CLARK, INC. PERFORMANCE SHARE AWARD AGREEMENT
Exhibit
10.30
XXXXX,
INC.
THIS
PERFORMANCE SHARE AWARD AGREEMENT (the “Agreement”) is made and entered into as
of October 25, 2005, between Xxxxx, Inc., a Delaware corporation (the
“Company”), and __________________ (the “Employee”), an individual currently
employed by the Company or one of its subsidiaries or affiliates.
1. Award
of Performance Shares.
The
Company hereby awards to Employee _____________ Performance Shares (the “Target
Number”) pursuant to the terms of the Xxxxx, Inc. Incentive Compensation Plan.
For the period January 1, 2005 through December 31, 2007 (the “Performance
Period”), the number of shares awarded will be based on the achievement of a
cumulative, fully diluted earnings per share (“EPS”) target during the
Performance Period with such EPS target as determined by the Board of Directors
as soon as reasonably practicable following grant of this award. The percentage
of the Target Number of Performance Shares earned during the Performance Period
will be determined by the Board of Directors based on the following
table:
|
3
Year Performance
As
% of EPS Target
|
Percentage
of
Target
Number
Earned
|
|
<80%
|
25%
|
|
80%
but less than 90%
|
30%
|
|
90%
but less than 100%
|
40%
|
|
100%
but less than 110%
|
50%
|
|
110%
but less than 120%
|
150%
|
|
120%
or more
|
200%
|
2. Vesting
Schedule.
Subject
to Sections 1, 5 and 6 hereof, the Performance Shares shall vest 100% on
December 31, 2007 (the “Vesting Date”).
3. Payment
or Conversion of Performance Shares.
(a) Within
90
days following the Vesting Date, the Company shall deliver to Employee the
number of shares of common stock of the Company (“Stock”) corresponding to the
vested Performance Shares (as determined under Section 1 above). The Stock
used
for this purpose may come from the Company’s authorized but unissued shares, or
from the Company’s treasury shares.
(b) At
or
about the time that shares of Stock corresponding to vested Performance Shares
are delivered to Employee, the Company shall also deliver to Employee an amount
in cash equal to the product of (i) the amount of dividends paid during the
Performance Period on each share of Stock multiplied by (ii) the number of
vested Performance Shares delivered to Employee.
4. Non-transferability.
Except
to the extent otherwise determined by the Company, no Performance Shares shall
be assignable or otherwise transferable by Employee other than by will or by
the
laws of descent and distribution and, unless otherwise provided by the Company,
during the life of Employee any elections with respect to Performance Shares
may
be made only by Employee or Employee’s guardian or legal
representative.
5. Termination
of Employment.
(a) Except
to
the extent provided in Section 6 hereof or any employment agreement or
severance agreement between Employee and the Company or any of its subsidiaries
or affiliates, the provisions of this Section 5 shall apply to unvested
Performance Shares upon Employee’s termination of employment with the Company
and all subsidiaries or affiliates of the Company (“Termination”) for any
reason.
(b) In
the
event of Employee’s Termination before the end of the Performance Period by
reason of death, disability, retirement or termination by the Company without
“cause,” all Performance Shares shall become immediately vested at the maximum
performance level (i.e., 200% of the Target Number), but only with respect
to
previously awarded shares during the Performance Period. “Disability” for this
purpose means the Employee’s inability, due to physical or mental incapacity, to
substantially perform his or her duties and responsibilities of employment
for a
period of 180 days in any consecutive nine-month period. “Cause” shall have the
meaning set forth in the employment agreement applicable to
Employee.
(c) Unless
the Committee provides otherwise, in the event of Employee’s Termination during
the Performance Period for any reason other than as provided in
Section 5(b), all Performance Shares shall be canceled and
forfeited.
6. Change
in Control.
(a) In
the
event of a Change in Control on or prior to the end of the Performance Period,
any outstanding Performance Shares shall become immediately vested at the
maximum performance level (i.e., 200% of the Target Number). For purposes of
this Agreement, a “Change in Control” shall be deemed to have occurred if
(i) the Company becomes a subsidiary of another corporation or entity or is
merged or consolidated into another corporation or entity or substantially
all
of the assets of the Company is sold to another person, corporation, partnership
or other entity; or (ii) any person, corporation, partnership or other
entity, either alone or in conjunction with its “affiliates,” as that term is
defined in Rule 405 of the General Rules and Regulations under the Securities
Act of 1933, as amended, or other group of persons, corporations, partnerships
or other entities who are not “affiliates” but who are acting in concert, other
than Employee or Employee’s family members or any person, organization or entity
that is controlled by Employee or Employee’s family members, becomes the owner
of record or beneficially of securities of the Company that represent 33 1/3%
or
more of the combined voting power of the Company’s then outstanding securities
entitled to elect the Board of Directors of the Company; or (iii) the Board
of Directors of the Company or a committee thereof makes a determination in
its
reasonable judgment that a “Change in Control” has taken place.
(b) If
a
Participant has a tax gross-up provision under an employment agreement with
respect to excise taxes imposed under Code Sections 280G or 4999, any such
excise taxes relating to the vesting of Performance Shares in connection with
a
Change in Control shall be grossed-up in the same way as other compensation
and
benefits are grossed-up under the applicable employment agreement. If a
Participant does not have an applicable tax gross-up provision, any excise
taxes
relating to the vesting of Performance Shares in connection with a Change in
Control shall be fully grossed-up if the vesting of the Performance Shares
governed by this Agreement (together with the vesting of Performance Shares
governed by any other performance share agreement, but without taking into
account any other compensation or benefits payable to the Participant) by itself
results in “excess parachute payments” as defined in Code Section
280G.
7. Withholding
Tax.
Employee may be subject to withholding taxes as a result of the vesting or
settlement of Performance Shares. Employee shall pay to the Company in cash,
promptly when the amount of such obligations become determinable, all applicable
federal, state, local and foreign withholding taxes that result from such
settlement. Notwithstanding the foregoing, the Company may determine to withhold
shares of Stock to pay the amount of tax required to be withheld upon settlement
of Performance Shares, unless Employee has otherwise provided for payment of
withholding taxes. Any shares of Stock so withheld will be valued as of the
date
they are withheld. In no event will the value of shares withheld exceed the
required federal, state, local and foreign withholding tax obligations as
computed by the Company.
8. Administration.
The
Performance Shares awarded by this Agreement will be administered by the
Committee, whose decisions and determinations will be final and binding.
Participation is this program does not represent a guarantee of continued
employment.
9. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
10. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES.
|
XXXXX,
INC.
By:
Name:
Title:
|
|
|
[Name
of Employee]
|
