HILLENBRAND, INC. STOCK INCENTIVE PLAN PERFORMANCE BASED UNIT AWARD AGREEMENT
Exhibit 10.30
XXXXXXXXXXX, INC. STOCK INCENTIVE PLAN
PERFORMANCE BASED UNIT AWARD AGREEMENT
PERFORMANCE BASED UNIT AWARD AGREEMENT
This Performance Based Unit Award Agreement (this “Agreement”) is effective as of the day
of , 20 , between Xxxxxxxxxxx, Inc. (the “Company”) and (the “Employee”).
The Award of Performance Based Units made herein is a performance based award of restricted stock
units. The number of Units that will ultimately be earned under this Agreement, as well as the
number of shares of Common Stock that will be distributed in settling those earned Units, which
will not be determined until the end of the Measurement Period, will depend on the amount of
shareholder value created by the Company’s financial performance during the Measurement Period, as
compared to the expected amount of shareholder value to be created during the Measurement Period.
AWARD INFORMATION
Target Performance Based Unit Award (100% achievement of performance target) |
_____ Performance Based Units | |
Maximum Performance Based Unit Award (150% or greater achievement of performance target) |
_____ Performance Based Units | |
Measurement Period (three fiscal years)
|
October 1, 20_____ through September 30, 20_____ | |
Base Shareholder Value (at the beginning of Measurement Period) |
$__ million | |
Incremental Shareholder Value Expected
|
$__ million | |
Weighted Average Cost of Capital
|
_____% |
AWARD DETERMINATION
Award Formula
The number of Units that will be earned at the end of the Measurement Period is a function of
the amount of Incremental Shareholder Value Delivered over the Measurement Period as compared to
the Incremental Shareholder Value Expected to be created over the Measurement Period. Except as
otherwise provided below in the Terms and Conditions, at the end of the Measurement Period, the
Units earned will be the number of whole Units (rounded down) equal to the product of (a) the
number of Units comprising the Target Performance Based Unit Award, and (b) a multiplier, as
provided in the following table, based on the ratio, expressed as a percentage, of Incremental
Shareholder Value Delivered for the Measurement Period (as determined below) to the Incremental
Shareholder Value Expected for the Measurement Period:
| Incremental Shareholder Value Delivered | ||
| as Percentage of | ||
| Incremental Shareholder Value Expected | Multiplier | |
| (rounded down to nearest whole percent) | (rounded down to two decimal places) | |
Less than 50%
|
zero (no Units earned) | |
At least 50% but less than 80%
|
.2 plus an additional .01 for each full percentage point realized above minimum for range | |
At least 80% but less than 100%
|
.5 plus an additional .025 for each full percentage point realized above minimum for range | |
At least 100% but less than 110%
|
1.0 plus an additional .025 for each full percentage point realized above minimum for range | |
At least 110% but less than 150%
|
1.25 plus an additional .00625 for each full point realized above minimum for range | |
At least 150%
|
1.5 (all Units earned) |
Calculation of Incremental Shareholder Value Delivered
The amount of Incremental Shareholder Value Delivered during the Measurement Period is
calculated by subtracting the Base Shareholder Value from the Shareholder Value Delivered, and the
Shareholder Value Delivered is calculated by adding two components: the Net Operating Profit After
Tax (“NOPAT”) Component and the Cash Flows Component.
1. The NOPAT Component of Shareholder Value Delivered is the Company’s Adjusted NOPAT for the
last fiscal year of the Measurement Period, divided by the Weighted Average Cost of Capital.
2. The Cash Flows Component of Shareholder Value Delivered is the sum of the following:
(a) the Company’s Adjusted Cash Flows for the third fiscal year in the Measurement
Period;
(b) the Company’s Adjusted Cash Flows for the second fiscal year in the Measurement
Period, multiplied by the sum of 100 percent and the Weighted Average Cost of Capital; and
(c) the Company’s Adjusted Cash Flows for the first fiscal year in the Measurement
Period, multiplied by the square of the sum of 100 percent and the Weighted Average Cost of
Capital.
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TERMS AND CONDITIONS
1. Grant of Performance Based Units. Pursuant to and subject to the terms and
conditions of the Xxxxxxxxxxx, Inc. Stock Incentive Plan (as amended from time to time, the
“Plan”), the Company hereby awards to the Employee, who is an employee of the Company or one of its
Subsidiaries, the opportunity to earn the number of Performance Based Units that will
be determined at the end of the Measurement Period under the Award Determination section
above, up to but not exceeding the number of Performance Based Units specified above as the Maximum
Performance Based Unit Award (the “Units”). Each Unit represents the conditional right to receive
one share of the Company’s common stock, without par value (“Common Stock”). Upon settlement at
the end of the Measurement Period, the earned Units will be settled by the distribution to the
Employee of one share of Common Stock for each Unit being settled, plus that number of Dividend
Shares distributable with respect to the earned Units, as provided in Paragraphs 6 and 7 and
subject to withholding as provided in Paragraph 10.
2. Acceptance; Transfer Restrictions. The Employee hereby accepts the award of Units
described in this Agreement and agrees that the Units will be held by the Employee and the
Employee’s successors subject to (and will not be disposed of except in accordance with) all of the
restrictions, terms and conditions contained in this Agreement and the Plan. Except as otherwise
provided in this Agreement or the Plan, the Employee may not sell, assign, transfer, pledge or
otherwise dispose of or encumber any of the Units, any shares of Common Stock underlying the Units,
or any interest in the Units or underlying shares of Common Stock, until the Measurement Period
expires, at which time the Employee’s rights in the Units will be earned and settled to the extent
provided in this Agreement. Any purported sale, assignment, transfer, pledge or other disposition
or encumbrance in violation of this Agreement or the Plan will be void and of no effect.
3. Earning/Measurement Period. If the Employee remains employed by the Company or a
Subsidiary through the end of the Measurement Period, then at the end of the Measurement Period the
Units will become fully earned, to the extent determined under “Award Determination” above. If the
Employee does not remain employed through the end of the Measurement Period, the provisions of
Paragraph 8 below will apply in determining the number of Units, if any, that will become earned at
the end of the Measurement Period. All Units not earned at the end of the Measurement Period will
be forfeited, and the Employee will have no rights or interest in or to those forfeited Units.
4. Unfunded Obligations. The Company will reflect the Employee’s interests in the
Units and the underlying shares of Common Stock by means of bookkeeping entries on the financial
records of the Company, and this Agreement will not create in the Employee or any successors any
right to, or claim against any, specific assets of the Company or result in the creation of any
trust or escrow account for the Employee or any successors. With respect their interests under
this Agreement, the Employee and any successors will be general creditors of the Company.
5. Voting Rights. The Employee will not have any rights of a shareholder to vote the
shares of Common Stock underlying the Units until the Units are earned and settled after the end of
the Measurement Period. Once the Units are settled by distribution of shares of Common Stock, the
Employee will have all shareholder voting rights with respect to those shares of Common Stock.
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6. Dividends and Other Distributions; Dividend Shares. The Employee will not have any
rights of a shareholder to receive dividends or other distributions with respect to the shares of
Common Stock underlying the Units until the Units are earned and settled after the end of the
Measurement Period. Once the Units are settled by distribution of shares of Common
Stock, the Employee will have all shareholder rights to dividends and other distributions with
respect to those shares of Common Stock. However, during the Measurement Period, and thereafter
until such time as the shares attributable to earned Units are distributed to the Employee, the
Company will, on its books and records, credit the Employee with the number of notional shares of
the Company’s Common Stock (“Dividend Shares”) that could have been purchased on each Common Stock
dividend payment date, at the then current Fair Market Value, with the dividends that would have
been payable on the number of shares underlying the Units and on the Dividend Shares previously
credited to the Employee under this Paragraph. At the time settlement is made with respect to the
earned Units pursuant to Paragraph 7, the Company will distribute to the Employee (in addition to
and in the same manner as the shares attributable to the earned Units) that number of shares of
Common Stock (rounded up to the nearest whole share) equal to the credited Dividend Shares
multiplied by a fraction, the numerator of which is the number of earned Units and the denominator
of which is the number of all Units (being the Maximum Performance Based Unit Award). Any
remaining Dividend Shares on the Company’s records shall be forfeited and the Employee shall have
no right thereto or interest therein.
7. Actions after Earning is Determined. As soon after the end of the Measurement
Period as is practicable, and in any event on or before the end of the calendar year during which
the Measurement Period ends, the Company will settle the earned Units by distributing to the
Employee one share of Common Stock for each Unit earned under this Agreement. To distribute those
shares of Common Stock, the Company will, in its discretion, either deliver to the Employee stock
certificates representing, or shall instruct the Company’s transfer agent to recognize in book
entry form that the Employee is the registered holder of, the number of shares of Common Stock
attributable to the earned Units as of the end of the Measurement Period, free from any
restrictions or other terms and conditions of this Agreement. At that same time, the Company shall
take such actions as it shall deem appropriate to cancel the forfeited Units and to cause them to
no longer be recognized as outstanding awards under the Plan. In addition, the Company will issue
to the Employee that number of shares of Common Stock equal to the Dividend Shares to which the
Employee is entitled under Paragraph 6. The Employee (or his or her successors) shall execute and
deliver such instruments and take such other actions as the Company shall reasonably request with
respect to the actions to be taken pursuant to this Paragraph.
8. Termination of Employment. If the Employee’s employment with the Company and/or a
Subsidiary terminates during the Measurement Period (a transfer of employment among the Company and
its Subsidiaries will not be treated as a termination of employment), then all or some portion of
the Units that would otherwise have become earned Units had the Employee remained employed
throughout the entire Measurement Period, if any (the “Full Period Units”), will be earned or be
forfeited as follows:
(a) if the Employee’s employment terminates due to death, Disability or Retirement,
then at the end of the Measurement Period the number of Units that then become earned Units
will be equal to the product (rounded down to the nearest whole Unit) of (i) the number of
Full Period Units, and (ii) a fraction, the numerator of which is the sum (to a maximum of
156) of 52 plus the number of full weeks in the Measurement Period during which the Employee
was employed by the Company or a Subsidiary, and the denominator of which is 156;
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(b) if the Employee’s employment terminates due to involuntary termination without
Cause, then at the end of the Measurement Period the number of Units that then become earned
Units will be equal to the product (rounded down to the nearest whole Unit) of (i) the
number of Full Period Units, and (ii) a fraction, the numerator of which is the number of
full weeks in the Measurement Period during which the Employee was employed by the Company
or a Subsidiary, and the denominator of which is 156.
(c) if the Employee, at termination of employment, is a party to a written employment
agreement with the Company or a Subsidiary that provides for the voluntary termination of
employment by the Employee for Good Reason, and if the Employee terminates employment
voluntarily for Good Reason, then at the end of the Measurement Period the number of Units
that then become earned Units will be the same portion of the Full Period Units as if the
Employee’s employment had been involuntarily terminated without Cause, as determined under
subparagraph (b) of this Paragraph; and
(d) upon termination of the Employee’s employment for any reason other than those
described in subparagraph (a), (b), or (c) of this Paragraph, all of the Units will be
forfeited immediately upon the termination of the Employee’s employment.
9. Change in Control. Upon the occurrence of a Change in Control during the
Measurement Period, the number of Units that then become earned Units will be equal to the product
(rounded down to the nearest whole Unit) of (i) the number of Units equal to the Target Performance
Based Unit Award, and (ii) a fraction, the numerator of which is the number of full weeks in the
Measurement Period prior to the Change in Control, and the denominator of which is 156, and all
other Shares will be forfeited. If the Employee is a party to a Change in Control Agreement with
the Company or a Subsidiary that, by its terms, covers outstanding awards of performance based
restricted stock units, this Agreement supersedes the terms of that Change in Control Agreement
with respect to the Units and the earning or forfeiture thereof.
10. Potential Repayment Obligation. [This Section 10 is applicable only if the
Employee holds the office of Vice President, or a higher office, with the Company or a Subsidiary
as of the effective date of this Agreement.] If the Company is required, because of fraud or
negligence, to restate its financial statements for any fiscal year(s) included in the Measurement
Period and such restatement occurs after the end of the Measurement Period but within three (3)
years after the end of the fiscal year being restated (as so restated, the financial statements
restated within such three (3) year period are referred to herein as the “Restated Financial
Statements,” and for clarification purposes any restatement of the Company’s financial statements
for a fiscal year that occurs more than three (3) years after the end of such fiscal year shall not
be relevant under, and shall not be considered to be a Restated Financial Statement for purposes
of, this Section), and if the number of shares of Common Stock (including shares earned as Dividend
Shares) earned by the Employee under this Agreement (shares that vested and were not forfeited as
calculated in accordance with the Company’s financial statements prior to the restatement thereof,
being referred to herein as the “Previously Earned Shares”) is greater than the number of shares of
Common Stock that would have been earned by the Employee hereunder if the number of shares earned
had been calculated in accordance with the Restated Financial Statements (the “Recalculated Earned
Shares,” with the excess of the number of Previously Earned Shares over the number of Recalculated
Earned Shares being referred to herein as the “Excess Issued Shares”), then the
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Company may, in its
discretion, by written demand made upon the Employee at any time within three (3) years after the end of the
Measurement Period (the “Share Return Notification”), require the Employee to return to the Company
all or any lesser specified number of the Excess Issued Shares (with the number of shares to be
returned to the Company being referred to herein as the “Return Shares”). Within ninety (90) days
after the Share Return Notification is given to the Employee, the Employee shall either (a)
transfer to the Company, free and clear of all liens, security interests or other encumbrances,
that number of shares of the Company’s common stock equal to the Return Shares, or (b) pay to the
Company a sum equal to the Fair Market Value of the Return Shares as of the last day of the
Measurement Period, or (c) by a combination of shares transferred and cash paid to the Company
under clauses (a) and (b) above, effectively satisfy the obligation of the Employee to the Company
under this Section. If the Employee fails to satisfy his or her obligation to the Company under
this Section in full by the due date stated above, the Employee shall also pay to the Company
interest on the cash amount of such obligation (calculated pursuant to clause (b) above) from such
due date until paid in full at a rate of interest equal to the prevailing national “prime rate” of
interest on such due date plus an amount equal to the attorneys’ fees incurred by the Company in
collecting amounts due from the Employee under this Section. After the Return Shares (or the cash
equivalent) have been transferred back to the Company as required herein, the Company shall file
such federal and state tax returns or amended returns, amended W-2 forms, or other tax filings as
shall be required of it by applicable law or as reasonably requested by the Employee with respect
to all excess income and FICA taxes withheld and/or paid by the Company in connection with or
attributable to the Return Shares. The provisions of this Section shall not be applicable to Units
that are earned upon a Change in Control pursuant to Paragraph 9 of this Agreement.
11. Withholding. At the time of the settlement of Units by distribution of any shares
of Common Stock pursuant to Paragraph 7 of this Agreement, the Company has the right and power to
deduct or withhold, or require the Employee to remit to the Company, an amount sufficient to
satisfy all applicable tax withholding requirements with respect to such distributed shares. The
Company may permit or require the Employee to satisfy all or part of the tax withholding
obligations in connection with this Agreement by (a) having the Company withhold otherwise
distributable shares, or (b) delivering to the Company shares of Company Common Stock already owned
for a period of at least six (6) months (or such longer or shorter period as may be required to
avoid a charge to earnings for financial accounting purposes), in each case having a value equal to
the amount to be withheld, which shall not exceed the amount determined by the applicable minimum
statutory tax withholding rate (or such other rate as will not result in a negative accounting
impact). For these purposes, the value of the shares of Common Stock to be withheld or delivered
will be equal to the Fair Market Value as of the date that the taxes are required to be withheld.
12. Deferral of Distribution; Code Section 409A Compliance. The Employee may make a
one-time, irrevocable election to defer distribution of shares of Common Stock issued in settlement
of earned Units by completing and submitting a written election to the Company on such forms and
following such procedures as are required by the Company for effecting such elections. To be
effective, the election must be delivered to the Company by the date that is six months before the
last day of the Measurement Period and must specify an event or date for distribution of shares of
Common Stock from among the following: (a) separation of service, (b) Disability, (c) death, (d) a
fixed date, or (e) a Change in Control. The Employee’s right to defer, as well as all other
provisions of this Agreement, shall be interpreted and applied in a
manner consistent with the applicable standards for nonqualified deferred compensation plans
established by Internal Revenue Code Section 409A and its interpretive regulations and other
regulatory guidance. To the extent that any terms of this Agreement would subject the Employee to
gross income inclusion, interest, or additional tax pursuant to Code Section 409A, those terms are
to that extent superseded by, and shall be adjusted to the minimum extent necessary to satisfy, the
applicable Xxxx Xxxxxxx 000X xxxxxxxxx.
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00. Notices. All notices and other communications required or permitted under this
Agreement shall be written and delivered personally or sent by registered or certified first-class
mail, postage prepaid and return receipt required, addressed as follows: if to the Company, to the
Company’s executive offices in Batesville, Indiana, and if to the Employee or his or her successor,
to the address last furnished by the Employee to the Company. The Company may, however, authorize
notice by any other means it deems desirable or efficient at a given time, such as notice by
facsimile or electronic mail.
14. No Employment Rights. Neither the Plan nor this Agreement confers upon the
Employee any right to continue in the employ or service of the Company or a Subsidiary or
interferes in any way with the right of the Company or a Subsidiary to terminate the Employee’s
employment or service at any time.
15. Plan Controlling. The terms and conditions set forth in this Agreement are
subject in all respects to the terms and conditions of the Plan, which are controlling. All
determinations and interpretations of the Company are binding and conclusive upon the Employee and
his or her legal representatives. The Employee agrees to be bound by the terms and provisions of
the Plan.
16. Defined Terms. For purposes of this Agreement, the following terms have the
meanings provided in this Paragraph. The terms included in the Award Information section of this
Agreement have the values specified in that section. All other terms used in this Agreement as
capitalized defined terms shall have the meanings ascribed to them in the Plan.
(a) “Adjusted NOPAT” is net operating profit after tax adjusted for the following items
(net of tax where applicable):
(i) Income, losses or impairments from specific financial instruments held by
the Company immediately following the spin-off of the Company in 2008 (i.e., auction
rate securities, equity limited partnerships, common stock, and Forethought note);
(ii) Interest income on corporate investments and interest expense on corporate
debt;
(iii) Costs related to the spin-off of the Company in 2008;
(iv) All professional fees, due diligence fees, expenses, and integration costs
related to a specific acquisition;
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(v) Amortization expense of intangible long-lived assets where internally
generated costs are not customarily capitalized in the normal course of the business
(e.g.: customer lists, patents, etc.);
(vi) All adjustments made to net income related to changes in the fair value of
contingent earn-out awards;
(vii) External extraordinary, non-recurring, and material legal costs (e.g.:
antitrust litigation);
(viii) Restructuring charges and other items related to a restructuring plan
approved by the CEO; and
(ix) Changes in accounting pronouncements in United States GAAP or applicable
international standards that cause an inconsistency in computation as originally
designed.
(b) “Adjusted Cash Flows” means, with respect to each fiscal year in the Measurement
Period, the Company’s net cash provided by operating activities (whether positive or
negative) less its capital expenditures net of proceeds on the disposal of property, all as
shown on its audited financial statements for the fiscal year, as adjusted (net of tax where
applicable) to exclude the effects of the following items:
(i) Cash receipts or disbursements from financial instruments held by the
corporation immediately following the spin-off of the Company in 2008 (i.e., auction
rate securities, limited partnerships, and Forethought note);
(ii) Interest income on corporate investments and interest expense on corporate
debt;
(iii) Disbursements related to the spin-off of the Company in 2008;
(iv) External extraordinary, non-recurring, and material legal disbursements
(e.g., antitrust litigation);
(v) Changes in accounting pronouncements in United States GAAP or applicable
international standards that cause an inconsistency in computation as originally
designed; and
(vi) The cost of acquisitions, including all professional fees, due diligence
fees, expenses, and integration costs, amortized over a 36 month period beginning
the month after closing (payment of contingent earnouts (when made) shall be treated
as a component of the purchase price payment subject to a separate 36 month
amortization period at that time).
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(c) “Cause” means:
(i) if the Employee is a party to a written employment agreement with the
Company or a Subsidiary that defines “cause” or a comparable term, the definition in
that employment agreement, and
(ii) if not, the Company’s good faith determination that the Employee has:
(1) failed or refused to comply fully and timely with any reasonable
instruction or order of the Company or applicable Subsidiary, provided that
such noncompliance is not based primarily on the Employee’s compliance with
applicable legal or ethical standards;
(2) acquiesced or participated in any conduct that is dishonest,
fraudulent, illegal (at the felony level), unethical, involves moral
turpitude, or is otherwise illegal and involves conduct that has the
potential to cause the Company or a Subsidiary or any of their respective
officers or directors embarrassment or ridicule;
(3) violated any applicable Company or Subsidiary policy or procedure,
including the Company’s Code of Ethical Business Conduct; or
(4) engaged in any act that is contrary to the best interests of or
would expose the Company, a Subsidiary, their related businesses, or any of
their respective officers or directors to probable civil or criminal
liability, excluding the Employee’s actions in accordance with applicable
legal and ethical standard.
(d) “Disability” means:
(i) if the Employee, at termination of employment, is a party to a written
employment agreement with the Company or a Subsidiary that defines “disability” or a
comparable term, the definition in such employment agreement, and
(ii) if not, the Company’s good faith determination that the Employee is
eligible (except for the waiting period) for permanent disability benefits under
Title II of the Federal Social Security Act.
(e) “Good Reason” means, if the Employee, at termination of employment, is a party to a
written employment agreement with the Company or a Subsidiary, the definition given to that
term or a comparable term in that agreement, if any.
(f) “Retirement” means termination of employment after having:
(i) completed at least five years of service in the aggregate with the Company,
Hill-Rom Holdings, Inc. (formerly known as Xxxxxxxxxxx Industries, Inc.), or any
Subsidiaries of either of them, and
(ii) reached age fifty-five (55).
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IN WITNESS WHEREOF the Company and the Employee have executed this Agreement as of the date
first above written.
| [EMPLOYEE SIGNATURE] | ||||||
| Print Name: | ||||||
| XXXXXXXXXXX, INC. | ||||||
| By: | ||||||
| Print Name: | ||||||
| Title: | ||||||
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