of the Plan and Paragraph 4 of this Agreement. The offer to participate in the Plan does not constitute an acquired right. Xxxxxxx acknowledges and agrees that the grant made hereunder is not part of current employment compensation and that neither eligibility for, nor participation in, the Plan guarantees any right to future employment with EDS or any of its subsidiaries or affiliates.
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(o) Data Protection Waiver/Data Privacy Waiver. Xxxxxxx understands and consents to EDS or its agents or independent contractors appointed to administer the Plan obtaining and processing personal information of Xxxxxxx's relevant to the effective administration of the Plan and also consents that such personal information may be transmitted outside of the country of Xxxxxxx's employment and/or residence as appropriate for EDS business purposes in the administration of the Plan.
This Performance RSU Award Agreement dated as of February 13, 2008 has been delivered to Grantee pursuant to authority granted to the Chief Executive Officer of EDS and can be accepted only by the signature of the Grantee and timely delivery thereof to EDS in accordance with Paragraph 11(l) of this Agreement.
GRANTEE:
/S/ XXXXXXX XXXXXX
Signature
Xxxxxxx Xxxxxx
Printed Name
Work E-Mail Address
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Appendix A - Performance RSU Award Table
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Performance RSU Target Award |
At
or Below |
Target |
Maximum |
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[target award] |
0 |
[target award] |
[3x target award] |
Appendix B - Performance Vesting Table
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Measure |
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Return on
Net Assets (RONA) CAGR |
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Top-Line
Revenue CAGR |
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100% |
Payout as a % of Performance RSU Target Award
|
0% |
100% |
300% |
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