etrials Worldwide, Inc. Executive Bonus Agreement
Exhibit
99.E.8
etrials
Worldwide, Inc.
This Executive Bonus Agreement (“Agreement”) is entered into as
of [date], 2009, by and
between etrials Worldwide, Inc., a Delaware corporation (the “Corporation”), and
[__________], [__________] of the Corporation (the “Employee”).
In
consideration of the mutual promises set forth below, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Bonus
Criteria: Unless an Acceleration Event occurs, the Employee
will become eligible to receive a bonus in cash and Shares (as defined below) in
2009 (the “Bonus”) only
if the Corporation’s fiscal year 2009 earnings before interest, taxes,
depreciation and amortization are a deficit of no more than $________ (the
“EBITDA
Threshold”). Except as set forth in Paragraph 5,
Employee’s Bonus, if any, will be no more than $_____, based on the value of the
Shares set forth below. The Corporation shall pay half of any Bonus
in immediately available U.S. dollars not to exceed $_____ and half in Shares
(as defined below), not to exceed _____ Shares (calculated based on the price
per share of the Corporation’s Common Stock as quoted on NASDAQ as of the close
of trading on February 23, 2009, of $0.69 per share). Except as set
forth in Paragraph
4, the Corporation must pay all Bonus payments no later than March 15,
2010.
2. Restricted Stock
Grant. On the date of this Agreement, the Corporation shall
grant the Employee _____ shares of Common Stock of the Corporation (the “Shares”). The
Shares granted under this Agreement are Restricted Shares as defined in, and are
governed by, the 2005 Performance Equity Plan (the “Equity Plan”) and are subject
to forfeiture in accordance with the provisions of the Equity
Plan. The Employee’s rights to the Shares and Retained Distributions
(as defined in the Equity Plan), if any, with respect to the Shares, will vest
when the Committee determines whether the Corporation has achieved the
performance conditions under Paragraph
3. Any Shares and Retained Distributions that do not vest will
be forfeited to the Corporation, and the Employee will not thereafter have any
rights with respect to such Shares and Retained Distributions that have been so
forfeited.
3. Performance
Conditions.
a. If
the Corporation achieves the EBITDA Threshold, the Committee shall award the
Bonus as follows:
[__________].
b. “Target Percentage” means the
percentage, capped at 100%, calculated by dividing the Corporation’s actual
result for a given metric, as reflected in the Corporation’s books and records,
by the applicable Target Metric set forth below. “Target Metric” means the applicable
fiscal year 2009 financial goals set forth below in subparagraphs (__) through
(__). The Committee may only award the portion of the Bonus
associated with a specific Target Metric if the Target Percentage for that
Target Metric equals or exceeds 80%. The Target Metrics are as
follows:
[__________].
4. Acceleration
Event.
a. If
an Acceleration Event occurs, (i) the Corporation shall pay the Employee,
in immediately available U.S. dollars, 100% of the then-unpaid portion of the
Bonus and (ii) Employee’s rights to then-unvested Shares or the Retained
Distributions with respect to the then-unvested Shares will vest immediately and
automatically. The Corporation must pay any amounts owed under this
Paragraph 4
within 30 days after the Employee’s termination.
b. “Acceleration Event” occurs if
a Change in Control of the Corporation closes or is consummated in 2009 and,
within 180 days of the closing of the event that effected the Change in Control,
either (i) the surviving entity terminates the Employee’s employment with the
Corporation for any reason other than Cause or (ii) Employee terminates his
employment for Good Reason upon delivery of written notice to the surviving
entity, specifying the grounds constituting Good Reason.
c. “Change in Control” shall be
deemed to occur if (i) the direct or indirect beneficial ownership (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended (the
“Act”), and Regulation 13D thereunder) of 50% or more of the outstanding shares
of common stock is acquired or becomes held by any person or group of persons
(within the meaning of Section 13(d)(3) of the Act), but excluding the
Corporation and any employee benefit plan sponsored or maintained by the
Corporation; (ii) a capital reorganization, merger or consolidation involving
the Corporation closes or is consummated, unless (A) the transaction involves
only the Corporation and one or more of the Corporation’s parent corporation and
wholly-owned (excluding interests held by employees, officers and directors)
subsidiaries, or (B) the shareholders who had the power to elect a majority of
the board of directors of the Corporation immediately prior to the transaction
have the power to elect a majority of the board of directors of the surviving
entity immediately following the transaction; or (iii) the sale of all or
substantially all of the Corporation’s assets to another corporation, person or
business entity closes or is consummated.
d. “Cause” has the meaning given
that term in the Employment Agreement made and entered into as of [_____], 2008,
by and between etrials, Inc. and Employee.
e. “Good Reason” means the
occurrence of any of the following without Employee’s consent:
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i.
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Employee’s
base salary is materially reduced;
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ii.
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Employee
is transferred to a job location that is more than 50 miles (by most
direct highway route) from the Corporation’s current principal place of
business;
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iii.
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the
surviving entity materially breaches the terms of Employee’s employment
agreement; or
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iv.
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Employee’s
operating responsibilities with the surviving entity are a material
reduction from his responsibilities with the
Corporation. However, for purposes of this paragraph, none the
following occurrences, on its own, constitutes a material reduction in
responsibilities:
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1.
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if
the Corporation becomes a subsidiary or operating division or segment of
another entity;
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2.
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if
the Corporation ceases to be a reporting company under the Securities
Exchange Act of 1934; or
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3.
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if
Employee no longer reports directly to the Chief Executive
Officer.
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f. Other
than as specifically provided in this Executive Bonus Agreement with respect to
Employee’s Bonus after an Acceleration Event, the terms Employee’s Employment
Agreement remain in full force and effect.
5. Salary
Adjustment. If Employee’s annual base salary is greater than
$_____ on the payment date of the Bonus, then Employee’s potential Bonus will
increase by an amount equal to __% of the difference between Employee’s annual
base salary on the payment date of the Bonus and $_____, with such additional
amount payable according to the terms of this Agreement, except that the
Committee may pay the Additional Bonus in immediately available U.S. dollars or
Shares as it determines in its sole discretion.
6. Bonus Plan
Governs. The terms and conditions of the 2008 Executive
Incentive Bonus Plan govern this Agreement. Any capitalized term not
defined in this Agreement has the definition given that term in the Bonus
Plan.
[Signature Page
Follows]
IN
WITNESS WHEREOF, the parties have executed this Executive Bonus Agreement as of
the day and year set forth above.
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CORPORATION:
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etrials
Worldwide, Inc.
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By:
____________________________
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Name:
__________________________
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Title:
___________________________
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EMPLOYEE:
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_______________________________
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__________
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__________
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